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ROY H. GROVE v. ZONING HEARING BOARD THORNBURY TOWNSHIP AND JAMES GREER (01/18/79)

decided: January 18, 1979.

ROY H. GROVE, JR. AND SHIRLEY R. GROVE, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF THORNBURY TOWNSHIP AND JAMES GREER, APPELLEES



Appeals from the Orders of the Court of Common Pleas of Delaware County in case of Roy H. Grove, Jr. and Shirley R. Grove, his wife v. Zoning Hearing Board of Thornbury Township and James R. Greer, No. 1828 of 1976.

COUNSEL

William L. McLaughlin, for appellants.

Fronefield Crawford, Jr., for appellee, James R. Greer.

Sondra K. Slade, with her, of counsel, Pepper, Hamilton & Scheetz, for appellee, Township of Thornbury.

Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle. Judge MacPhail concurs in the result only.

Author: Disalle

[ 40 Pa. Commw. Page 49]

We have before us two appeals filed by Roy H. Grove, Jr., and his wife, Shirley R. Grove (Appellants), from separate orders of the Court of Common Pleas of Delaware County. The lower court's order, dated March 2, 1977, denied Appellants' appeal and affirmed the decision of the Zoning Hearing Board of Thornbury Township (Board) granting a special exception to James R. Greer (Landowner). The lower court's order, dated June 13, 1977, required Appellants to post an additional bond of $2,000.00, making the total amount of the bonds to be posted $4,000.00. The two appeals have been consolidated here for our determination.

Landowner originally appealed to the Board for a variance or special exception to erect a two-story addition to his dwelling house which would extend an additional nine feet two inches into the side yard setback. On January 13, 1976, after a hearing, the Board granted a special exception. Appellants, adjoining property owners, appealed the decision to the court below. Notice of this appeal was served upon Landowner on February 17, 1976. Thereafter, the Township intervened in defense of the decision of its Board. On April 14, 1976, Landowner petitioned to intervene nunc pro tunc. The lower court granted this petition on August 6, 1976. Prior thereto, Landowner had petitioned the lower court to require Appellants to post

[ 40 Pa. Commw. Page 50]

    bond pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11008(4). After hearings on the petition, and pursuant to the court's order, Appellants posted a $2,000.00 bond on September 1, 1976. On March 2, 1977, the court sustained the Board's decision granting the special exception, and on March 25, 1977, Appellants filed an appeal to this Court. Landowner then filed a Petition to Increase Bond before the court below on April 29, 1977. The petition was granted on June 13, 1977, and Appellants, without posting the bond, timely appealed to this Court. Subsequently, Landowner filed a motion to quash both appeals. We will consider the issues raised in each appeal separately.

As has been indicated, after Appellants had taken their appeal to this Court, the lower court considered and granted Landowner's petition to increase the bond which had originally been posted. In so doing, the court below stated that since the imposition and regulation of a bond is ancillary to the merits of the zoning appeal, and since no appeal had been taken from the initial imposition of bond, it had both the jurisdiction and authority to increase that bond. We disagree.

In the first place, we consider it of no consequence that Appellants did not appeal from the setting of the original bond at $2,000.00. Landowner's petition to increase the bond was a separate and distinct matter; in no way did it relate back or amount to a continuation of the prior bond determination. Furthermore, even if the court below was vested with authority to increase the bond originally ...


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