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APPEAL LEONARD HOAK ET AL. LEONARD HOAK (07/09/79)

decided: July 9, 1979.

IN RE: APPEAL OF LEONARD HOAK ET AL. LEONARD HOAK, ROBERT QUIRK AND THE GENERAL ASSOCIATION TO STOP POLLUTION, INC., APPELLANTS


Appeal from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Appeal of Leonard Hoak, Robert Quirk and General Association To Stop Pollution, Inc., to Schuylkill County Zoning Board of Adjustment, No. S-259 March Term, 1978.

COUNSEL

Robert S. Ryan, with him, Drinker, Biddle & Reath; James J. Riley ; and Williamson, Friedberg & Jones, for appellants.

James D. Crawford, with him Michael Sklaroff; Schnader, Harrison, Segal & Lewis ; and, of counsel, Leroy G. Adams ; and Lipkin, Stutzman, Marshall & Bohorad, for appellee.

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

Author: Craig

[ 44 Pa. Commw. Page 109]

This case involves a petition under Section 916 of the Pennsylvania Municipalities Planning Code (MPC)*fn1 on behalf of Crown America Corporation (developer) asking that appellants (objectors) be required to post a bond as a condition to proceeding with the zoning appeal which objectors had filed with the Zoning Hearing Board of Schuylkill County, seeking to reverse or limit approval of a shopping center development application which had been issued by the county zoning office.

The Court of Common Pleas of Schuylkill County held a hearing February 2, 1978 and, on February 3, 1978, issued an order requiring that objectors, as a

[ 44 Pa. Commw. Page 110]

    condition to proceeding with their zoning appeal, post a bond in the amount of $100,000.00 by February 10, 1978 and in the amount of an additional $400,000.00 per month commencing March 10, 1978 and monthly thereafter.

The appeal here raises two questions:

1. Whether the court below, in this bond petition proceeding, properly refused to consider evidence as to the merits of objectors' zoning appeal?

2. Whether the amendment to MPC ยง 916, effective September 28, 1978, requires that the case be remanded to the court below for consideration of the merits of the zoning appeal?

By presenting the first question, objectors are asking that we reconsider and overrule our conclusions in Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A.2d 444 (1974), to the effect that consideration of the merits of the appeal is not proper in a Section 916 bond petition case. This court, after careful consideration of various situations and a wide range of constitutional ramifications, has affirmed that rule in Hercek v. Whitehall Township Zoning Hearing Board, 20 Pa. Commonwealth Ct. 509, 342 A.2d 127 (1975); Neshaminy Plaza II v. Kelly, 21 Pa. Commonwealth Ct. 469, 346 A.2d 884 (1975); Schlegel v. Zoning ...


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