HomeMy WebLinkAbout2020-06094
THE CUSTER FAMILY : IN THE COURT OF COMMON PLEAS OF
LIMITED PARTNERSHIP, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
: CIVIL ACTION
v. :
:
SILVER SPRING TOWNSHIP, :
Defendant : NO. 2020-06094 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
BEFORE PLACEY, SMITH, and HYAMS, JJ.
OPINION and ORDER OF COURT
PLACEY, J., 4 May, 2021.
For disposition in this case in which a developer is suing a municipality for breach
of contract and unjust enrichment as a result of the municipality’s failure to accept
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dedication of a road are preliminary objections filed by Defendant to Plaintiff’s
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complaint. The preliminary objections seek dismissal of the complaint, on grounds of
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a failure to state a claim upon which relief can be granted and a lack of sufficient
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specificity.
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Complaint, filed October 30, 2020 (hereinafter Plaintiff’s Complaint).
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Preliminary Objections, filed December 28, 2020 (hereinafter Defendant’s Preliminary
Objections).
3
Defendant’s Preliminary Objections, prayer for relief.
4
Defendant’s Preliminary Objections, ¶¶3-14.
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Defendant’s Preliminary Objections, ¶¶15-17.
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Briefs have been submitted by the parties. Oral argument on the preliminary
objections was held on April 16, 2021.
For the reasons stated in this opinion, Defendant’s preliminary objections will be
denied.
STATEMENT OF FACTS
The allegations of Plaintiff’s complaint may be summarized as follows. Plaintiff is
a limited partnership and residential real estate developer, with offices in Dauphin
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County, Pennsylvania. Defendant is a township of the second class, located in
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Cumberland County, Pennsylvania.
In the summer of 2005, Plaintiff commenced development of a residential
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community in the municipality, known as the Preserve at Simmons Creek. The project
involved a single road, ending in a cul-de-sac, leading into and out of the
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development.
4. All appropriate and necessary land development and subdivision
plans were reviewed, revised and ultimately approved by the Board
of Supervisors of \[the municipal defendant\]. The Final Subdivision
plan for \[the development\] was filed in the Recorder of Deeds office
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for Cumberland County, Pennsylvania on March 21, 2007.
* * * *
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Brief in Support of the Preliminary Objections to the Complaint, filed January 25, 2021
(hereinafter Defendant’s Brief); Plaintiff the Custer Family Limited Partnership’s Brief in
Opposition to Defendant’s Preliminary Objections to Plaintiff’s Complaint, filed January 26,
2021 (hereinafter Plaintiff’s Brief).
7
Plaintiff’s Complaint, ¶¶1, 3.
8
Plaintiff’s Complaint, ¶2.
9
Plaintiff’s Complaint, ¶3.
10
Plaintiff’s Complaint, ¶5.
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Plaintiff’s Complaint, ¶4.
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6. Plaintiff constructed and paved the road consistent with all \[of
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the municipality’s\] rules, regulations, and project specifications.
* * * *
10. The paving of \[the road\] was completed, inspected and
accepted by \[the municipality\] in the first week of September,
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2019.
Notwithstanding (a) that the municipality, “via its authorized agents on the Board,
\[had\] agreed and orally represented to Plaintiff that upon completion of the road, and
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satisfaction of all other requirements, . . . it would accept dedication of the road,” (b)
that an engineer engaged by the municipality had observed no problems or deficiencies
during an onsite inspection of “preparations being made to the road in advance of the
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wearing course,” (c) that a subsequent inspection of the application of the wearing
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course by the engineer had revealed no deficiencies, (d) that “\[d\]uly authorized
representatives of \[the municipality had\] approved the construction and final paving of
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the road, (e) that as-built plans with respect to the road \[had been\] reviewed by an
engineer engaged by the municipality and, as finalized, prompted no objections by the
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municipality, (f) that all conditions for acceptance had been met by October of 2019,
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Plaintiff’s Complaint, ¶6.
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Plaintiff’s Complaint, ¶10.
14
Plaintiff’s Complaint, ¶13.
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Plaintiff’s Complaint, ¶7.
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Plaintiff’s Complaint, ¶8.
17
Plaintiff’s Complaint, ¶9.
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Plaintiff’s Complaint, ¶¶11-12.
19
Plaintiff’s Complaint, ¶13.
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and (g) that Plaintiff had “justifiably relied” upon the municipality’s assurances of
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acceptance,
Defendant, without any justification, has refused to accept
dedication of the road. Instead, it has stonewalled, raised patently
frivolous objections—including alleged invoicing disputes pertaining
to an entirely different development—ignored repeated requests by
counsel to place the issue on the public meeting agenda, and acted
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in bad faith by resisting dedication with no basis in fact or law.
The municipality’s conduct is attributable, in part, to “the bizarre and frankly belligerent
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behavior of one of its own Supervisors . . . ,” according to Plaintiff.
Plaintiff’s complaint asserts claims for breach of contract, based on a breach of
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the purported agreement to accept the offer of dedication, and unjust enrichment,
based upon Plaintiff’s alleged “conferr\[al of\] a substantial benefit upon Defendant.
