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EDWARD B. MERTZ AND WILLIAM H. AGNEW v. STEPHEN LAKATOS (11/13/75)

decided: November 13, 1975.

EDWARD B. MERTZ AND WILLIAM H. AGNEW, T/A BUSHKILL ACRES
v.
STEPHEN LAKATOS, STERLING RISSMILLER, ROBERT W. KOSTENBADER, SUPERVISORS OF BUSHKILL TOWNSHIP, AND THE TOWNSHIP OF BUSHKILL, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Northampton County in case of Edward B. Mertz and William Agnew, t/a Bushkill Acres v. Stephen Lakatos, Sterling Rissmiller, Robert W. Kostenbader, Supervisors of Bushkill Township, and the Township of Bushkill, No. 31 April Term, 1974.

COUNSEL

Joseph M. Reibman, with him Reibman and Reibman, for appellants.

William H. Agnew, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 21 Pa. Commw. Page 591]

Edward B. Mertz and William H. Agnew (appellees), as developers of a tract of land in Bushkill Township,

[ 21 Pa. Commw. Page 592]

Northampton County, agreed with the Supervisors of Bushkill Township that $13,000 would be deposited in an escrow account with the Nazareth Federal Savings and Loan Association as security for the construction of a road in the development. Appellees completed construction of the road and notified the Supervisors on October 18, 1973 of the road completion and requested the Supervisors to accept the road.

On December 1, 1973, appellees received a letter, dated November 30, 1973, from J. H. Tanzos, Secretary of Bushkill Township, which stated: "[T]he road is not acceptable at this time because of water drainage and driveway problems." Thereafter, on April 2, 1974, appellees received a copy of a letter written by Robert L. Collura, the Bushkill Township engineer. This letter outlined the alleged deficiencies of the road and stated that approval of the road would be contingent on the completion of one or two proposed modifications.

On April 3, 1974, appellees filed a complaint in mandamus alleging that the Supervisors and the Township should be ordered to release the $13,000 escrow fund and requesting incidental damages in the amount of $10,000. The trial court granted appellees' motion for partial summary judgment and ordered the release to appellees of the $13,000 escrow fund. Thereafter, the Supervisors filed with the trial court a petition to open the partial summary judgment and also filed here the instant appeal.*fn1

Partial summary judgment was granted by the trial court under the authority of Rule 1098 of the Pennsylvania Rules of Civil Procedure dealing with action in mandamus. That rule provides:

"At any time after the filing of the complaint, the court may enter judgment if the right of the plaintiff thereto is clear, but the judgment may be opened upon cause ...


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