filed: February 3, 1984.
IN RE APPEAL OF AFFECTED AND AGGRIEVED RESIDENTS FROM THE ADVERSE ACTION OF THE SUPERVISORS OF WHITPAIN TOWNSHIP. APPEAL OF R. & R. COMPANY
NO. 2767 Philadelphia, 1981, Appeal from the Order entered September 28, 1981, in the Court of Common Pleas of Montgomery County, Civil, No. 80-15178.
John P. Knox, Ambler, for appellant.
William W. Spalding, Philadelphia, for appellees.
Cercone, President Judge, and McEwen and Montemuro, JJ.
[ 325 Pa. Super. Page 10]
This is an appeal from an order of the Court of Common Pleas of Montgomery County which denied a petition filed by appellant pursuant to Section 2503(9) of the Judicial Code, 42 Pa.C.S.A. § 2503(9), seeking an award of reasonable counsel fees. Appellant, the owner of a tract of land in Whitpain Township, sought to recover the amount of counsel fees expended in appeal proceedings undertaken by certain residents of Whitpain Township challenging the rezoning of land owned by appellant. The distinguished Judge Anthony Scirica found that appellant had failed to establish the statutory requirements for entitlement to counsel fees and, thus, denied the petition. Appellant argues that the appeals from the decision of the Board of Supervisors which were undertaken by the residents were so capricious that the hearing judge erred when he concluded that the residents' conduct was not "arbitrary, vexatious or in bad faith", as required by Section 2503(9) of the Judicial Code, 42 Pa.C.S. § 2503(9). We affirm.
[ 325 Pa. Super. Page 11]
Appellant filed an application on January 28, 1980, with the Whitpain Township Board of Supervisors to rezone 59.477 acres of land from a residential district to a limited industrial district. The Board of Whitpain Township Supervisors conducted five public hearings upon the zoning application and rezoned the tract of land to a limited industrial district on August 1, 1980. The residents initiated an appeal on August 29, 1980, pursuant to Section 1007 of the Pennsylvania Municipalities Planning Code,*fn1 to the Whitpain Township Zoning Hearing Board challenging the zoning as "spot zoning". The residents also filed an appeal to the Common Pleas Court pursuant to Section 1003 of the Pennsylvania Municipalities Planning Code,*fn2 in which they alleged defects in the process of the rezoning ordinance. Appellant secured the entry of a rule upon the residents on September 30, 1980, to show cause why the court should not require the residents to post bond as a condition to continuing the proceedings before the Zoning Hearing Board as well as before the court, pursuant to Sections 916*fn3 and
[ 325 Pa. Super. Page 121008]
(4)*fn4 of the Municipalities Planning Code, 53 P.S. §§ 10916, 11008(4). The court, pursuant to the statutory mandate that a hearing be held to determine if the filing of the appeal was frivolous and for the purpose of delay, heard evidence on November 17, 1980 regarding the grounds for both appeals as well as on the question of damages. See Leonard v. Zoning Hearing Board of Cheltenham Township, 72 Pa. Commw. 237, 457 A.2d 132 (1983). The court concluded (1) that the appeals of the residents to the zoning board and to the Common Pleas Court were "frivolous and for the purpose of delay" and (2) directed the residents to post a bond in the amount of $98,000 per month for six months or suffer dismissal with prejudice. The residents failed to comply with the direction of the court to post bond and the court, on January 7, 1981, dismissed both appeals with prejudice. The residents appealed to the Commonwealth Court on January 23, 1981, from the order dismissing their appeals with prejudice. While that appeal was
[ 325 Pa. Super. Page 13]
pending in the Commonwealth Court, appellant proceeded on February 11, 1981, under Section 2503(9) of the Judicial Code, 42 Pa.C.S. § 2503(9), to petition the court to order the residents to reimburse appellant "for all counsel fees expended to date as well as such counsel fees as would be incurred." The Common Pleas Court conducted a hearing upon the petition on June 8, 1981, but reserved decision on the matter. The Commonwealth Court, on August 17, 1981, 61 Pa. Commw. 305, 433 A.2d 630, affirmed the order of the Common Pleas Court which had dismissed the appeals of the residents by reason of their failure to post bond. The Common Pleas Court by order of September 28, 1981, denied the petition of appellant seeking counsel fees. It is from that order of denial that the instant appeal has been taken.
