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BOUDWIN v. GREAT BEND TWP.

March 28, 1996

ALFRED BOUDWIN and DOROTHEA BOUDWIN, Plaintiffs
v.
GREAT BEND TOWNSHIP, H. DOUGLAS HALL and EDMUND JONES, Defendants



The opinion of the court was delivered by: DURKIN

 Before the court is defendants' motion for judgment on the pleadings or, in the alternative, to dismiss plaintiffs' complaint for lack of subject matter jurisdiction.

 Plaintiffs, former property owners in Great Bend Township, brought this action pursuant to 42 U.S.C. § 1983 against Great Bend Township, H. Douglas Hall, a sewage enforcement officer for the Township and Edmund E. Jones, a secretary for the Township in which they seek damages by reason of defendants' alleged arbitrary and irrational conduct which lead to the recision of an approval of plaintiffs' plan for subdivision of their property.

 On December 22, 1995, defendants filed a motion for judgment on the pleadings or, in the alternative, to dismiss plaintiffs' complaint for lack of subject matter jurisdiction, together with a supporting brief. (Doc. No. 14). On January 29, 1996, plaintiffs filed an opposing brief. (Doc. No. 16). On February 6, 1996, defendants filed a reply brief. (Doc. No. 18).

 Since defendants have moved for judgment on the pleadings, the allegations in the complaint will be set forth in some detail. Plaintiffs allege that in August 1988 they were the owners of approximately 24.88 acres of real estate located in Great Bend Township. On October 9, 1989, the plaintiffs submitted a subdivision plan to the Susquehanna County Planning Commission which proposed to divide this real estate into four separate parcels. As a part of the plan, plaintiffs included percolation testing documents signed by Hall.

 Plaintiffs allege that on August 6, 1988 and on October 9, 1988, Hall had performed percolation testing on plaintiffs' land. Hall reported that the individual lots were suitable for on-lot sewage disposal systems and Hall signed the Planning Module indicating that the individual lots were suitable for on-lot sewage disposal systems.

 Plaintiffs allege that on or about March 15, 1990, the Township found the plaintiffs' subdivision plan to be in conformance with the applicable Township ordinances, the Township Sewage Facilities Plan and all other applicable regulations and therefore approved the subdivision as of March 15, 1990. Plaintiffs allege that on or about March 29, 1990, the Susquehanna County Planning Commission also found the plaintiffs' subdivision plan to be in conformity with county subdivision and land development ordinances and therefore approved the subdivision as of March 29, 1990. Plaintiffs allege that by April 1993, buyers for all four parcels had been found, and were prepared to purchase the parcels.

 Plaintiffs allege that pursuant to the Susquehanna County Subdivision Land Development Ordinance § 503.02, the Township and its secretary, Jones, are required to forward the approved Planning Modules to DER for final approval. Plaintiffs allege that if no information is received from DER within 120 days after the Module is sent, it is presumed that the approval stands. Plaintiffs allege that unbeknownst to them, the Township and Jones failed to forward plaintiffs' Planning Module to DER in violation of § 503.02.

 Plaintiffs allege that at some point after the Township and the Susquehanna County Planning Commission issued their approvals in 1990, the Township and Susquehanna County consolidated their sewage enforcement efforts into a committee known as Council of Government (COG) which was charged with the responsibility of enforcing and managing sewer related ordinances. Plaintiffs allege that in the summer of 1993 they were informed that despite having received prior sewage and subdivision approval from the Township, the Township and COG were rescinding the approval of the subdivision since the Planning Module had never been submitted to DER by the Township for DER's approval. Plaintiffs allege that further, COG would not approve the plan because Hall, who performed the percolation tests, was about to be decertified for performing improper and erroneous testing. Plaintiffs allege that upon reviewing their Planning Module, COG determined that the percolation tests performed by Hall were not stable and therefore could not substantiate the issuance of permits for feasible on-lot sewage disposal systems.

 Plaintiffs allege that upon reviewing plaintiffs' Planning Module, and based upon the fact that defendant Hall had repeatedly submitted erroneous tests results on prior occasions, COG sent representatives to the test cite to again perform the percolation tests previously performed by Hall. Plaintiffs allege that these new tests were performed on August 12, 1993 and purportedly indicated that the percolation tests originally performed by Hall were erroneous and did not reflect conditions present in the soil. COG and the Township therefore rescinded the approval of the original subdivision plan of the plaintiffs.

 Plaintiffs allege that as a result of defendants' acts, they were forced to sell the property as one parcel for an amount far below the value of the property as subdivided.

 Plaintiffs allege that Hall acted arbitrarily and irrationally in performing percolation tests on the subdivision, in reporting the percolation tests results, in performing percolation tests when he was not qualified to do so, in reporting the results of percolation tests when he was not qualified to do so, in approving planning modules in violation of Pennsylvania law and DER regulations, and in failing to report that the results of the percolation tests showed that the property was not suitable for on-lot sewage disposal.

 Plaintiffs allege that the Township and Jones acted arbitrarily and irrationally in failing to forward the subdivision plans and Planning Module to DER as required by the Pennsylvania Sewage Facilities Act, in failing to advise the plaintiffs of the lack of approval for the plaintiffs' subdivision and the fact that neither sewage nor building permits could issue for any lot covered by plaintiffs' subdivision, and in failing to obtain the minimum training, knowledge and skill necessary "to complete the duties of Township secretary."

 Plaintiffs allege that as a result of the above acts, they expended money in preparing their subdivision and attempting to sell the four parcels of land on the basis that they were subdividable. Plaintiffs allege that as a result of these acts they were unable to consummate the sale with the four prospective buyers with the result that they suffered lost profits from these sales as well as loss profits due to the fact that the land had to be sold as one parcel rather than four subdivided parcels. Plaintiffs allege that as a result of these acts, they have been required to expend ...


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