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BRIDGEVIEW APARTMENTS v. ROBERT D. BRADY ET AL. ROBERT D. BRADY (07/18/77)

decided: July 18, 1977.

BRIDGEVIEW APARTMENTS, INC.
v.
ROBERT D. BRADY ET AL. ROBERT D. BRADY, G. ROGER BOWERS, THEODORE R. ZAJAC, STEPHEN S. KELLY, WARREN BRADY AND HENRY GEORGE, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Bucks County in case of Bridgeview Apartments, Inc. v. Robert D. Brady, Gwendolyn J. Smith, G. Roger Bowers, Theodore R. Zajac, Stephen S. Kelly, Warren Brady and Henry George, No. 74-2275-05-6.

COUNSEL

Leslie G. Dias, with him Henry F. Huhn, for appellants.

William J. Fuchs, with him Gordon L. Keen, Jr., and Obermayer, Rebmann, Maxwell & Hippel, for appellee.

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

Author: Mencer

[ 31 Pa. Commw. Page 127]

This appeal has been taken by the supervisors and other officers of Bensalem Township in Bucks County (hereinafter Township) from the lower court's order directing them to issue certain zoning and building permits to Bridgeview Apartments, Inc. Bridgeview had brought an action in mandamus when the Township refused to reissue permits which had been originally granted in 1971. Since the lower court entered judgment without giving the Township an opportunity to file exceptions and without the ruling on such exceptions by the court en banc, as provided in Pa. R.C.P. No. 1038,*fn1 we reluctantly must remand.

In its opinion,*fn2 the lower court stated the relevant facts as follows:

[I]n March, 1971 plaintiff's [Bridgeview's] predecessor*fn1a made applications for zoning and building permits and also for site plan approval in order to construct certain apartment dwellings on two tracts of land owned by it in Bensalem Township. At that time the effective zoning ordinance permitted such use. Subsequently thereto, plot plans were submitted and a second

[ 31 Pa. Commw. Page 128]

    set of plot plans showing water, sewage, surface drainage and elevations. Site plan approvals were granted, building and zoning permits were granted and an agreement entered into between the township and the plaintiff regarding this development. As a result of the approvals and permits rendered plaintiff completed settlement upon the real estate in question under which it held equitable title previously under an agreement of sale, and work began upon the land in the nature of staking and earth moving at a total cost of approximately $40,000. Shortly thereafter due to some financing difficulties construction was stopped and it was not until December of 1973 that the plaintiff decided to continue with the project. At that time the plaintiff applied for a re-issuance of the building and zoning permits and this application was refused.

The lower court "ordered, directed and decreed that judgment be entered in favor of the plaintiff."

In its appeal to this Court, the Township has argued, in the alternative, that (1) the case should be remanded for the filing and disposition of exceptions to the decision of the court below, (2) the Township never had the authority under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as ...


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