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CLEPPER FARMS v. RAY E. TRIMMER ET AL. (04/28/82)

decided: April 28, 1982.

CLEPPER FARMS, INC., APPELLANT
v.
RAY E. TRIMMER ET AL., APPELLEES. RAY E. TRIMMER ET AL., APPELLANTS V. CLEPPER FARMS, INC., APPELLEE



Appeals from the Order of the Court of Common Pleas of Cumberland County in the case of Clepper Farms, Inc. v. Ray E. Trimmer, Gerald F. Koons, John F. Allison, C. Edward Thompson and LeRoy Erickson, Commissioners of Upper Allen Township, No. 2379 Civil Action, 1980.

COUNSEL

John M. Eakin, for appellant, Clepper Farms, Inc.

Thomas E. Wood, with him William E. Miller, Jr., Keefer, Wood, Allen & Rahal, for appellees, Ray E. Trimmer et al.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision of this case.

Author: Blatt

[ 66 Pa. Commw. Page 327]

Before us are an appeal and a cross appeal from an order of the Court of Common Pleas of Cumberland County which directed the Board of Commissioners of Upper Allen Township (Board) to approve the preliminary subdivision plan of Clepper Farms, Inc. (Clepper Farms) subject to certain conditions.

On March 14, 1980, Clepper Farms submitted a preliminary subdivision plan to the Township and on May 19, 1980 the Township Planning Commission (Planning Commission) approved a motion that the plan, subject to certain conditions, be considered by the Board. At the Board's June 11, 1980 meeting, at which

[ 66 Pa. Commw. Page 328]

    representatives of Clepper Farms were present, a motion was made and rejected to approve the plan subject to eighteen conditions, which paralleled those which had been recommended by the Planning Commission. Later in the meeting, after the departure of Clepper Farms representatives, the Board voted to reject the plan for the reasons which had been stated as conditions in the original motion to approve. On June 16, 1980, the Board gave Clepper Farms written notice of the rejection, in which the reasons for rejection were set forth without reference to the ordinance or statutory provisions violated by the plan. On July 1, 1980, Clepper Farms brought an action in mandamus in the court below, seeking to compel approval of the preliminary subdivision plan because of the Board's failure to comply with the notice requirements of Section 508(2) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10508(2). When the pleadings were closed, Clepper Farms moved for judgment on the pleadings; in response, the court below ordered the preliminary subdivision plan approved subject to the conditions which had been recommended to the Board by the Planning Commission. Clepper Farms now appeals the allegedly improper inclusion of the conditions in the order issued below. The Board has cross appealed, alleging that the court erred in ordering approval of the plan in the first place.

Section 508 of the MPC provides in pertinent part:

(1) The decision of the governing body or the planning agency shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than fifteen days following the decision;

(2) When the application [for approval of a plat, whether preliminary or ...


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