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BERT R. WIGGS AND ELSIE M. WIGGS v. NORTHAMPTON COUNTY HANOVER TOWNSHIP BOARD SUPERVISORS ET AL. (03/02/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 2, 1982.

BERT R. WIGGS AND ELSIE M. WIGGS, HIS WIFE, APPELLANTS
v.
THE NORTHAMPTON COUNTY HANOVER TOWNSHIP BOARD OF SUPERVISORS ET AL., APPELLEES

Appeal from the Order of the Court of Common Pleas of Northampton County in the case of Bert R. Wiggs and Elsie M. Wiggs, his wife v. The Northampton County Hanover Township Board of Supervisors and The Northampton County Hanover Township Planning Commission, No. 304 May Term, 1976.

COUNSEL

B. Ryland Wiggs, III, for appellants.

Wesley M. Wasylik, for appellees.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Palladino did not participate in the decision in this case.

Author: Blatt

[ 65 Pa. Commw. Page 114]

Before us is an appeal brought by appellants, landowners, Bert R. and Elsie M. Wiggs of an order of the Court of Common Pleas of Northampton County denying their motion to take off a non-suit. In their motion before the court below the appellants sought to have the appellees, the Hanover Township Planning Commission and Board of Supervisors (Township), sign and thereby indicate their approval of a subdivision plan which the appellants had submitted.

The facts in this case are not in dispute. On April 5, 1976, the appellants submitted a mandatory "Pre-Application Sketch Plan" to the Township and on May 27, 1976, after reviewing the plan, the Township informed them that the proposed plan did not comport with certain*fn1 township ordinances and regulations. At a meeting of the Board of Supervisors on June 8, 1976, the appellants were again informed that certain changes were necessary in order for their plan to be approved and they then decided to submit a revised plan in part on June 18, 1976, and in final form on June 23, 1976. Finally, on August 12, 1976, the Township notified the appellants that their plan was

[ 65 Pa. Commw. Page 115]

    denied because it still was not in compliance with the Township's land development regulations. The appellants then petitioned the court below in mandamus seeking to have their plan deemed approved by operation of Section 508 of the Pennsylvania Municipalities Planning Code (MPC)*fn2 which in pertinent part, provides as follows:

All applications for approval of a plat . . . whether preliminary or final, shall be acted upon by the governing body or the planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it to the applicant not later than ninety days following the date of the regular meeting of the governing body or the planning agency . . . next following the date the application is filed. . . .

(3) Failure of the governing body or the planning agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . .

The appellants argued below, that their plan should have been deemed approved inasmuch as more than 90 days had elapsed between their April 5, 1976 preliminary plan submission and the Township's August 12, 1976 denial. The court below, after hearing testimony, found that inasmuch as substantial changes were voluntarily made by the appellants to their plan on June 18 and 23 of 1976, the 90 days would commence on either of these dates and,

[ 65 Pa. Commw. Page 116]

    therefore, that the statutory period had not expired. DePaul Realty Co. v. Borough of Quakertown, 15 Pa. Commonwealth Ct. 16, 324 A.2d 832 (1974). Accordingly, the court granted the Township's motion for non-suit and later denied the appellants' request to take off the non-suit. This appeal followed.

We agree with the court below that the instant situation is controlled by our decision in DePaul Realty. In that case the applicant/landowner filed a revised subdivision plan because a denial of a parking variance sought by him revealed a defect which existed in his original subdivision plan. We held there that the submission of the revised plan was voluntary and inasmuch as the changes therein were substantial, Section 508's 90 day period began to run anew from the filing date of the revised plan. We recognized that "DePaul had an option. It could have insisted on its rights under the originally filed plan, and if the Borough Council had not acted within 90 days in such case, then DePaul would have been entitled to approval of its plans." Id. at 23, 324 A.2d at 835. Even though placing the applicant in such a dilemma, at first blush, might seem harsh, we observed, acknowledging the often technical nature of such plans, that:

The logic of this holding is realized when one notes that under DePaul's contention, the applicant could file revised plans on the 89th day, and the governing body would have to review the revised plans and render its adjudication within 24 hours. Clearly, this was not the intent of the Legislature.

Id.

We reiterate here the DePaul Realty proposition that the public's interest in uniform land development must take precedence over private interests, see Section 1922(5) of the Statutory Construction Act of 1972, 1

[ 65 Pa. Commw. Page 117]

Pa. C.S. ยง 1922(5), and, we choose not to retreat, as the appellants urge, from our decision in that case. The issue here becomes, therefore, whether or not the appellants' revised plan, which was submitted on June 18 and 23 of 1976, was both voluntarily offered and substantially different from their April 5, 1976 preliminary plan. DePaul Realty.

Our close review of the record indicates that the court below was correct. Specifically, a comparison of the original preliminary plan with the revised plan discloses that the appellants made numerous*fn3 corporeal changes -- far beyond the revisions which the applicant made in DePaul Realty. Furthermore, the record indicates that the appellants submitted their revised plan "voluntarily" even though they incorporated certain comments*fn4 made by the Township in its letter of May

[ 65 Pa. Commw. Page 11827]

, 1976. DePaul Realty. And, like the applicant in DePaul Realty, they could also have opted to stand by their original plan. We believe, therefore, that the Township's August 12, 1976 denial of the appellants' plan was timely.

We must next determine whether or not the instant situation was a "clear case" in which a motion to take off a non-suit should have been denied. Generally, a non-suit is proper only if the fact-finder, after viewing the evidence (and all reasonable inferences incidental thereto) in the light most favorable to the complainant, could not reasonably conclude that the elements of a cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977); see Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). To make such an examination requires us first to determine whether or not the Township's denial of the appellants' revised plan was justified on the basis that it was not in compliance with the Township's land development ordinances and regulations. And our careful scrutiny of the record indicates that the court below was correct in finding that the appellants' original and revised plan still did not comply with a number*fn5 of subdivision regulations.

[ 65 Pa. Commw. Page 119]

Inasmuch, therefore, as the court below did not commit any errors of law or abuse its discretion, we believe that it could have reasonably concluded that the appellants failed to establish the elements of a cause of action in this matter. The motion to remove non-suit was therefore properly denied.

We will, therefore, affirm the order of the court below.

Order

And, Now, this 2nd day of March, 1982, the order of the Court of Common Pleas of Northampton County in the above-captioned matter is affirmed.

Judge Palladino did not participate in the decision in this case.

Disposition

Affirmed.


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