Specifically Defendant is avoiding both the costs of maintaining the road and any
potential liability flowing from that responsibility, while wrongly imposing those costs and
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legal exposure upon Plaintiff.”
Plaintiff requests an order directing specific performance of the municipality’s
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alleged contractual obligation to accept its offer of dedication, an award of monetary
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Plaintiff’s Complaint, ¶22.
21
Plaintiff’s Complaint, ¶16.
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Plaintiff’s Complaint, ¶32.
23
Plaintiff’s Complaint, ¶¶19-26.
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Plaintiff’s Complaint, ¶¶27-32.
25
Plaintiff’s Complaint, ¶28.
26
See Plaintiff’s Complaint, ¶25.
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damages, and reimbursement for attorney’s fees. To this complaint, Defendant has
filed the preliminary objections sub judice.
Defendant’s preliminary objections challenge the legal sufficiency of Plaintiff’s
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breach-of-contract claim on the basis of the statute of frauds, a township ordinance
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deeming improvements private in the absence of a formal acceptance of dedication,
and the prerequisite for formation of a contract of an acceptance in response to an
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offer. With respect to the legal sufficiency of Plaintiff’s unjust enrichment claim,
Defendant contends
12. . . . \[B\]ecause \[the claim\] sounding in Unjust Enrichment is
derivative of the Breach of Contract claim, this, too, is barred by the
Statute of Frauds.
13. Additionally, . . . the Unjust Enrichment claim\[ is\] legally
insufficient because in any contract there must be an offer and
acceptance, and although Plaintiff has offered the dedication, the
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\[municipality\] has not accepted it.
The specificity of Plaintiff’s pleading is challenged by Defendant in its preliminary
objections by noting that the complaint “fail\[s\] to provide facts on the time,
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circumstances and formation of the alleged oral contract.” “Without specificity of the
time, circumstances and formation of the alleged oral contract, it is impossible for the
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\[municipality\] to plead a responsive answer,” according to Defendant.
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Plaintiff’s Complaint, prayers for relief.
28
Defendant’s Preliminary Objections, ¶¶6-11.
29
Defendant’s Preliminary Objections, ¶10.
30
Defendant’s Preliminary Objections, ¶13.
31
Defendant’s Preliminary Objections, ¶¶12-13.
32
Defendant’s Preliminary Objections, ¶16.
33
Defendant’s Preliminary Objections, ¶17.
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In response to Defendant’s preliminary objections, Plaintiff argues, inter alia, that
the statute of frauds represents “an affirmative defense to a claim and not a challenge to
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the legal sufficiency of the pleadings.” It is further noted that the complaint “avers that
Defendant via its authorized agents on the Board of Supervisors, agreed and orally
represented to Plaintiff that, upon completion of the road and satisfaction of all
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applicable requirements, \[the municipality\] would accept dedication of the road”; given
the balance of the complaint detailing the alleged breach, the pleading, according to
Plaintiff, presents “\[s\]ufficient factual material \[to enable\] Defendant . . . to formulate a
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defense.”
In its brief in support of the preliminary objections, Defendant proposes an issue
which is, perhaps implicitly, encompassed by the objections: “Whether \[the
municipality’s\] Preliminary Objection to the Complaint, legal insufficiency of a pleading,
should be granted, where the Municipalities Planning Code makes the acceptance of a
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proposed dedication discretionary.”
On the subject of the legal sufficiency of Plaintiff’s complaint, Plaintiff’s brief
focuses upon the directly raised issue of the statute of frauds, arguing that
“Pennsylvania Courts have consistently interpreted \[the Pennsylvania Rules of Civil
Procedure\] to require the Statute of Frauds to be raised as new matter, as opposed to a
34
Plaintiff the Custer Family Limited Partnership’s Response in Opposition to Defendant Silver
Spring Township’s Preliminary Objections, ¶7, filed January 26, 2021 (hereinafter Plaintiff’s
Answer to Defendant’s Preliminary Objections, ¶__).
35
Plaintiff’s Answer to Defendant’s Preliminary Objections, ¶13.
36
Plaintiff’s Answer to Defendant’s Preliminary Objections, ¶17.
37
Defendant’s Brief, at 2.
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basis for preliminary objections.” Plaintiff also requests in the brief that the preliminary
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objections be denied as untimely.
As noted, oral argument on Defendant’s preliminary objections to Plaintiff’s
complaint was held on April 16, 2021. At the argument, Defendant’s counsel withdrew,
for procedural reasons, the contention that a demurrer should be sustained on the basis
of the statute of frauds, and did not dispute that the road in question, as-built, met all of
the township’s specifications. Plaintiff’s counsel withdrew the request to dismiss
Defendant’s preliminary objections based upon untimeliness.
