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STANLEY DES MARAIS v. KENNETT CONSOLIDATED SCHOOL DISTRICT (03/01/78)

decided: March 1, 1978.

STANLEY DES MARAIS, APPELLANT
v.
KENNETT CONSOLIDATED SCHOOL DISTRICT, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Stanley Des Marais v. Kennett Consolidated School District, No. 75 Equity 1976.

COUNSEL

Edward Gerard Conroy, for appellant.

Robert B. Surrick, with him John R. Merrick, for appellee.

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

Author: Crumlish

[ 34 Pa. Commw. Page 119]

Stanley Des Marais (Appellant) appeals an order of the Court of Common Pleas dismissing his action in equity seeking to enjoin Kennett Consolidated School District (District) from proceeding with the proposed construction and renovation of the District's high school.

The complaint in equity was filed on June 1, 1976, alleging violations of the Public School Code of 1949*fn1 and the act popularly known as the Sunshine Law.*fn2 On August 24, 1976, the District filed a Petition to Dismiss Complaint or Require the Filing of a Bond. In its petition, the District alleged that, among other things, it was unable to float a bond issue to finance its proposed construction or accept construction bids

[ 34 Pa. Commw. Page 120]

    on the project due to the pending lawsuit and, accordingly, requested the court to order Appellant to post bond. In response, the court scheduled a hearing for September 13, 1976, at which time Appellant was ordered "to show cause why the request of the Petition should not be granted." On September 21, 1976, after hearing, Appellant was ordered to post bond in the sum of $250,000 or suffer dismissal of its action for failure to do so. On October 18, 1976, Appellant's action was dismissed in accordance with the court's prior direction. This appeal resulted.

Appellant contends that the court below lacked authority, in this instance, to require Appellant to post bond. The District, on the other hand, argues that a court in equity has inherent power to require the posting of a bond in a situation such as this. Appellant denies that courts have any such inherent power and instead points to the careful pattern of regulation of this power*fn3 most of which, it contends, would be superfluous if inherent power were found to exist.

Citing Bobb v. Muhlenberg Township School District, 62 Berks L.J. 221 (1970), which our research discloses to be the only reported Commonwealth decision dealing with this question, the District argues in its brief that a bond is appropriate (1) when in effect, the plaintiff receives the benefit of a preliminary injunction, even though not requesting it, (2) when a large financial loss may result to the defendant if it is ultimately determined that the plaintiff has no cause of action or abandons the proceedings, and (3) when there is grave doubt that the plaintiff has an equitable cause of action. Though there may be some logic in the set of criteria outlined by the

[ 34 Pa. Commw. Page 121]

District, we find the analogy between the set of circumstances set forth above and those involving the typical ...


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