Appeals from the Orders of the Court of Common Pleas of Chester County in cases of Capital Investment Development Corporation v. Robert Jayes, Christopher Timothy and George DiFrancesco, individually and as Supervisors of West Whiteland Township, Nos. 175 October Term, 1974, and 176 October Term, 1974.
E. Craig Kalemzian, with him William H. Lamb, and Lamb, Windle & McErlane, for appellants.
Ronald M. Agulnick, with him Agulnick, Talierco, McShane & Supplee, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Blatt.
[ 30 Pa. Commw. Page 284]
This is an appeal by West Whiteland Township*fn1 from two orders of the Court of Common Pleas of Chester County. These orders granted motions for summary judgment filed by the Capital Investment Development Corporation (appellee) in two actions in mandamus.*fn2
[ 30 Pa. Commw. Page 285]
The appellee brought these actions alleging that on March 5, 1974 it had filed two applications with the Township for preliminary subdivision plan approval regarding the same twenty-three acre tract: one plan which would establish a mobile home park on the entire tract, and another which would provide for the construction of apartments on the entire tract. On the appellee's motions for summary judgment, the lower court found, in regard to the mobile home park application, that "[n]o notice of any action taken by the Board of Supervisors was ever sent, delivered or communicated to the plaintiff [appellee]." In regard to the application for the construction of apartments, the lower court found that the application had been submitted on April 22, 1974, that a purported denial of the application had been made on July 12, 1974 by the Township's Manager, that
[a]t no time within the period between the date of the submission of the plan for approval of the subdivision and the date of the purported denial was there a public meeting of the Board of Supervisors where action by that Board was taken on the application,
and that the manager's action had been "confirmed" by the Board of Supervisors at a public meeting on July 29, 1974.*fn3 The lower court then held that because the Township had failed to comply with the requirements of Section 508 of the Pennsylvania Municipalities Planning Code*fn4 (Code), 53 P.S. § 10508,
[ 30 Pa. Commw. Page 286]
for the denial of subdivision applications,*fn5 that both preliminary subdivision plans were therefore deemed to have been approved by operation of law. Section 508(3) of the Code, 53 P.S. § 10508(3).
The Pennsylvania Rules of Civil Procedure provide that any party may move for summary judgment, ...