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CATHERINE MARLOWE AND MANOA MERCHANTS' ASSOCIATION v. ZONING HEARING BOARD HAVERFORD TOWNSHIP (06/18/80)

decided: June 18, 1980.

CATHERINE MARLOWE AND MANOA MERCHANTS' ASSOCIATION, APPELLANTS
v.
THE ZONING HEARING BOARD OF HAVERFORD TOWNSHIP, CHAD PARTNERSHIP AND STRAWBRIDGE AND CLOTHIER, APPELLEES



Appeals from the Order of the Court of Common Pleas of Delaware County in case of Catherine Marlowe and Manoa Merchants' Association v. The Zoning Hearing Board of Haverford Township and Chad Partnership and Strawbridge and Clothier, No. 79-6664.

COUNSEL

Joseph A. Damico, with him John W. Wellman and Steven G. Brown, Petrikin, Wellman, Damico & Carney, for appellants.

Brian S. Quinn, for appellee, The Zoning Hearing Board of Haverford Township.

Henry B. FitzPatrick, with him Marcy B. Tanker, for appellee, Chad Partnership.

Murray S. Eckell, for appellee, Strawbridge and Clothier.

Judges Rogers, MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr. President Judge Bowman did not participate in the decision in this case.

Author: Williams

[ 52 Pa. Commw. Page 226]

Before us in this litigation are two companion appeals arising from a single zoning case, together with separate motions to quash each of those appeals. All of these matters were consolidated for argument and disposition. The first appeal (No. 1965 C.D. 1979) is by Catherine Marlowe and Manoa Merchants' Association (Manoa) from an order of the Court of Common Pleas of Delaware County affirming the grant of zoning variances by the Zoning Hearing Board of Haverford Township (Board).

The second appeal (No. 2340 C.D. 1979) is by the same appellants from a separate order of that same lower court granting the motion of Chad Partnership (Chad) and Strawbridge and Clothier to require the posting of a bond, as a condition for further appeal to this Court from the affirmance of the Board's decision. Chad is the equitable owner of the land in question and Strawbridge and Clothier its principal tenant.

[ 52 Pa. Commw. Page 227]

Those parties had intervened as appellees when Manoa appealed the Board's decision to the lower court.

The intervenor-appellees, Chad and Strawbridge and Clothier, have filed in this Court motions to quash each one of Manoa's appeals. They seek to quash the appeal from the bond order on the ground that it is an interlocutory and not a final, appealable order. They also seek to quash the appeal from the affirmance of the Board's decision, because the appellants failed to post the bond which the lower court made a condition of further appeal.

We take first the issue of the bond order, because if the appellees are correct in their contentions based on that order, it would dispose of the matters before us. However, the appellants assert that the lower court had no jurisdiction to enter the bond order because that order and the motion upon which it was granted came after the appellants had perfected their initial appeal to this Court, that is, from the lower court's order affirming the Board.

When Manoa first appealed to the court below from the decision of the Board, the intervenor-appellees filed a motion to require the posting of an appeal bond. On June 29, 1979 the lower court denied that motion. On August 30, 1979 the lower court affirmed the Board's decision granting the variances and dismissed Manoa's appeal. On September 19, 1979 Manoa appealed that order to this Court. Five days later, on September 24, 1979, the intervenor-appellees again filed a motion for an appeal bond. On October 15, 1979 the lower court granted the motion and ordered the posting of a bond.

It is a well established general rule that after an appeal the lower court may no longer proceed in the matter. Grove v. Zoning Hearing Board of Thornbury Township, 40 Pa. Commonwealth Ct. 47, 397 A.2d 22

[ 52 Pa. Commw. Page 228]

(1979). With a few exceptions not here relevant, that principle has been codified in the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1701(a). From this, we are pointed to the conclusion that the lower court had no legal power to enter the bond order, as it came after the appeal had been taken to this Court.

The appellees assert that the lower court had the power to enter such an order even after the filing of the appeal, by virtue of Section 1008(4) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11008(4) (MPC). That provision does create an additional, specialized exception to the general rule preventing lower court action after an appeal. That provision gives a landowner in a zoning case the right to petition the lower court to require the posting of a bond after an appeal has been taken from a final decision of the lower court.

However, Section 1008(4) of the MPC permits such a petition only under a given circumstance: where the landowner had previously waived the right to compel the posting of a bond when the protestants first appealed to the lower court from the zoning decision. In such a case the Section permits him to revoke the waiver if the protestants appeal further. In the case at bar, the intervenor-appellees did not waive their right to seek the imposition of a bond. They filed a motion to compel the posting of a bond when Manoa first appealed to the lower court; and that motion was denied.

If no bond had been required by the time Manoa filed its initial appeal to the Commonwealth Court, on September 19, 1979, it was not because the appeal bond had been waived, but because the motion for such a bond had been denied by the lower court. Accordingly, the intervenor-appellees did not ...


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