Des Marais v. Kennett Consolidated School District
Des Marais v. Kennett Consolidated School District
Opinion of the Court
Opinion by
Stanley Des Marais (Appellant) appeals an order of the Court of Common Pleas dismissing his action in equity seeking to enjoin Kennett Consolidated School District (District) from proceeding with the proposed construction and renovation of the District’s high school.
The complaint in equity was filed on June 1, 1976, alleging violations of the Public School Code of 1949
Appellant contends that the court below lacked authority, in this instance, to require Appellant to post bond. The District, on the other hand, argues that a court in equity has inherent power to require the posting. of a bond, in a situation such as this. Appellant denies that courts have any such inherent power and instead points to the careful pattern of regulation of this power
Citing Bobb v. Muhlenberg Township School District, 62 Berks L.J. 221 (1970), which our research discloses to be the only reported Commonwealth decision dealing with this question, the District argues in its brief that a bond is appropriate (1) when in effect, the plaintiff receives the benefit of a preliminary injunction, even though not requesting it, (2) when a large financial loss may result to the defendant if it is ultimately determined that the plaintiff has no cause of action or abandons the proceedings, and (3) when there is grave doubt that the plaintiff has an equitable cause of action. Though there may be some logic in the set of criteria outlined by the
Without doubt, there is a very significant distinction between the situation in which a court has issued a preliminary injunction and the factual posture of the matter before us for consideration. In the former, it is the court itself which has intervened in the course of events, and has ordered maintenance of the status quo. It is the very authority of the court itself that prevents any further activity on behalf of the restrained party. In the case at hand, it is the mere existence of the controversy which makes prospective purchasers of the District’s obligations wary, and which, in turn, makes it more difficult for the District to continue with its proposed construction.
This also points with clarity to the second distinction between this situation and the typical preliminary injunction suit in that, though it may be more expensive to proceed with the District’s plans as scheduled, it is not impossible for it to proceed.
Based upon the foregoing, we conclude that the court below erred in ordering the posting of a bond
Accordingly, we
Order
And Now, this 1st day of March, 1978, having determined that the Court of Common Pleas of Chester County improperly ordered the posting of bond, the order of that court dismissing Appellant’s complaint in equity is reversed and this case is remanded to it for further proceedings not inconsistent with this opinion.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §1-102 et seq.
Act of July 19, 1974, P.L. 486, as amended, 65 P.S. §261 et seq.
See Pa. R.C.P. No. 1531(b) and Sections 916 and 1008 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.U. 805, as amended, 53 P.S. §§10916 and 11008.
A witness for the District, an attorney specializing in the practice of municipal law and municipal financing, testified before the court below that, though it might be at a higher rate of interest, the District could have obtained alternate sources of financing for the proposed construction.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.