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APPEAL AFFECTED AND AGGRIEVED RESIDENTS FROM ADVERSE ACTION SUPERVISORS WHITPAIN TOWNSHIP. APPEAL R. & R. COMPANY (02/03/84)

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.

COUNSEL

John P. Knox, Ambler, for appellant.

William W. Spalding, Philadelphia, for appellees.

Cercone, President Judge, and McEwen and Montemuro, JJ.

Author: Mcewen

[ 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 ...


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