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JAMES R. SAFFORD ET AL. v. BOARD COMMISSIONERS (06/06/78)

decided: June 6, 1978.

JAMES R. SAFFORD ET AL., APPELLANTS
v.
BOARD OF COMMISSIONERS, ANNVILLE TOWNSHIP, LEBANON COUNTY, PENNSYLVANIA AND RICHARD H. MEILY AND LOIS H. MEILY, WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Lebanon County in case of James R. Safford and Dianne L. Safford, his wife; Jon P. Meyer and Nancy L. Meyer, his wife; Steven C. Wade and Donna K. Wade, his wife; William D. Bentz and Gail A. Bentz, his wife; W. Harold Campbell and Kathryn R. Campbell, his wife; Gary E. Teter and Donna L. Teter, his wife; Stephen H. Williamson and Linda L. Williamson, his wife; Donald E. Bickhart and Patricia A. Bickhart, his wife; Richard E. Seibert and Anna M. Seibert, his wife; John E. Bausman and Miriam A. Bausman, his wife; Ronald G. Shay and Nancy L. Shay, his wife v. Board of Commissioners, Annville Township, Lebanon County, Pennsylvania, and Richard H. Meily and Lois H. Meily, his wife, No. 6 Equity Term, 1976.

COUNSEL

Thomas A. Ehrgood, with him Ehrgood & Ehrgood, for appellants.

Robert W. Feeman and George E. Christianson, with them Egli, Reilly, Wolfson & Feeman and Christianson & Meyer, for appellees.

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

Author: Rogers

[ 35 Pa. Commw. Page 632]

The appellants in this case are twenty-two persons who as eleven married couples purchased lots in a residential subdivision called East Annville Development located in Annville, a Township of the First Class. East Annville Development is a project of one Richard H. Meily. The appellants sued Annville Township and Richard H. Meily in equity seeking injunctive relief which would require the township or Meily, or both, to complete the paving of East Queen Street and East Walnut Street in East Annville Development, to install storm sewers where the township requires them and which would additionally require the township to accept and thereafter maintain the two streets as public streets of the township. The Chancellor in the Court of Common Pleas of Lebanon County, after trial on the merits, entered a final order refusing relief and dismissing the complaint. We believe that the appellants were entitled to relief and will order that it be provided.

By its Ordinance No. 217, enacted in July 1954 and remaining in effect thereafter at all times pertinent hereto, the Commissioners of Annville Township

[ 35 Pa. Commw. Page 633]

    adopted subdivision regulations which, inter alia, required subdividers either to construct the public improvements shown on their plans, including streets and storm sewers, or to provide the township with certified checks or surety bonds sufficient in amount to assure the completion of all such improvements. In 1963, the defendant Meily submitted to the Planning and Zoning Commission of Annville Township and thereafter to the Township Commissioners a plan of subdivision of his East Annville Development showing a number of streets but no other public improvements. This plan was approved by the Planning and Zoning Commission and by the Commissioners and was duly recorded in the office of the Recorder of Deeds of Lebanon County. The streets shown on the subdivision plan were not constructed by Meily at the time his plan was submitted, approved and recorded; and it is made apparent by this litigation that the township authorities neglected to require Meily to post the guarantees required by the township subdivision regulations for the construction of public improvements. The failure of the township to require the installation of the streets shown on Meily's division or to secure guarantees of completion was additionally in apparent disregard of Section 3066(c) of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. ยง 58066(c), which provided as follows:

(c) Improvements or guarantee thereof prerequisite to approval of plan. Before approving any subdivision plan for recording, the board of township commissioners shall either require that the necessary grading, paving and other street improvements, including where specified by the board, curbs, sidewalks, street lights, fire hydrants, water mains, sanitary sewers and storm sewers, shall have been installed in strict accordance with the standards and specifications

[ 35 Pa. Commw. Page 634]

    of the township, or that the township be assured by means of a proper completion guarantee in the form of a bond or the deposit of funds or securities in escrow sufficient to cover the cost of the required improvements, as estimated by the township engineer, that the said improvements will subsequently be installed by the owner. Where the subdivision plan has been approved and recorded, either after the specified improvements have been completed and approved by the Board of Township Commissioners, or if prior to completion upon proper completion guarantee as aforesaid, purchasers and mortgagees of lots in the subdivision, with or without buildings thereon or on any of them, shall be relieved of any and all liability for any deficiency in lack of or failure to complete the improvements above mentioned as set out in said plan or required as a condition precedent to the approval of the plan of subdivision, and any failure to complete or properly complete said improvements shall not encumber any or all of the lots in the subdivision.

The appellants acquired title to their lots in East Annville Development between August 17, 1973 and August 25, 1975. Four of the eleven married couples who purchased lots during this period acquired them directly from the defendant Meily. The remaining seven married couples acquired their lots from persons to whom Meily had earlier sold them. In each of the agreements of sale by which Meily sold lots to anyone, the following provision was inserted:

These Building Lots are being sold under and subject to the purchasers getting the Sewerage and Water hooked up at their expense and also installing the curbing and getting the ...


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