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AN APPEAL FROM ORDER NETHER PROVIDENCE ZONING HEARING BOARD DATED APRIL 28 (06/04/76)

decided: June 4, 1976.

IN RE: AN APPEAL FROM THE ORDER OF THE NETHER PROVIDENCE ZONING HEARING BOARD DATED APRIL 28, 1975 DISMISSING APPLICATION NO. 238, AN APPEAL FROM THE ADOPTION OF NETHER PROVIDENCE ORDINANCE NO. 463, BROUGHT BY LEONARD E. MAMMUCARI, JR. AND ROBERT L. ANTHONY, ON JANUARY 24, 1975. ROBERT L. ANTHONY, APPELLANT; NICOLE ENTERPRISES, INC., APPELLEE. IN RE: AN APPEAL FROM THE ENACTMENT OF NETHER PROVIDENCE TOWNSHIP ORDINANCE NO. 463 ON DECEMBER 19, 1974 BY THE TOWNSHIP BOARD OF COMMISSIONERS NUNC PRO TUNC. ROBERT L. ANTHONY, APPELLANT; NICOLE ENTERPRISES, INC., APPELLEE


Appeals from the Orders of the Court of Common Pleas of Delaware County in cases of In Re: Robert Anthony v. Nether Providence Township Zoning Hearing Board, No. 75-7158; and In Re: Appeal from the Enactment of Nether Providence Township Ordinance No. 463, on December 19, 1974, by the Township Board of Commissioners, No. 75-11924.

COUNSEL

Albert J. Slap, with him Robert L. Anthony, for appellant.

Robert James Jackson, with him Kassab, Cherry and Archbold, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Kramer did not participate in the decision in this case. Judge Rogers dissents.

Author: Mencer

[ 25 Pa. Commw. Page 42]

Nicole Enterprises, Inc. (Nicole) is the owner of an unimproved parcel of land consisting of 47.9 acres in Nether Providence Township, Delaware County. The Board of Commissioners of Nether Providence Township held a public meeting on December 5, 1974 to consider the enactment of a new ordinance, the effect of which would be to create a new zoning classification in the township, namely, an R-5c multiple

[ 25 Pa. Commw. Page 43]

    dwelling district, and to rezone the property of Nicole to the new zoning classification. This new ordinance (No. 463) was enacted on December 19, 1974. Leonard E. Mammucari, Jr., and appellant, Robert L. Anthony, filed an appeal with the Zoning Hearing Board of Nether Providence Township (Board) challenging the validity of the new ordinance.

On April 28, 1975, the Board dismissed the appeal, and from this decision appellant filed an appeal to the Court of Common Pleas of Delaware County. Nicole, appellee by intervention, filed a petition seeking to require appellant to post bond under the provisions of Section 1008(4) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11008(4), as a condition to proceeding further with the appeal.*fn1 Following a hearing on July 9, 1975, the court below entered an order directing appellant to provide a bond in the sum of $15,000 no later than July 11, 1975, an additional bond of $20,000 by October 1, 1975, an additional bond of $25,000 by January 1, 1976, and an additional bond of $5,000 each month starting with the month of February 1976.

Appellant failed to file the $15,000 bond on July 11, 1975, and the court below entered an order on that date dismissing appellant's appeal. An appeal to this

[ 25 Pa. Commw. Page 44]

    court from the July 9 and July 11, 1975 orders was docketed at No. 1121 C.D. 1975.

On August 8, 1975, appellant filed a nunc pro tunc appeal with the Court of Common Pleas of Delaware County, challenging the enactment of Nether Providence Township Ordinance No. 463 on December 19, 1974. Nicole was permitted to intervene in this appeal and filed a motion to quash the appeal. The basis for the motion was that this appeal was untimely and an improper collateral attack upon the order of July 11, 1975 dismissing appellant's appeal which also challenged the validity of Ordinance No. 463. On November 25, 1975, the court below entered an ...


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