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decided: May 24, 1977.


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.

Author: 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, Pa. R.C.P. 1035(a), and that

[t]he judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories,

[ 30 Pa. Commw. Page 287]

    and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa. R.C.P. 1035(b).

The appellee, as the moving party, had the burden here of proving that there were no issues of material fact, and the record must be examined in a light most favorable to the Township as the nonmoving party. Commonwealth v. Transamerica Insurance Co., 12 Pa. Commonwealth Ct. 190, 316 A.2d 85 (1974). And, because the lower court granted both motions for summary judgment, we must determine whether or not such action was proper.

The Township has argued that the summary judgments were improperly granted because the pleadings raised issues of material fact. Although a review of the pleadings indicates that questions of fact were raised thereby, the appellee filed affidavits in support of its motions and this case, therefore, must be considered in light of Pa. R.C.P. 1035(d) which provides as follows:

[ 30 Pa. Commw. Page 288]

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his Page 288} pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.)

In Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973), our Supreme Court held that Pa. R.C.P. 1035(d) prohibits a party opposing a motion for summary judgment, the Township here, from relying on the allegations contained in the pleadings to establish issues of material fact when supporting affidavits have been filed by the moving party.

Controverted facts that appear in the pleadings can be verified by either side by persons who would be competent to testify at the trial of the matter. Supporting affidavits, after a motion for summary judgment, are acceptable as proof of facts.

Issue of facts in the pleadings are significant only when there are no supporting affidavits before the court.

Although a court under Rule 1035 must ignore controverted facts appearing only in the pleadings, under the Rule all facts must be considered which are contained in the pleadings and affidavits and which are not controverted by opposing pleadings or affidavits. (Citations omitted.)

Phaff v. Gerner, 451 Pa. at 150-152, 303 A.2d at 829-830.

We have examined both the uncontroverted facts contained in the pleadings and the facts supported by the affidavits submitted by the appellee and have found that the lower court's findings are properly

[ 30 Pa. Commw. Page 289]

    based thereon.*fn6 Because the facts thus established clearly indicate that the Township failed to comply with Section 508 of the Code, the lower court was correct in ordering that the subdivision plans were deemed to have been approved by operation of law. V.C. Finisdore, Inc. v. Township of Lower Merion, 27 Pa. Commonwealth Ct. 598, 367 A.2d 412 (1976); Swinehart v. Upper Pottsgrove Township, 23 Pa. Commonwealth Ct. 282, 351 A.2d 702 (1976); Horst v. Derry Township Board of Supervisors, 21 Pa. Commonwealth Ct. 556, 347 A.2d 507 (1975).

The Township has also argued that, even if the motions for summary judgment were properly granted, the lower court could only have ordered the approval of either subdivision application, not of both. It seems clear to this Court, however, that a developer who has received approval of two mutually exclusive subdivision applications from a Township may then develop the property in conformity with the plan it prefers and we have not discovered, nor has the Township directed our attention to, any limitation either in the Code or in the Township's subdivision and land development ordinance prohibiting the situation that has occurred here (i.e., that a developer might have two mutually exclusive development plans which have been approved, and between which a choice will eventually have to be made as to which one will provide the basis for future development).

We, therefore, affirm the orders of the lower court.


And Now, this 24th day of May, 1977, the order of the Court of Common Pleas of Chester County, dated

[ 30 Pa. Commw. Page 290]

May 25, 1976 and numbered 175 October Term, 1974, is hereby affirmed.


And Now, this 24th day of May, 1977, the order of the Court of Common Pleas of Chester County, dated May 25, 1976 and numbered 176 October Term, 1974, is hereby affirmed.



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