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BARTON E. SCHLEGEL AND LUCILLE J. SCHLEGEL v. ZONING HEARING BOARD BOROUGH NORTHAMPTON AND MARKET OPERATORS (03/31/76)

decided: March 31, 1976.

BARTON E. SCHLEGEL AND LUCILLE J. SCHLEGEL, HIS WIFE, AND JOHN C. YASTRZAB AND CAROLINE YASTRZAB, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF NORTHAMPTON AND MARKET OPERATORS, INC., APPELLEES. (2 CASES)



Appeals from the Order of the Court of Common Pleas of Northampton County in case of Barton E. Schlegel and Lucille J. Schlegel, his wife, and John C. Yastrzab and Caroline Yastrzab his wife v. Zoning Hearing Board of the Borough of Northampton and Market Operators, Inc., No. 348 August Term, 1974.

COUNSEL

Martin Cohen, with him Robert M. Davison, for appellants.

Robert C. McFadden, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., and Blatt. Judges Mencer and Rogers did not participate. Opinion by Judge Wilkinson. Concurring Opinion by Judge Blatt.

Author: Wilkinson

[ 24 Pa. Commw. Page 185]

On September 26, 1974, the appellee zoning hearing board granted appellee corporation a variance to permit a change from one nonconforming use to another, thereby allowing the construction and operation of a retail food supermarket. Appellants, neighboring landowners, appealed that decision to the Court of Common Pleas of Northampton County on October 16, 1974. However, pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11008(4), appellee corporation petitioned the court to enter an order directing appellants to post a bond as a condition to proceeding with the appeal. A hearing was held on April 25, 1975, at which the only evidence presented was that by appellee corporation regarding the damages it would incur as a result of the litigation. The same day the court entered an order directing appellants to post a bond in the amount of $100,000.00 within 15 days of service of the order or else suffer dismissal of the appeal. On May 7, 1975, appellants, alleging that a $100,000.00 bond was without their financial means, petitioned the court to

[ 24 Pa. Commw. Page 186]

    take additional testimony regarding the availability of the bond to appellants and to amend the bond order of April 25, 1975, accordingly. The court entered an order the same day denying the petition.

Appellants have now appealed to this Court from both the order of April 25, 1975, and the order of May 7, 1975, challenging the constitutionality of Section 1008(4) and the discretion of the lower court in ordering the posting of the bond. The two appeals have been consolidated here for our determination.

As their first line of argument, appellants constitutionally attack Section 1008(4) on three grounds. Section 1008(4) provides:

"The filing of an appeal in court under this section, shall not stay the action appealed from but the appellants may petition the court having jurisdiction of zoning appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of another, whether or not a stay is sought by them, the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court."

First, appellants assert that the bond provisions of Section 1008(4) violate equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States by separating prospective appellants into those who can and those who cannot afford to post bond, i.e., discrimination on the basis of wealth. Second, appellants assert that the provisions violate due process of the law as guaranteed by the Fourteenth ...


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