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C.A.N.D.L.E. v. BOARD COMMISSIONERS FAYETTE COUNTY AND COMMERCIAL STONE CO. (12/18/85)

decided: December 18, 1985.

C.A.N.D.L.E., ET AL., APPELLANTS
v.
BOARD OF COMMISSIONERS OF FAYETTE COUNTY AND COMMERCIAL STONE CO., INC., APPELLEES



Appeals from the Order of the Court of Common Pleas of Fayette County in the case of C.A.N.D.L.E., Doris H. Arnold, Lorenzo Johnson, Jack E. Crislip, Donald Henry, Regis Murtha, Patricia Graham, Anna Mae Buchholz, Thomas E. Showman, Mary Elyzabeth Floto, James E. Miller, Norma W. Dolde, John E. Mulvihill, Donna Brooks, Wilbert Brooks, Calvin Anderson, Edith Geary, E. D. Bryner, Emma Brothes and Charles L. Basinger v. Board of Commissioners of Fayette County and Commercial Stone Co., Inc., No. 587 of 1984, G.D.

COUNSEL

Gary Robert Fine, McBride, Wiker and Fine, for appellants.

Philip T. Warman, for appellee, Board of Commissioners of Fayette County.

William M. Radcliffe, with him, Charles O. Zebley, Jr., Coldren, DeHaas & Radcliffe, for appellee, Commercial Stone Co., Inc.

Judges Doyle and Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 93 Pa. Commw. Page 549]

On April 5, 1984, the Board of Commissioners of Fayette County (Commissioners) passed an ordinance rezoning a total of approximately two hundred and fifty acres in order to permit Commercial Stone Co., Inc. (appellee) to conduct mineral extraction and quarrying on the site. C.A.N.D.L.E.*fn1 (appellant), an unincorporated association, opposed the ordinance before the Commissioners. Failing in its attempt to prevent rezoning, appellant appealed the rezoning ordinance to the Court of Common Pleas of Fayette County, which had jurisdiction under the Pennsylvania Municipalities Planning Code (MPC).*fn2 On August 16, 1984, the Court of Common Pleas dismissed the appeal and affirmed the action of the Commissioners. An appeal to this Court followed.

During the pendency of the instant appeal, the appellee petitioned the Court of Common Pleas to order the appellants to post bond in order to protect appellee's interests.*fn3 A hearing was held by the Court of

[ 93 Pa. Commw. Page 550]

Common Pleas, and on May 23, 1985, the petition was granted and bond ordered posted. The appellant appealed the order to post bond to this Court, and further requested a stay of the bond order until the appeal on the case in chief was decided. On July 25, 1985, this Court denied the application to stay the bond order; therefore, the original bond order is in effect and an appeal from such is before this Court as well as the appeal from passage of the rezoning ordinance.

Appellant did not post a bond following the denial of the stay, and appellee filed a Motion to Quash based on appellant's failure to post bond. On August 30, 1985, this Court ordered appellant's two appeals consolidated, and the Motion to Quash was deferred. Thus, the Court presently has before it three separate issues to address: (1) what should be the result of appellant's failure to post bond; (2) whether the bond order was properly issued; and (3) whether the trial court was correct in affirming the rezoning ordinance of the Board.

An appellant's failure to post bond may make a merits appeal subject to summary dismissal. See Langmaid Lane Homeowners Association Appeal, 77 Pa. Commonwealth Ct. 53, 465 A.2d 72 (1983). However, if the merits appeal is dismissed, summarily or otherwise, a bond order appeal paired with it could be dismissed as moot. Printzas v. Borough of Norristown, 10 Pa. Commonwealth Ct. 487, 313 A.2d 784 (1973). This result is quite possible (and ...


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