81 A.3d 896
Pa.2013Background
- PPM Atlantic sought zoning approvals to build wind turbines; adjacent landowner Thomas Bozek opposed and intervened in PPM’s appeal to Fayette County Court of Common Pleas.
- The trial court issued rulings favorable to PPM on remand; PPM moved for an appeal bond when Bozek filed a Commonwealth Court appeal from the trial court’s final order.
- The trial court ordered Bozek to post a $250,000 bond as a condition of continuing his Commonwealth Court appeal under Section 1003-A(d) of the Municipalities Planning Code (MPC).
- PPM moved in Commonwealth Court to quash Bozek’s merits appeal for failure to post bond; a panel relied on Takacs to treat the bond order as appealable and quashed Bozek’s appeal when he did not post bond or appeal the bond order.
- The Pennsylvania Supreme Court granted review and held the trial court’s bond order was void ab initio because Section 1003-A(d) targets appeals where the developer is the appellee in the common pleas court, not where the developer was the appellant (as here).
- The Supreme Court reversed the Commonwealth Court and remanded for a merits decision, concluding the MPC did not authorize the bond in this posture and appellate rule 1701(b)(1) does not by itself supply such authority.
Issues
| Issue | Plaintiff's Argument (Bozek) | Defendant's Argument (PPM) | Held |
|---|---|---|---|
| Whether the trial court had authority under Section 1003‑A(d) to require an objector to post bond when the developer was the appellant in the common pleas court | The bond order was void ab initio under Rickert because Section 1003‑A(d) protects landowners who are appellees in the trial court, not developers who appealed there | Takacs supports treating a post‑appeal bond order as ancillary/final and enforceable; Section 1003‑A(d) applies and Bozek should have appealed the bond order or posted bond | Held for Bozek: Section 1003‑A(d) does not authorize a bond here; the bond order was unauthorized and void ab initio |
| Whether a trial court may rely on Pa.R.A.P. 1701(b)(1) to impose a bond after an appeal to Commonwealth Court is filed | Rule 1701 does not supply authority to impose bonds in absence of statutory authorization | Rule 1701 permits ancillary actions post‑appeal and thus supports bond orders ancillary to merits rulings (per Takacs) | Held: Rule 1701(b)(1) does not independently authorize a trial court to impose an appeal bond where no statute authorizes it |
| Whether Takacs should be applied retroactively to require Bozek to have appealed the bond order | Takacs interprets statute but cannot justify an order that was unauthorized under the MPC in this posture | PPM: Takacs interpreted MPC and the order was appealable; retroactivity is appropriate | Court did not reach full retroactivity question because it resolved threshold statutory‑authority issue in Bozek’s favor |
| Whether the Commonwealth Court properly quashed the merits appeal for failure to post bond | Bozek: Quash was improper because the bond order was void as statutorily unauthorized | PPM: Quash was proper under Takacs; failure to post bond or appeal the bond order forfeited merits appeal | Held: Commonwealth Court erred; quash was improper — remand for merits review |
Key Cases Cited
- Takacs v. Indian Lake Borough Zoning Hearing Bd., 18 A.3d 354 (Pa. Cmwlth. 2011) (treated post‑appeal bond orders as ancillary/final and upheld quash for failure to post bond)
- Rickert v. Latimore Township, 960 A.2d 912 (Pa. Cmwlth. 2008) (Section 1003‑A(d) protects landowners challenged in trial court and does not apply to developers who were appellants in common pleas)
- PPM Atlantic v. Fayette Cnty. Zoning Hearing Bd., 22 A.3d 253 (Pa. Cmwlth. 2011) (Commonwealth Court decision applying Takacs to quash Bozek’s appeal)
- Twelve Vein Coal Co. v. Dep’t of Envtl. Res., 561 A.2d 1317 (Pa. Cmwlth. 1989) (statutory conditions that block appeal may implicate constitutional right to appeal)