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CHALLENGE TO VALIDITY WARREN BOROUGH ZONING ORDINANCE NO. 1127 BY BERNARD J. HESSLEY. BERNARD J. HESSLEY (04/24/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: April 24, 1979.

IN RE: CHALLENGE TO THE VALIDITY OF WARREN BOROUGH ZONING ORDINANCE NO. 1127 BY BERNARD J. HESSLEY. BERNARD J. HESSLEY, APPELLANT

Appeal from the Order of the Court of Common Pleas of the 37th Judicial District, Warren County Branch, in case of In Re: Challenge to the Validity of Warren Borough Zoning Ordinance, No. 1127 by Bernard J. Hessley, No. 482 of 1977.

COUNSEL

Bernard J. Hessley, for appellant.

John P. Edgar, with him Alan A. Garfinkel, and Berkman, Ruslander, Pohl, Lieber & Engel, for appellee.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 42 Pa. Commw. Page 212]

On June 14, 1977, at the request of the Warren General Hospital (Hospital) and upon recommendation of the Warren Borough Planning Commission, the zoning ordinance of the Borough of Warren was amended rezoning a certain area from R-2 Low Density Residence District classification to C-1 Service and Professional District classification. The effect of the rezoning was to permit Hospital to construct a physician office building adjacent to Hospital, as well as parking facilities.

We affirm in this appeal the order of the Trial Court which refused proffered evidence on the underlying merits of the appeal and that offered in support of Bernard J. Hessley's inability to post an Appeal Bond.

[ 42 Pa. Commw. Page 213]

A challenge was filed to an amendment to the Borough Zoning Ordinance by Bernard J. Hessley, Appellant, on the ground that the amendment constitutes illegal spot zoning. Hospital petitioned the Warren County Branch, Court of Common Pleas under Section 916 of the Pennsylvania Municipalities Planning Code (MPC)*fn1 to require Hessley to post a bond as a condition to continuing his challenge to the ordinance.*fn2 On November 15, 1977, the Honorable Robert L. Wolfe considered only evidence regarding the damages that would be incurred in delays caused by the litigation. Hessley, pro se, sought to offer testimony on the merits of the appeal. Specifically, he made an offer of proof that the amendment to the zoning ordinance is unconstitutional as spot zoning and an offer of proof that he lacked the financial inability to post an appeal bond.*fn3

Following the hearing of November 15, the court entered an order directing Hessley to post a $24,000 bond for the six-month period commencing November 15, 1977, to be followed by posting a like bond for each succeeding six-month period thereafter during the pendency of the zoning appeal. Appellant then filed a petition for reconsideration of the November 15 order. It was denied on November 23, 1977. Appellant was granted 15 days from November 15 to file the bond. He did not post the required bond, and then filed a praecipe with the prothonotary of the Trial Court to enter final judgment, so that there would be an appealable

[ 42 Pa. Commw. Page 214]

    order under Pa. R.A.P. No. 301(c). It is from the entry of this judgment that Appellant appeals to this Court.*fn4

Hessley contends that Section 916 of the MPC as it existed at the time of the bond hearing violated the due process clause of the Pennsylvania Constitution as well as the due process and equal protection clauses contained in the 14th Amendment of the United States Constitution.*fn5 Specifically, he asserts that the bond provisions of Section 916 deny a would-be appellant who cannot afford to post a bond the right to be heard on appeal in violation of Article I, Section 11 of The Pennsylvania Constitution and the 14th Amendment to the United States Constitution. He further asserts

[ 42 Pa. Commw. Page 215]

    that Section 916 violates the Equal Protection Clause of the 14th Amendment insofar as it categorizes prospective appellants into those who can and those who cannot afford to post bond, i.e., discrimination on the basis of wealth. While he recognizes that this Court has recently considered similar constitutional attacks on Section 916 and found that the statutory provisions herein challenged do not violate due process or equal protection of the law, he would have us reconsider those decisions and remand for consideration of the merits of the appeal before ordering a bond be posted as well as a determination of his financial ability to post the bond. This we decline because the Trial Court properly followed the legislative mandate of Section 916 of the MPC as it was then written and interpreted by this Court. In its hearing the court below properly limited itself to a consideration of the amount of damages to be incurred by Hospital as a result of the delay in the proposed construction and correctly excluded from the hearing Appellant's proof concerning the underlying merits of the zoning appeal.

While Section 916 provides that whether or not the petition for bond should be granted and the amount of such bond rests in the sound discretion of the court, we held in Hercek, supra, that the court's inquiry is limited to a determination of the reasonably anticipated damages a landowner will suffer as a result of the delay caused by the appeal. We specifically held that the issues of the underlying merits of the appeal and protestant's financial ability to post bond were beyond the purview and scope of the immediate issue before the court in bond hearing under Section 916. Such evidence is irrelevant to the purpose of the hearing which is solely to determine the amount of damages which can reasonably be anticipated as a result of the delay. Review of the record tells us that the court below followed precisely the mandate of Section 916 as interpreted

[ 42 Pa. Commw. Page 216]

    by this Court and that the amount of the bonds required to be filed by Appellant are based upon competent evidence on the issue of the cost of delay to be incurred by Hospital.

Accordingly, we

Order

And Now, this 24th day of April, 1979, the decision and order of the Court of Common Pleas of the 37th Judicial District, Warren County Branch, is hereby affirmed.

Disposition

Affirmed.


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