Opinion
Argued March 9, 1979
July 9, 1979.
Zoning — Appeal bond — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805 — Merits of the appeal — Statutory amendments — Retroactivity — Statutory Construction Act of 1972, 1 Pa. C.S. § 1926.
1. Provisions of the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, relating to the posting of a bond by appellants in a zoning matter, did not, prior to amendments in 1978, require the court to consider the merits of the appeal in ruling upon a bond petition, and when such amendments do not purport to operate retroactively, the Statutory Construction Act of 1972, 1 Pa. C.S. § 1926, dictates that such amendments not be applied retroactively to bond proceedings concluded prior to their effective date even if such amendments would be held to require the consideration of the merits of an appeal in future cases. [109-10-11]
Argued March 9, 1979, before Judges CRUMLISH, JR., DiSALLE and CRAIG, sitting as a panel of three.
Appeal, No. 431 C.D. 1978, from the Order of the Court of Common Pleas of Schuylkill County in case of In Re: Appeal of Leonard Hoak, Robert Quirk and General Association To Stop Pollution, Inc., to Schuylkill County Zoning Board of Adjustment, No. S-259 March Term, 1978.
Application for shopping center development approval granted by zoning officer. Protestants appealed to the Zoning Hearing Board of Schuylkill County. Applicant filed petition in the Court of Common Pleas of Schuylkill County to require posting of bond. Bond ordered posted. DOLBIN, J. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Robert S. Ryan, with him, Drinker, Biddle Reath; James J. Riley; and Williamson, Friedberg Jones, for appellants.
James D. Crawford, with him Michael Sklaroff; Schnader, Harrison, Segal Lewis; and, of counsel, Leroy G. Adams; and Lipkin, Stutzman, Marshall Bohorad, for appellee.
This case involves a petition under Section 916 of the Pennsylvania Municipalities Planning Code (MPC) on behalf of Crown America Corporation (developer) asking that appellants (objectors) be required to post a bond as a condition to proceeding with the zoning appeal which objectors had filed with the Zoning Hearing Board of Schuylkill County, seeking to reverse or limit approval of a shopping center development application which had been issued by the county zoning office.
Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 10916.
The Court of Common Pleas of Schuylkill County held a hearing February 2, 1978 and, on February 3, 1978, issued an order requiring that objectors, as a condition to proceeding with their zoning appeal, post a bond in the amount of $100,000.00 by February 10, 1978 and in the amount of an additional $400,000.00 per month commencing March 10, 1978 and monthly thereafter.
The appeal here raises two questions:
1. Whether the court below, in this bond petition proceeding, properly refused to consider evidence as to the merits of objectors' zoning appeal?
2. Whether the amendment to MPC § 916, effective September 28, 1978, requires that the case be remanded to the court below for consideration of the merits of the zoning appeal?
By presenting the first question, objectors are asking that we reconsider and overrule our conclusions in Driscoll v. Plymouth Township, 13 Pa. Commw. 404, 320 A.2d 444 (1974), to the effect that consideration of the merits of the appeal is not proper in a Section 916 bond petition case. This court, after careful consideration of various situations and a wide range of constitutional ramifications, has affirmed that rule in Hercek v. Whitehall Township Zoning Hearing Board, 20 Pa. Commw. 509, 342 A.2d 127 (1975); Neshaminy Plaza II v. Kelly, 21 Pa. Commw. 469, 346 A.2d 884 (1975); Schlegel v. Zoning Hearing Board, 24 Pa. Commw. 183, 354 A.2d 596 (1976). Objectors here have presented no new basis which would warrant overturning that settled interpretation.
The second question arises from the adoption by the legislature of Act of September 28, 1978, P.L. 785, Act No. 1978-150, which amended MPC § 916 to add, among other terms, the following language concerning a bond petition:
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 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.
. . .
Although the quoted language appears to constitute a legislative departure from the approach taken in the line of decisions cited above, this amendment, being effective September 28, 1978, clearly is not applicable to Section 916 bond proceedings concluded in February of 1978. The amendment does not purport to operate retroactively, and we are mindful of the Statutory Construction Act provision that:
No statute shall [be] construed to be retroactive unless clearly and manifestly so intended by the General Assembly.
1 Pa.C.S.A. § 1926
We therefore affirm the order of the Court below.
ORDER
AND NOW, this 9th day of July, 1979, the orders of the Court of Common Pleas of Schuylkill County dated February 3, 1978 and February 14, 1978, are affirmed.