FindLaw Pennsylvania federal court cases and opinions. (2023)

Federal Court of Pennsylvania.

Richard A. YARMEY and Jeanne C. Yarmey, his wife, Appellant v. Fort Fort Borough District Hearing and Margaret Ann Moreck.

Date of decision: 21 January 2000

Judges, before PELLEGRINI, J., LEADBETTER, J. and McCLOSKEY. William L. Higgs, Mountain Top, appellant. Raymond A. Hassey, Wilkes-Barre, for appellee Margaret Ann Moreck.

Richard A. Yarmey and his wife, Jeanne C. Yarmey (the Yarmeys), appealed from an order of the Luzerne County Court of Common Pleas (Common Pleas Court) ordering them to pay all costs, expenses and attorneys' fees on appeal pursuant to with the Court of First Instance. The court's earlier ruling dismissed his land-use appeal for refusing to pay the bond.1We are now partially confirmed, partially withdrawn and remitted.

On August 15, 1996, Margaret Ann Moreck (Intervenor) entered into an agreement of sale to purchase the property located at 1702 Wyoming Avenue, Fort Fort (the subject property). The interveners planned to use the property in question as an outbuilding for a kindergarten and a primary school which they owned. The above sales agreement is conditional on Intervenor obtaining all public approvals for the annexes to the scheme, including residential and zoning permits.

Subsequently, on 11 September 1996, the Ministry of Labor and Business issued a residence permit for the planned annex to the subject property for the benefit of the parties involved. Subsequently, the intervenor submitted the occupancy permit to the Fort Fort District Zoning Officer, who issued the zoning permit. A zoning permit allows the Intervenor to use the property in question for educational purposes. The intervenor therefore, after completing the purchase of the subject property on 20 September 1996, carried out repairs and improvements so that the subject property could be used as a school.

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Subsequently, on December 16, 1996, the Yarmeys appealed to the Fort Fort District Zoning Hearing Board (Board) against the issuance of a zoning permit to the Comptroller. After holding a hearing on the matter, the board denied the Yarmeys' appeal. The board found that the complaint was not timely. The Yarmeys have since appealed the board's decision to the High Court.

Subsequently, on October 14, 1997, the Comptroller filed a petition with the Yarmeys to post a bond (petition) pursuant to Section 1003-A(d) of the Pennsylvania Municipal Planning Code (the Code).2Subsequently, on November 14, 1997, the Court of First Instance granted the Intervenor's request and found the Yarmeys' appeal frivolous. The court ordered the Yarmeys to post the bond or the appeal would be dismissed. The Yarmeys failed to post the ordered bond, and on November 25, 1997, the trial court dismissed their appeal.

As noted above, the Yarmeys appealed the trial court's dismissal of their appeal to this court. Subsequently, on October 7, 1998, this court affirmed the decision of the trial court. Yarmey v. Fort Fort District District Hearing, 724 A.2d 429 (No. 3521 C.D. 1997, filed Oct. 7, 1998).

Subsequently, on November 12, 1998, the Intervenor filed a motion with the High Court requesting the recovery of costs, expenses and attorney's fees (motion for fees). The two parties subsequently entered into an agreement on 20 January 1999, which in relevant parts contained the following:

1. The parties agree and grant in accordance with [Code] Section 1003-A(d), 53 P.S. designations. 1003-A(d), will be considered ․ Reasonable and necessary, including, but not limited to, the attorney's hourly rate for the intervener and the time the attorney spends on the case on the intervener's behalf.

2. The parties further agree that the only issue to be decided by [the trial court] at this hearing is whether attorney's fees and costs should be properly awarded in this case, or whether [intervenor] is entitled to such an award.

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(Lawyer's statement of 20 January 1999).

On June 8, 1999, after hearing the Trustee's request for fees, the trial court ordered the Yarmeys to pay all costs, expenses and attorney's fees in connection with their appeal of the Board's decision in the amount of $13,189.50. The Yarmeys immediately appealed to this Court.

On appeal to this Court,3The Yarmeys contend that the trial court erroneously ordered them to pay the intervenor all attorneys' fees, costs, and expenses related to their appeal of the trial court's prior order, and dismissed their land use appeal for refusing to post bond. The Yarmeys specifically argued that costs, fees, and attorneys' fees should not be awarded under Code section 1003-A(d) because the language of that section is permissive rather than mandatory.

