Greenview v. Citizens Organized to Reclaim Chesterbrook

11 Pa. D. & C.3d 179, 1978 Pa. Dist. & Cnty. Dec. LEXIS 41
CourtPennsylvania Court of Common Pleas, Chester County
DecidedAugust 18, 1978
Docketno. 183-P Misc. Term, 1978
StatusPublished

This text of 11 Pa. D. & C.3d 179 (Greenview v. Citizens Organized to Reclaim Chesterbrook) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Chester County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenview v. Citizens Organized to Reclaim Chesterbrook, 11 Pa. D. & C.3d 179, 1978 Pa. Dist. & Cnty. Dec. LEXIS 41 (Pa. Super. Ct. 1978).

Opinion

SUGERMAN, J.,

On August 17, 1978, this court directed the captioned respondents, Citizens Organized to Reclaim Chesterbrook and Citizens for Valley Forge, to post bond in the sum of $3,240 monthly as a condition of proceeding with their appeal before the Zoning Hearing Board of Tredyffrin Township.1 On the same day, three members of respondent associations presented to the court a document styled “Appeal Bond,” drafted in the usual language and obligating respondents and the three members thereof to pay all costs and damages accruing to petitioners occasioned by delay should respondents’ appeal be unsuccessful. The bond was drawn in the sum of $3,240.

An affidavit was annexed to the bond, entitled Affidavit of Sureties and executed by the three individual members of respondent associations. In [181]*181the body of the affidavit, John R. Mooney and his wife, Joan D. Mooney, aver that they own certain real property in Chester County, having a fair market value of $60,000, encumbered by a mortgage in the sum of $14,000. Eleanor Morris avers in the same affidavit that she owns unencumbered real property in Chester County having a fair market value of $25,000. Mr. and Mrs. Mooney, and Mrs. Morris are the three Association members who also executed the appeal bond as obligors.

On August 17, 1978, this court found the bond to be in compliance with our order, approved the same, and directed the prothonotary to index the bond as lis pendens in the judgment index against the real property described in the affidavit annexed to the bond.

As is thus obvious, Mr. and Mrs. Mooney and Mrs. Morris have in practical effect pledged real property having an asserted net market value of $71,000 as security for their bonded obligation of $3,240.

On September 6, 1978, petitioners filed a document styled Motion Re Objection to Appeal Bond, requesting the court to direct the respondents to post a cash bond or bond with corporate surety. A hearing was held upon petitioners’ motion, limited by counsel to argument, and the matter is ripe for disposition.

The gravamen of the petitioners’ motion is set forth in paragraph 3 thereof, restated here:

“3. The Petitioners submit that the purpose and intent of having said bond in the form approved by the Court on August 30,1978 defeats the purpose of obtaining a bond (53 P.S.A. 10916) in that the Petitioners would not have ready or assured access to [182]*182the bond approved on August 30, 1978 and would therefore ask the Court to require the Respondents to post a cash bond or have the Respondents post bond through an approved bonding company.”

As counsel for petitioners correctly noted at argument, in the event the obligors’ obligation under the bond ripened and they refused a demand for payment, petitioners would be required to commence litigation in order to reach the real property owned by the obligors. It is equally correct that such litigation would include execution against the real property in order to liquidate the obligation. It is also theoretically possible, although counsel did not argue the point, that unless a purchaser were obtained at a sale of the real property upon execution, cash to liquidate the obligation might never be obtained by petitioners.

We first observe that the pertinent language of section 916 of the MPC, underlying our order requiring bond, affords us no assistance in our effort to determine a proper disposition of the matter before us. “[§916]. . . the applicant may petition the court having jurisdiction of zoning appeals to order such persons to post bond as a condition to continuing the proceedings before the board . . . The question whether or not such petition should be granted and the amount of the bond shall be within the sound discretion of the court.” 53 P.S. §10916. Virtually the identical language appears in section 1008 of the MPC, 53 P.S. §11008, providing a parallel remedy in the case of an appeal to the court of common pleas.2

[183]*183There is thus no indication of the form of security that must or should underlie a bond ordered under either statutory provision.3 Nor is there appellate or other authority to guide us. We must thus interpret the statute.

We are reminded at once that the “object of all interpretation and construction of statutes is to ascertain and effectuate the intention” of the legislature: Statutory Construction Act of November 25, 1970, P.L. 707, added December 6,1972, P.L. 1339, sec. 3, 1 Pa.C.S.A. §1921(a). The intention of the legislature in permitting the court to require bond to be posted as a condition to the continuation of a proceeding designed to reverse or limit an approval of land development is apparent in the statutory language itself, and has also been noted by the Commonwealth Court. We observe, for example, the following passage in Mont-Bux, Inc. v. McKinstry, 27 Pa. Commonwealth Ct. 194, 365 A. 2d 1329 (1976):

“The intendment of Section 916 of the [MPC]. . . is that, a landowner upon obtaining an approval to develop, whether preliminary, tentative, intermediate or final, may by Section 916 seek protection against his cost of delay by petitioning the court for a bond as a condition to the prosecution of the zoning appeal seeking to limit the approval then in hand.” Id. at 198, 365 A. 2d at 1330.

and in Driscoll v. Plymouth Township, 13 Pa. Commonwealth Ct. 404, 320 A. 2d 444 (1974):

[184]*184“Section 916 represents a balancing of interests between a landowner who has been issued a building permit to develop his land and a person who is contesting his right to do so. Until the matter is adjudicated on the merits, this section requires the landowner to cease with his development plans, even though he has already been issued a permit. As a counterbalance to this infringement of the landowner’s property rights, Section 916 provides that the landowner may petition a court to have the person contesting the development of his property post a bond as a condition to a continuation of his appeal. This bond requirement serves the purpose of providing financial protection for the victorious landowner who might sustain pecuniary loss as a result of lengthy litigation while at the same time screening frivolous appeals from the administrative caseload.” Id. at 410-11, 320 A. 2d at 448.

As is thus apparent, the statutory object of requiring the posting of bond is to provide a fund from which an ultimately successful landowner may obtain reimbursement for pecuniary damage resulting from the delay. In order that such object may be attained, the bond must logically be in an amount sufficient to realistically compensate the landowner for the total amount of damages sustained, and the assets securing the bond must be sufficiently liquid to permit recovery of such damages without difficulty. We find the real property underlying the bond at bar meets the latter criterion.

While of course United States currency as requested by petitioners represents the ideal form of security for a bond of this character, and the obligation of an appropriate corporate surety is quite similar, we do not perceive these two classes of security [185]*185as the only assets that may underlie a bond posted pursuant to section 916.4

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Related

Mont-Bux, Inc. v. RCJ McKINSTRY
365 A.2d 1329 (Commonwealth Court of Pennsylvania, 1976)
Driscoll v. Plymouth Township
320 A.2d 444 (Commonwealth Court of Pennsylvania, 1974)

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Bluebook (online)
11 Pa. D. & C.3d 179, 1978 Pa. Dist. & Cnty. Dec. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenview-v-citizens-organized-to-reclaim-chesterbrook-pactcomplcheste-1978.