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EDWARD B. MERTZ AND WILLIAM H. AGNEW v. STEPHEN LAKATOS ET AL. STEPHEN LAKATOS (01/06/78)

decided: January 6, 1978.

EDWARD B. MERTZ AND WILLIAM H. AGNEW, TRADING AS BUSHKILL ACRES
v.
STEPHEN LAKATOS ET AL. 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 H. 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 Rogers and Blatt, sitting as a panel of two. Opinion by Judge Blatt.

Author: Blatt

[ 33 Pa. Commw. Page 231]

This is an appeal by the three Supervisors of Bushkill Township and the Township of Bushkill (Township) in Northampton County from a common pleas court decision granting partial summary judgment in a mandamus action against them.

Edward B. Mertz and William H. Agnew (Developers), as developers of a tract of land, had agreed with the Supervisors that $13,000 would be deposited in an escrow account with a bank as security for the

[ 33 Pa. Commw. Page 232]

    completion of a road in their development. They notified the Supervisors by a letter dated October 18, 1973 and transmitted by ordinary mail, that the road had been completed and requested that the Supervisors accept it. The Township, through its Secretary, responded to the Developers by letter dated November 30, 1973 and dispatched by ordinary mail, that the Supervisors felt the road was not acceptable because of water drainage and driveway problems. It was not until on or about April 1, 1974, however, that the Developers received a letter by certified mail from the Township Engineer outlining the deficiencies he found with the road and indicating what corrective measures must be taken by the Developers before the Township Supervisors would accept the road and pass a resolution releasing the $13,000 security deposit from the bank. Shortly thereafter, the Developers filed a complaint in mandamus requesting that the Supervisors be ordered to adopt the necessary resolution to release the Developers' $13,000 from the bank. The Supervisors and the Township filed preliminary objections to the complaint, and the lower court dismissed the preliminary objections. The Supervisors and the Township then filed an answer to the complaint, whereupon the Developers filed a motion for partial summary judgment pursuant to Pa. R.C.P. No. 1098.*fn1 The lower court ruled on March 17, 1975

[ 33 Pa. Commw. Page 233]

    granting the Developers' motion for partial summary judgment and it ordered the Supervisors to adopt the required resolution so that the Developers' funds could be released from the bank. The Supervisors and the Township then filed a petition to open the summary judgment and simultaneously appealed the lower court's order. This Court ruled on November 13, 1975 that the appeal was premature and must be quashed, and we remanded the case to the Court of Common Pleas of Northampton County for a ruling on the outstanding petition to open the judgment. Mertz v. Lakatos, 21 Pa. Commonwealth Ct. 591, 347 A.2d 753 (1975). On March 27, 1976 that court entered an order denying the petition to open judgment, and the Supervisors and the Township again appealed to this Court on April 9, 1976.

The Developers contend that their action in mandamus was proper because they were trying to compel public officials (the Supervisors) to perform a ministerial act, which has been defined as one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority. Rose Tree Media School District v. Department of Public Instruction, 431 Pa. 233, 244 A.2d 754 (1968). They argue that the legal authority upon which they base their requested relief is Section 510 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10510, which provides:

(a) When the developer has completed all of the necessary and appropriate improvements, the developer shall notify the municipal governing body, in writing, by certified or registered mail, of the completion of the aforesaid improvements and shall send a copy thereof to the municipal ...


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