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WILLIAM F. ROSS v. FAYETTE COUNTY ZONING HEARING BOARD AND ANTHONY IRON & METAL COMPANY (04/17/86)

decided: April 17, 1986.

WILLIAM F. ROSS, ET AL., APPELLANTS
v.
FAYETTE COUNTY ZONING HEARING BOARD AND ANTHONY IRON & METAL COMPANY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Fayette County, in case of William F. Ross, Carol Homer and Frank T. Gabrin v. Fayette County Zoning Hearing Board and Fayette County Commissioners, and Anthony Iron and Metal Co., No. 553 of 1984, G.D.

COUNSEL

Robert P. Ging, Jr., for appellants.

John M. Purcell, with him, James T. Davis, Davis & Davis, for appellee, Anthony Iron and Metal Company.

Judges Craig, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 96 Pa. Commw. Page 431]

Objectors William F. Ross, Carol Homer and Frank T. Gabrin*fn1 appeal an order of the Court of Common Pleas of Fayette County which (1) quashed their zoning appeal when they failed to post a court-ordered $25,000 bond and (2) dismissed their motion to vacate that bond order.

In December, 1983, the Fayette County Board of Commissioners had rezoned an area within Fayette County from A-1 Agricultural Rural to M-2 Heavy Industrial. On April 3, 1984, the Fayette County Zoning Hearing Board issued a decision which upheld the issuance of a zoning certificate to Anthony Iron and Metal Company, permitting it to build a helicopter pad and accessory building within the recently rezoned area. On April 26, 1984, the objectors filed their notice of appeal from the board's action to the common pleas court.

On May 9, 1984, Anthony petitioned the court of common pleas to require that the objectors post bond as a condition to proceeding with their appeal as authorized by Section 1008(4) of the Pennsylvania Municipalities Planning Code (MPC).*fn2

Section 1008(4) of the MPC, 53 P.S. ยง 11008(4), states in pertinent part:

[ 96 Pa. Commw. Page 432]

If the appellants are persons who are seeking to prevent a use of the land of another, . . . the landowner whose use or development is in question may petition the court to order the appellants to post bond as a condition to proceeding with the appeal. After the petition is presented the court shall hold a hearing to determine if the filing of the appeal is frivolous and is for the purpose of delay. At the hearing evidence may be presented Page 432} on the merits of the case. After consideration of all evidence presented, if the court determines that the appeal is frivolous and is for the purpose of delay it shall grant the petition. . . . The question of the amount of the bond shall be within the sound discretion of the court. (Emphasis added.)

The court scheduled a hearing for July 24, 1984, upon the merits of that petition. According to the docket of the Fayette County Prothonotary, the prothonotary sent notice of the July 24 hearing to counsel of record on June 8.

At the hearing, counsel for the objectors did not appear. Counsel for Anthony and counsel for the Fayette County Zoning Hearing Board both requested that the trial judge require the objectors to post an appeal bond. The judge ordered that the objectors post a $25,000 bond within ten days or the appeal would be quashed. He additionally stated, "If [counsel for the objectors] has a valid reason why he didn't appear for ...


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