Appeal, No. 205, March T., 1956, from order of Court of Common Pleas of Allegheny County, October T., 1954, No. 2425, in case of Joseph Zupancic v. Showden Township et al. Order affirmed; reargument refused December 29, 1956.
Louis Vaira, for appellant.
Owen B. McManus, for appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
The order dismissing the plaintiff's complaint in mandamus is affirmed on the following excerpts from the opinion of Judge KENNEDY for the court en banc.
The hearing judge "concluded that the plaintiff was not entitled to a judgment in mandamus commanding the defendant's supervisors to issue a permit to the plaintiff authorizing him to operate a garbage and rubbish disposal plant on certain properties within Showden Township, and in an order dismissed the bill of complaint. ...
"Based on the pleadings and the testimony submitted by the parties at the hearing, and the exhibits allowed in evidence, the sole issue to be decided was: Did the plaintiff, prior to bringing suit, hold a permit to operate a commercial garbage and rubbish disposal plant coupled with such a vested interest therein that it could not be revoked or rescinded by the Township supervisors?
"Ordinance No. 2 of Snowden Township, approved January 24, 1947, declared, inter alia, that it was unlawful as being a public nuisance for anyone to operate a commercial garbage and rubbish disposal plant without previous specific authorization from the supervisors. On May 18, 1954 the plaintiff submitted a written application for such an undertaking. On May 22, 1954 the secretary of the Board of Supervisors, in a letter, notified the plaintiff that the Board had agreed to authorize him to operate such a disposal dump using the sanitary fill method provided the plaintiff would agree with four rigid restrictions and limitations which were not incorporated in his written application. This letter further stated: '(5) A formal agreement listing these additions will be drawn up for your signature.'
"The plaintiff, even up to the time of trial, never notified the supervisors that he was desirous of obtaining a permit subject to the requirements, limitations and conditions set forth in letter of May 22, 1954, and to therefore submit a formal agreement. The plaintiff, however, did invest considerable money in purchasing land from which the underlying coal had long since been mined out both by deep mining and strip mining processes. Considerable of the surface of this land had deep gorge-like ravines and ridges or peaks of earth as a result of the prior removal of the coal
and probably was adaptable for the disposal of commercial rubbish and garbage using th so-called sanitary fill method. The supervisors were never officially notified of the purchase of these lands although the chairman of the Board was an officer in the real estate company that negotiated for one of the tracts as representative of the plaintiff.
"As the result of a violent protest by a majority of the citizens of Snowden Township to the possible granting of a license and permit to the plaintiff to operate a commercial garbage and rubbish dump within its confines, the supervisors, on July 14, 1954, rescinded their motion of May 22, 1954 'to grant to Joseph Zupancic permission to operate a sanitary fill in the Township.' The hearing judge found that the personal knowledge of the chairman of the Board of Supervisors that the plaintiff had purchased a tract of mined-out acreage was not official notice to the Board. He further found that the letter from the secretary of the Board, dated May 22, 1954, to the plaintiff, was not a permit or a license to operate a commercial refuse disposal dump, but only a proposal in the nature of negotiations that such a permit might be granted if the plaintiff was amenable to the restrictions, conditions and limitations set forth at large in the letter. Because the plaintiff had never signified his ...