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APPEAL RALPH DESTEFANO AND ANNA DESTEFANO v. TURTLE CREEK ZONING BOARD ADJUSTMENT (06/07/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 7, 1978.

IN RE: APPEAL OF RALPH DESTEFANO AND ANNA DESTEFANO, HIS WIFE, APPELLANTS
v.
TURTLE CREEK ZONING BOARD OF ADJUSTMENT, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal by Ralph DeStefano and Anna DeStefano, his wife, from the Decision of the Turtle Creek Zoning Board of Adjustment, No. S.A. 488 of 1977.

COUNSEL

G. N. Evashavik, with him Evashavik, Copone, Evans & Della Vecchia, for appellants.

Alan Papernick, with him Papernick & Gefsky, for intervenor.

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

Author: Wilkinson

[ 35 Pa. Commw. Page 644]

In 1976 the Turtle Creek Zoning Board of Adjustment (Board) granted a variance to the intervenor herein, John Sarandis, to construct a 12-unit apartment building in an R-2 residential district in the Borough of Turtle Creek. Neighboring landowners, not parties to this appeal, appealed to the Allegheny County Court of Common Pleas. The Court, by Judge Silvestri Silvestri, remanded the case to the Board to make findings of fact and conclusions of law. This was done and the Board affirmed its earlier decision. Following this action, the appellants here appealed that decision to the court of common pleas. Thereafter, the intervenor filed a petition to require the appellants post bond 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).*fn1 Following a hearing held on July

[ 35 Pa. Commw. Page 64526]

, 1977 on this petition (as well as a petition for a supersedeas by appellants) at which time the court heard oral arguments but no testimony was presented, the court entered an order directing the appellants to provide a bond in the amount of $100,000 as a condition of continuing the appeal. Appellants failed to file a bond and on September 12, 1977 Judge Silvestri dismissed the appeal. We affirm the dismissal.

Appellants have raised two questions before this Court: (1) Whether the order requiring and setting the amount of bond is fatally defective because no testimony was presented regarding the alleged sufficiency of the bond;*fn2 and (2) Whether it was improper for the intervenor to seek an order requiring the posting of bond from Judge Silvestri.

With regard to the first issue, this Court has held that where a petition to post bond is made by the landowner pursuant to Section 1008(4) of the Code, the court must determine the amount of damages the landowner will suffer as a result of the delay caused by the protestants' appeal and set bond accordingly. Anthony Appeal, 25 Pa. Commonwealth Ct. 41, 358 A.2d 874 (1976). It is inherent in this rule that the court must have, as appellants suggest, a factual basis upon which to determine the amount of bond that should be required, if any. There is no record here of what

[ 35 Pa. Commw. Page 646]

    precisely occurred at the hearing held on July 26, 1977, although it is clear the court had before it the petition to require bond which included statements as to the purchase price of the property in question ($15,677) and the estimated cost of construction ($298,800) as well as an architect's cost estimate submitted as an exhibit. Thus, a factual basis for the amount and sufficiency of the bond was in fact before the court. Moreover, both parties agree that at the hearing before Judge Silvestri both sides were given an opportunity to present oral argument where it would have been appropriate for appellants' counsel to challenge the sufficiency of bond by calling witnesses and presenting his own factual averments for the court's consideration. There is no record that the court refused to hear any testimony or evidence offered by appellants. Accordingly, we find nothing in the record to support the allegation that appellants were denied the right to be heard in this issue. Similarly, we find appellants were not denied procedural due process with regard to the inability to cross-examine witnesses, since there is no record appellants were ever refused a requested opportunity to have the landowner or his architect testify under oath concerning the accuracy of cost estimates.

Turning to the second issue, we find no merit in appellants' contention that it was improper for the intervenor to present his petition to Judge Silvestri to set bond and improper for Judge Silvestri to hear and rule on this petition. Although the record is sparse on this issue, as well as the first, it is clear that Judge Silvestri was assigned and heard the original appeal which resulted in a remand to the Board. It is also clear that after the appellants here became the protesters of record, that counsel for both appellants and the intervenor presented petitions to Judge Silvestri, appellants seeking a supersedeas and intervenor

[ 35 Pa. Commw. Page 647]

    seeking that appellants be ordered to post bond. Thus, this is not a case of a litigant unilaterally selecting his own forum unrelated to the matter in issue*fn3 or of a judge entering an order in a cause over which he had no initial jurisdiction.*fn4

Accordingly, we will enter the following:

Order

And Now, June 7, 1978, the order of the Court of Common Pleas of Allegheny County at S.A. No. 488 of 1977, dated September 12, 1977, is hereby affirmed.

Disposition

Affirmed.


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