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PAXTON HOLLOW ESTATES v. LOWER PAXTON TOWNSHIP (12/13/85)

decided: December 13, 1985.

PAXTON HOLLOW ESTATES, LIMITED, AND UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLANTS
v.
LOWER PAXTON TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Lower Paxton Township v. Paxton Hollow Estates, Limited and United States Fidelity & Guaranty Company, No. 3211 S 1979.

COUNSEL

Jordan D. Cunningham, with him, Joanne H. Clough, Fox, Farr & Cunningham, P.C., for appellants.

Michael L. Rozman, with him, Richard H. Wix, Wix, Wenger & Weidner, for appellee.

Judges Craig and Palladino and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 93 Pa. Commw. Page 469]

Paxton Hollow Estates, Limited (Appellant) and United States Fidelity & Guaranty Company (Guaranty Company) appeal from a decision of the Court of Common Pleas of Dauphin County (trial court) which denied their motions for judgment non obstante veredicto (n.o.v.) and for new trial. For the reasons set forth below, we affirm.

Paxton Hollow Estates constructed an apartment complex in Lower Paxton Township (Township), Dauphin County, pursuant to an agreement with the Township. The agreement required Appellant to provide improvements to streets, drains, sidewalks, and related projects intended for dedication for public use in the apartment complex. The Guaranty Company had underwritten a bond for $152,600.00 guaranteeing performance of the agreement in conformity with an approved plan. The contract and bond agreement (agreement) was executed on March 25, 1975.

In September of 1978, Appellant sought acceptance by the Township of the dedicated improvements. The Township's engineer inspected and rejected the improvements on September 26, 1978, and on the following day prepared a memo listing twenty-four deficiencies. On October 26, 1978, the Township, its engineer and Appellant met to discuss the deficiencies in the improvements. Several meetings took place over the course of the next two years.

[ 93 Pa. Commw. Page 470]

In July of 1979, to protect its interests, the Township filed suit in assumpsit against Appellant and the Guaranty Company. The complaint averred that Appellant had failed to complete the improvements as required by the agreement and demanded judgment against Appellant and the Guaranty Company in the amount of $152,600.00, the full amount of the bond.

Following a jury trial, a verdict was issued in favor of the Township in the amount of $98,800.00. Appellant filed motions for judgment n.o.v. and for new trial. The main contention presented by Appellant was that the Township had the burden of proving that it had complied with Section 510 of the Municipalities Planning Code (MPC)*fn1 in its action in assumpsit on the agreement, and had failed to carry that burden. Section 510 governs the procedure to be used by a developer to obtain release from an improvement bond. The provision relied upon by Appellant is the deemed approval subsection, Section 510(c). The pertinent provisions of Section 510 are as follows:

[ 93 Pa. Commw. Page 471]

(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 engineer. The municipal governing body shall, within ten days after receipt of such notice, direct and authorize the municipal engineer to inspect all of the aforesaid improvements. The municipal engineer shall, thereupon, file a report, in writing, with the municipal governing body, and shall promptly mail a copy of the same to the developer by certified or Page 471} registered mail. The report shall be made and mailed within thirty days after receipt by the municipal engineer of the aforesaid authorization from the governing body ; said report shall be detailed and shall indicate approval or rejection of said improvements, ...


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