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JOSEPH A. PULEO & SONS v. BOROUGH COUNCIL PHOENIXVILLE (01/04/73)

decided: January 4, 1973.

JOSEPH A. PULEO & SONS, INC.
v.
BOROUGH COUNCIL OF PHOENIXVILLE, ET AL.



Appeal from the Order of the Court of Common Pleas of Chester County in case of Joseph A. Puleo & Sons, Inc. v. Borough Council of Phoenixville, being Peter Fedick, Edward Leo, Owen Scanlin, Warren Frock, James R. Peirson, Albert Brango, Joseph Strzelecki, Lester Turner, Joseph Fabian, Mary Shaffner, Raymond Ecock, Anthony Raniszewski, and Borough Manager John J. Kame of the Borough of Phoenixville, No. 138 February Term 1971.

COUNSEL

Allan B. Greenwood, for appellants.

George M. Painter, III, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 7 Pa. Commw. Page 249]

The Borough Council of Phoenixville appeals the order of the Court of Common Pleas of Chester County which directed the Borough to approve a subdivision plan of a certain tract of land submitted by Joseph Puleo & Sons, Inc.

Puleo had submitted an application to the Borough's Planning Commission on October 15, 1970 to get approval of a plan to subdivide certain property there. On November 24, 1970, which was the fortieth day after the submission of the application, Council rejected

[ 7 Pa. Commw. Page 250]

    the application. At that meeting at least one of the shareholders of the applicant corporation was present. On December 1, 1970 the Borough Manager sent a letter to the applicant notifying it of the decision dated November 24th.

In that posture Puleo proceeded in mandamus praying to compel the approval of its plan and the issuance of a building permit. The gravamen of the complaint was that the governing body had failed to act on the application within the statutorily prescribed time and further that it ignored the statutorily prescribed procedure, which would have the effect of allowing by default which he might have prevented by positive action. The Court of Common Pleas of Chester County agreed. This is why they are here.

At the outset, let us review Section 508 of Act 247 of the Municipalities Planning Code*fn1 which provides: "All applications for approval of a plot . . . whether preliminary or final, shall be acted upon by the governing body within such time limits as may be fixed in the subdivision and land development ordinance but the governing body shall render its decision and communicate it to the applicant not later than forty days after such application is filed. (1) The decision of the governing body shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than five days following the decision; . . . (3) Failure of the governing body or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented unless the applicant has agreed in writing to an extension of time or change in the prescribed manner of presentation of communication of the decision. . . ."

[ 7 Pa. Commw. Page 251]

The Borough here argues that (1) the fact that a shareholder was present at the Borough Council meeting on November 24 when the subdivision plan was rejected is sufficient to satisfy the statute's mandate that any decision be communicated to the applicant; (2) that the presence of the shareholder when the decision was rendered acts as personal notice to the corporate applicant; (3) that written notice was given the corporate applicant by the letter sent on December 1, 1970; and (4) that ...


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