Appellees contend that the Court of Common Pleas was without jurisdiction to entertain the petition for counsel fees filed by appellant as a result of the appeal taken to the Commonwealth Court on January 23, 1981. We are constrained to agree.
"The general rule, and time-honored maxim, is that after an appeal has been taken the lower court may no longer proceed further in the matter. Pa.R.A.P. 1701(a)." Grove v. Zoning Hearing Board of Thornbury Township, 40 Pa. Commw. 47, 50, 397 A.2d 22, 24 (1979). Accord School District of Pittsburgh v. Rankin, 55 Pa. Commw. 371, 373, 423 A.2d 1087, 1088 (1980); Marlowe v. Zoning Hearing Board of Haverford, 52 Pa. Commw. 224, 227, 415 A.2d 946, 948 (1980). At all times relevant to the instant proceedings, Pa.R.A.P. 1701 provided, inter alia:
RULE 1701. Effect of Appeal Generally
(a) General rule Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter.
[ 325 Pa. Super. Page 14]
in the interests of judicial economy will address the merits of the arguments raised by appellant.*fn5
We are of a mind that the trial court correctly ruled upon the request for counsel fees when it denied the petition filed by appellant. Section 2503 of the Judicial Code, 42 Pa.C.S. § 2503, provides in relevant part:
Section 2503. Right of participants to receive counsel fees
The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:
(1-8) . . .
(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
Appellant contends that the finding of the trial court that the appeals undertaken from the decision of the Board of Supervisors were "frivolous and for the purpose of delay," pursuant to Sections 916 and 1008(4) of the Municipalities Planning Code,*fn6 compels the conclusion that the conduct of appellees in pursuing the appeals was "arbitrary, vexatious or in bad faith." We disagree.
[ 325 Pa. Super. Page 16]
The court is empowered under the relevant provisions of the Municipalities Planning Code to order that a bond be posted if the appeal is found to be "frivolous and for the purposes of delay." An appeal is frivolous if "'the plaintiff's realistic chances of ultimate success are slight'". Appeal of Langmaid Lane Home Owners Association, 77 Pa. Commw. 53, 60, 465 A.2d 72, 75 (1983) quoting Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa. 1975). Accord: Collis v. Zoning Hearing Board of the City of Page 16} Wilkes-Barre, 77 Pa. Commw. 4, 10, 465 A.2d 53, 57 (1983). Section 2503(9), however, authorizes the court to award reasonable counsel fees as part of the taxable costs of the matter only upon a finding that the conduct of the party in commencing or proceeding in the matter was "arbitrary, vexatious or in bad faith." Arbitrary has been defined as "'based on random or convenient selection or chance rather than on reason or nature.'" In Re Estate of Roos, 305 Pa. Super. 86, 94 n. 2, 451 A.2d 255, 259 n. 2, (1982) quoting Webster's Third New International Dictionary, 1976. Vexatious has been defined as "'instituted without sufficient grounds and serving only to cause annoyance'". In Re Estate of Roos, supra, 305 Pa. Superior Ct. at 94 n. 2, 451 A.2d at 259 n. 2 quoting Santoro v. City of Philadelphia, 59 Pa. Commw. 114, 122, 429 A.2d 113, 117 (1981) (emphasis supplied). "Bad faith, as that term has been defined is 'fraud, dishonesty, or corruption.'" In Re Estate of Roos, supra, 305 Pa. Superior Ct. at 94 n. 2, 451 A.2d at 259 n. 2 quoting Frick v. McClelland, 384 Pa. 597, 600, 122 A.2d 43, 45 (1956). As a finding that an appeal is "frivolous" for purposes of the bond requirements of the Municipalities Planning Code does not necessarily entail a finding that the conduct of a party in pursuing a frivolous appeal is arbitrary, vexatious or in bad faith, the hearing court correctly rejected this assertion of appellant.
Our review of the record discloses that appellees called as a witness at the hearings before the Board of Supervisors a land use planning expert who testified that the rezoning of the property owned by appellant was spot zoning. In addition, both the Montgomery County Planning Commission and the Township Planning Commission opposed the subdivision proposal which was adopted by the Whitpain Township Board of Supervisors. As a result, there was certainly a sufficient evidentiary basis for the finding of the hearing court that the conduct of appellees in pursuing appeals to the Zoning Hearing Board and the
[ 325 Pa. Super. Page 17]
Court of Common Pleas was not arbitrary, vexatious or in bad faith.