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

COMMONWEALTH COURT OF PENNSYLVANIA


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]

§ 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 approval is not rendered moot by the Township's protective appeal.

In determining whether to sustain preliminary objections in the nature of a demurrer all well-pleaded facts and all inferences that may be deduced therefrom, but not conclusions of law, must be accepted as true. County of Allegheny v. Dominijanni, 109 Pa. Commonwealth Ct. 484, 531 A.2d 562 (1987). A demurrer will not be sustained unless the face of the complaint shows that the law will not permit recovery, and any doubts should be

[ 124 Pa. Commw. Page 599]

    resolved against sustaining the demurrer. Dominijanni. However, any argumentative allegations or expressions of opinion are not accepted as true. Firing v. Kephart, 446 Pa. 560, 353 A.2d 833 (1976).

The Appellants argue that Section 908(9) of the MPC*fn5 required the Board to render a written decision upon the challenge within forty-five days after the last hearing or upon the stipulated extension. The Appellants contend that the last hearing date was June 8, 1987, and not the July 13, 1987, meeting at which the Board heard oral arguments. The Appellants cite the case of Quality Food Market, Inc. v. Zoning Hearing Board of South Lebanon Township, 50 Pa. Commonwealth Ct. 569, 413 A.2d 1168 (1980)*fn6 in support of their contention.

[ 124 Pa. Commw. Page 600]

The common pleas court concluded that Quality was not controlling and for purposes of determining compliance with Section 908(9) of the MPC the common pleas court concluded that the last hearing date was July 13, 1987. A review of the record supports the common pleas court's conclusion.*fn7 Section 908(5) of the MPC, 53 P.S. § 10908(5) provides: "The parties shall have the right to be

[ 124 Pa. Commw. Page 601]

    represented by counsel and shall be afforded the opportunity to respond and present evidence and argument and cross-examine adverse witnesses on all relevant issues." (Emphasis added.) The common pleas court held that Section 908(9) of the MPC does not limit the term "hearing" to proceedings where substantive evidence is received, but also includes specially scheduled sessions for argument by counsel. Accordingly, the last hearing date in the context of Section 908(9) was July 13, 1987, and the Board had forty-five days from that date or until August 27, 1987, to render its written decision.

In the alternative, Appellants argue that they stipulated to an extension of the forty-five day period until August 10, 1987, and that the Board's decision on that date was inadequate because it was oral and not written. Appellants maintain the Board's written decision of August 11, 1987, was untimely.

A review of the record reveals that the Board never requested that either Appellants or Appellees agree to an extension of time, nor that either of the parties agreed in writing to such an extension. Appellants and Appellees agreed to keep the record open until July 13, 1987, and after presenting oral argument at that time the record was closed. The common pleas court correctly found the Board's written decision was well within the forty-five day period ending August 27, 1987.

Appellants also argue that the Board's August 11, 1987, written denial was not accompanied by findings of fact and conclusions of law, and therefore did not satisfy the notice requirements of Section 908(9) of the MPC.

[ 124 Pa. Commw. Page 602]

Appellants assert that the Notice of Decision does not refer to the Appellees' ordinance or regulation and the applicant and the reviewing court were unable to determine if the Zoning Hearing Board's decision was reasoned and supported by substantial evidence.*fn8 The deemed approval provision of Section 908(9) of the MPC concerns itself with the failure of the board to render a timely decision. Section 908(a) of the MPC does not state that deemed approval occurs when the decision is not accompanied by findings and conclusions. Had the legislature intended such a result they would have done so.*fn9

Finally, to be entitled to a mandamus remedy, Appellants had to demonstrate a clear legal right to a remedy, that the Appellees had a duty that was ministerial in nature, and that there was no other appropriate and adequate remedy. Valley Forge Racing Association v. State Horse Racing Commission, 449 Pa. 292, 297 A.2d 823 (1972). Appellants failed to comply with the standards and the common pleas court properly granted Appellees' preliminary objections and dismissed Appellants' amended complaint in mandamus.*fn10

Accordingly, we affirm the decision of the common pleas court.

[ 124 Pa. Commw. Page 603]

Order

Now, April 5, 1989, the order of the Court of Common Pleas of Delaware County at No. 87-11441, dated February 11, 1988 is hereby affirmed.

Disposition

Affirmed.


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