This claim is unfounded. The Act has made it clear that when the statutory language is clear, the appellate court may not ignore that language in order to pursue the legislative intent of the Act. Department of Transportation, Driver's License Board v. Lear, 151 Pa. Cmwlth. 138, 616 A.2d 185 (1992). Moreover, if the language of the statute is clear, this court should read the provisions of the statute in light of their plain meaning and common usage. ID.

Here we must examine section 1003-A(d) of the Code as it relates to the award of costs, fees, and attorneys' fees. This section states, in relevant parts, the following:

If a defendant appeals a bond pursuant to an order of a court dismissing a land use appeal denying payment of a bond, the defendant shall, upon request of the petitioner and after hearing the land use complaint in a court of competent jurisdiction , assumes the responsibility of the petitioner All costs, expenses and attorney's fees. (emphasis added.)

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Section 1003-A(d) of the Code is clearly worded. By using the word "sustainable," this section of the Code provides that if an appeal is filed against a party required to post a bond under a court order that denied a land use appeal and failed to post a bond, a party be liable for all damages suffered by the plaintiff. Responsible for costs, expenses and reasonable attorneys' fees. Therefore, the trial court does not appear to have erred in ordering the Yarmeys to pay the trustee's fees, expenses, and attorneys' fees pursuant to Code section 1003-A(d).

The Yarmeys next argued that the trial court erroneously set the fees, expenses, and attorneys' fees payable at $13,189.50. The Yarmeys specifically argue that fees, attorneys' fees, and expenses awarded under this section should not include amounts accrued before the trial court dismissed the appeal.

we agree. Code section 1003-A(d) was written to provide that if a party whose appeal was found to be frivolous by the court appeals this decision and loses, that party shall bear the costs, expenses and attorneys' fees of the trial. right. opponent. See section 1003-A(d) of the Code. We conclude that in this case only the defendant's costs, expenses and attorney's fees have been incurred since the high court dismissed one party's appeal, and not all costs incurred during the course of the case were awarded to the defendant. Because the trial court's calculations apparently include all costs associated with the litigation, we conclude that the trial court erred in setting the amount due at $13,189.50. (RR at 8-17).

Accordingly, the trial court's order is affirmed, provided it finds that attorneys' fees, costs, and disbursements should be awarded pursuant to Code section 1003-A(d). However, the portion of the trial court's opinion awarding $13,189.50 was reversed. The case was remanded to the trial court to calculate fees, attorneys' fees and costs owed from the date the trial court denied Yarmey's appeal.


Now, on February 21, 2000, the June 8, 1999 order of the Luzerne County Court of Common Pleas (Trial Court) awarding costs, expenses and attorney's fees was affirmed. That portion of the judgment awarding $13,189.50 was reversed and the case remanded to the trial court for an assessment of fees, attorneys' fees and costs. Asian America.

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waive jurisdiction.


1We note that the prior court order dismissing the Yarmeys' land use appeal for failure to issue a bond is affirmed by this court order. Yarmey v. Fort Fort District District Hearing, 724 A.2d 429 (No. 3521 C.D. 1997, filed Oct. 7, 1998).

2.Act of July 31, 1968, PL 805, as amended, added by act of December 21, 1988, PL 1329, 53 Note §‖ 11003-A. This section provides, in relevant part, as follows: (d) “Appeals to a court under this section do not stay the action appealed from, except that the appellant may apply for a stay in a court having appellate jurisdiction; the use of land If the complainant tries to prevent someone else from using or building on the land, regardless of whether he is seeking residency or not, the owner of the land whose use or development is in question can request the court to order the complainant to post a bond condition of After the filing of the petition for bail, the court will hold a hearing to determine whether the appeal is frivolous ․ If the defendant appeals for bail pursuant to a court order that denied a land use appeal that denied the payment of a bond , defendant, at the request of the petitioner and after a hearing in a court of competent jurisdiction, the lands applying the appeal shall bear all costs, expenses and reasonable attorneys' fees incurred by the petitioner.

3Our standard of review for the trial court's decision is limited to determining whether the trial court abused its discretion, committed an error of law, or violated a constitutional right. Azzarelli v. City of Scranton, 655 A.2d 648 (Pa.Cmwlth.1995).

McCloskey, juez superior.

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