Yarmey v. Zoning Hearing Board of Forty Fort Borough., 745 A. 2d 1274, Pa. Comwlth, (2000).
A party whose land use appeal has been found by the trial court to be frivolous and who fails to post the required bond but rather appeals the earlier denial by the court and then loses that further appeal is required to pay to the other side the reasonable attorneys fees costs and expenses of defending that further appeal.
Cross Reference: MPC Section 1003-A.
In this case the parties who had objected to the original permit, appealed to the zoning hearing board. Their appeal was denied as being not timely (it was filed more than two months after the issuance of the permit). They appealed to the trial court, where the Intervenor (property owner) obtained a court order requiring the Objector to post a bond under MPC 1003. The Objectors failed to post the required bond and the court dismissed the appeal. The Objectors then appealed the dismissal to the Commonwealth Court, which reaffirmed the lower court’s dismissal. The Intervenor then sought and was granted costs, expenses and attorneys fees related to the entire appeal process beginning with the appeal from the zoning hearing board. The Objectors appealed the award.
The court first found that the language of MPC 1003 is mandatory, making the appellant liable for costs, expenses and attorneys fees if an appeal is taken from an order directing the posting of a bond in an appeal from an order of court dismissing a land use appeal, and the bond is not posted.
The Commonwealth Court agreed with the trial court that if a party’s appeal has been found frivolous and such decision is appealed and lost by the appellant, he is liable for costs, expenses and attorney’s fees. The Commonwealth Court, however, reversed the trial court and limited the award of attorney’s fees only for those incurred “from the time that the trial court dismisses a party’s appeal.
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