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FRIEDMAN v. ABINGTON TOWNSHIP (03/16/73)

decided: March 16, 1973.

FRIEDMAN
v.
ABINGTON TOWNSHIP, ET AL.



Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Shirley Friedman v. Township of Abington and Leonard H. Caplan, No. 72-6438, Zoning Appeal.

COUNSEL

J. Peirce Anderson, with him Frederick W. McBrien, III, and Bean, DeAngelis, Kaufman & Kane, for appellant.

Daniel B. Michie, Jr., for appellee, Abington Township.

Donald A. Gallager, with him Richard W. Berlinger, and Waters, Fleer, Cooper & Gallager, for appellee, Leonard H. Caplan.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 8 Pa. Commw. Page 42]

Section 914 of the Pennsylvania Municipalities Planning Code*fn1 (MPC), 53 P.S. § 10914, provides that any aggrieved party may appeal to the zoning hearing board where it is alleged by the appellant that the zoning officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the zoning officer. Section 915 of the MPC, 53 P.S. § 10915, is directed to the time limitations of the appeals provided for in section 914. Section 916 of the MPC, 53 P.S. § 10916, provides, inter alia, that "[w]hen an application for development, preliminary or final, has been duly approved and proceedings designed to reverse or limit the approval are filed with the board by persons other than the applicant, the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board."

These three sections are the concluding sections of article IX of the MPC, which article deals with the zoning hearing board. They constitute an intertwined

[ 8 Pa. Commw. Page 43]

    authority for appeals to the board and the stay and continuation of proceedings before the board. We view these sections as being closely interrelated.

On June 5, 1972, an appeal was filed before the Zoning Hearing Board of Abington Township by Shirley Friedman (Friedman), through and by her counsel, Sidney M. DeAngelis, Esquire. The appeal from the issuance of building permits to a Leonard Caplan (Caplan), granting him permission to build a gardentownhouse apartment project, was filed pursuant to section 914 of the MPC.

On June 8, 1972, a petition for bond was filed in the Court of Common Pleas of Montgomery County by counsel for Caplan pursuant to the provisions of section 916 of the MPC. Attached to the petition was an order which was completed by the lower court setting 1:00 p.m., June 20, 1972, as the time for a hearing on the petition.

Shirley Friedman was never personally served with a copy of the petition for bond or the order setting the time for the hearing. Counsel for Caplan served a copy of the petition and order on Sidney M. DeAngelis, Esquire. Prior to June 20, 1972, both Attorney DeAngelis and one of his partners, J. Peirce Anderson, Esquire, contacted Caplan's counsel and requested a continuance of the hearing, but in each instance the request for agreement to a continuance was refused. Neither Attorney DeAngelis nor Attorney Anderson ever entered an ...


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