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FRANK J. MERLINO v. PLAINS TOWNSHIP (09/07/79)

decided: September 7, 1979.

FRANK J. MERLINO, APPELLANT
v.
PLAINS TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Plains Township v. Frank J. Merlino, No. 20 of 1977.

COUNSEL

Hugh J. O'Connell, with him Silverblatt & Townend, for appellant.

Joseph C. Giebus, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 45 Pa. Commw. Page 506]

Developer Frank J. Merlino has appealed from an equity decision of the Court of Common Pleas of Luzerne County commanding specific performance of his agreement with Plains Township to provide proper

[ 45 Pa. Commw. Page 507]

    drainage in the vicinity of Birch Street, Hudson Gardens Plan, Plains Township.

The township had instituted an earlier equity action against the developer in connection with the development of the plan. To obtain the release of certain lots from the lis pendens effect of the litigation, developer executed an agreement dated August 11, 1975 with the township, in which the developer agreed to "provide proper drainage" in the rear of designated lots in the plan, a location in which a substantial storm drainage problem has existed.

In addition to his findings containing the above facts concerning the agreement, the chancellor found that:

1. The township tried to alter the agreement unilaterally, after its execution, by typing in an additional sentence to the effect that the storm drainage system must be "approved by the township engineer," but the developer never agreed to that amendment.

2. The developer failed to provide proper drainage, having dug an open ditch which has not controlled the storm drainage.

3. Proper drainage requires a 30-inch storm sewer, 150 feet long, with related excavation, planting and other facilities, as described in the ...


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