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DONALD GASTER AND MARY ANN GASTER v. TOWNSHIP NETHER PROVIDENCE (04/05/89)

decided: April 5, 1989.

DONALD GASTER AND MARY ANN GASTER, APPELLANTS
v.
THE TOWNSHIP OF NETHER PROVIDENCE, JOSEPH LUGLIO AND ROBERT CLANCEY, APPELLEES



Appeal from the Order of the Court of Common Pleas of Delaware County in the case of Donald and Mary Ann Gaster v. The Township of Nether Providence, Joseph Luglio and Robert Clancey, No. 87-11441.

COUNSEL

John W. Nilon, Jr., with him, Lee A. Stivale, Nilon, Paul & Mardinly, for appellants.

John W. Wellman, with him, Denis M. Dunn, Petrikin, Wellman, Damico, Carney & Brown, for appellees.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 124 Pa. Commw. Page 596]

Donald and Mary Ann Gaster (Appellants) appeal from an order of the Court of Common Pleas of Delaware County (common pleas court) sustaining the preliminary objections of Nether Providence Township, Joseph Luglio and Robert Clancey (Appellees) and dismissing Appellants' amended complaint in mandamus against Appellees. We affirm.

Appellants own a 44.453 acre tract of land in Nether Providence Township (Township) which is zoned R-1 residential. On November 20, 1985, Appellants filed a challenge*fn1 to the Township's zoning ordinance (ordinance) alleging that the ordinance was exclusionary because

[ 124 Pa. Commw. Page 597]

    it failed to provide for mobile home parks and mobile homes in the Township. Appellants also submitted an application for approval of a mobile home park on their tract of land. Fourteen hearings were held between May 12, 1986, and August 10, 1987. On June 8, 1987, testimony was completed. The Appellants and the Appellees agreed that the record would remain open until July 13, 1987, in order for the Board to question the attorneys (Notes of Testimony, June 8, 1987, (N.T.) at 809). The Board also informed the Appellants and Appellees that it would render a decision on August 10, 1987, (N.T. at 809-810). On July 13, 1987, arguments were heard, and the Board denied Appellants' application and challenge on August 10, 1987. On August 11, 1987, the Board reduced to writing its Notice of Decision.*fn2 On August 31, 1987, Appellants appealed the Board's denial and also filed a complaint in mandamus to enforce a "deemed approval" pursuant to Section 908(9) of the MPC, 53 P.S.

[ 124 Pa. Commw. Page 598]

ยง 10908(9). The Appellees filed preliminary objections to the Appellants' complaint.*fn3

On October 2, 1987, the Appellants filed an amended complaint and the Appellees again filed preliminary objections in the nature of a demurrer alleging that Appellees' complaint failed to state a clear cause of action as required in mandamus. On November 10, 1987, the Board's findings of fact and conclusions were transmitted to the Appellants. On February 11, 1988, the common pleas court sustained Appellees' preliminary objections and dismissed the Appellants' amended complaint.*fn4 The common pleas court held that the Board's decision was timely filed, that the Appellants were not entitled to a deemed approval and that the Board's written decision was not invalid for failure to include specific findings of fact and an opinion.

On appeal, Appellants argue that: 1) the Board did not provide valid and timely written notice of its decision; 2) the Board failed to make findings of fact and conclusions of law in its decision; 3) and, an action in mandamus to enforce a deemed ...


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