STATEMENT OF LAW
Demurrers and pleading specificity. In considering a preliminary objection in the
nature of a demurrer, a court must regard “as true all well-pleaded, material, relevant
facts, and every inference fairly deducible from those facts,” and “\[w\]here a doubt exists
as to whether a demurrer should be sustained, this doubt should be resolved in favor of
overruling it.” Podgurski v. Pennsylvania State University, 722 A.2d 730, 731 (Pa.
Super. 1998) (citations omitted).
To determine whether a complaint is sufficiently specific,
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Plaintiff’s Brief, at 6.
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In this regard, Plaintiff’s brief, at page 11, states:
. . . Plaintiff filed its Complaint enclosed with a Notice to Plead on or about
October 30, 2020. The Return of Service indicates that Defendant Silver Spring
was served on November 6, 2020. See, Sheriff’s Return of Service. Therefore,
pursuant to \[Pa. R.C.P.\] 1026, Defendant’s preliminary objections were due on or
before November 26, 2020. Defendant did not seek any extension to file a late
response. Nonetheless, Defendant filed its preliminary objections on December
28, 2020, over one month after they were due. In filing its preliminary objections,
Defendant did not offer any justification for why they were late or why it was
unable to file a timely response.
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a court must ascertain whether the facts alleged are sufficiently
specific to enable a defendant to prepare his defense. . . .
Preliminary objections in the nature of a motion for a more specific
pleading raise the sole question of whether the pleading is
sufficiently clear to enable the defendant to prepare a defense. . . .
Unified Sportsmen of Pennsylvania v. Pennsylvania Game Commission (PGC), 950
A.2d 1120, 1134 (Pa. Cmwlth. 2008) (citations omitted) (emphasis added).
“\[A\] complaint need not cite evidence but only those facts necessary for the
defendant to prepare a defense.” Id. “\[I\]f the facts have been pled properly, the parties
may be relegated to discovery for evidentiary details.” Fornataro v. Jorgensen, 34 Pa.
D. & C.5th 265, ___, 2013 WL 10872021, *4 (Lawrence County 2013).
In a contract action, “\[t\]he necessary material facts that must be alleged . . . are
simple: there was a contract, the defendant breached it, and plaintiff\[\] suffered damages
from the breach.” McShea v. City of Philadelphia, 995 A.2d 334, 340 (Pa. 2010).
Statute of frauds. Under a Pennsylvania statute of frauds, certain agreements
respecting land must be in writing to be enforceable. See 35 P.S. ¶1 (Parol leases, etc.;
estates in land not to be assigned, etc., except by writing).
As a procedural matter, Pennsylvania Rule of Civil Procedure 1030(a) provides
that certain “affirmative defenses including but not limited to the defenses of . . . statute
of frauds . . . shall be pleaded in a responsive pleading under the heading ‘New
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Matter’.” “The defense of the bar of a statute of frauds . . . can be asserted only in a
responsive pleading as new matter under Rule 1030.” Note, Pa. R.C.P. 1028(a)(4)
(emphasis added). Thus, in Bocchicchio v. General Public Utilities Corporation, 689
A.2d 305 (Pa. 1997), the Pennsylvania Superior Court reversed, on procedural grounds,
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Pa.R.C.P. 1030(a).
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a lower court’s grant of preliminary objections in a contract action based on the statute
of frauds.
Breach of contract; unjust enrichment. “The elemental aspects necessary to give
rise to an enforceable contract are ‘offer’, ‘acceptance’, ‘consideration’ or ‘mutual
meeting of the minds.’” Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super. 1993)
(citations omitted). Although acceptance frequently takes the form of a return promise, it
can also take the form of performance. “A unilateral contract is a contract wherein one
party accepts a promissory offer which calls for the other party to accept by rendering a
performance. Bauer v. Pottsville Area Emergency Medical Services, 758 A.2d 1265,
1268 (Pa. Super. 2000) (citation omitted); cf. Robert Mallery Lumber Corporation v. B.
& F. Associates, Inc., 440 A.2d 579 (Pa. Super. 1982) (applying doctrine of promissory
estoppel, whereby promise unsupported by consideration is enforced due to promisee’s
reliance in order to avoid injustice).
The elements of a cause of action for unjust enrichment are “(1) an enrichment;
and (2) an injustice resulting if recovery for the enrichment is denied.” Chesney v.
Stevens, 644 A.2d 1240, 1243 n.4 (Pa. Super. 1994). A claim based upon unjust
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enrichment (sometimes referred to as a quasi-contract claim) is dependent not upon
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the existence of an enforceable contract, but upon equitable principles which warrant
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the imposition of a contract implied-in-law. For example, it was said in McGaffic v.
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See Pratter v. Penn Treaty American Corporation, 11 A.3d 550, 556 (Pa. Cmwlth. 2010).
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See Sevast v. Kakouras, 915 A.2d 1147, 1153 n.7 (Pa. 2007) (distinguishing quasi-contracts
based upon unjust enrichment from “true contracts”).
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See Pratter v. Penn Treaty American Corporation, 11 A.3d 550, 556 (Pa. Cmwlth. 2010)
(“‘Unjust enrichment,’ though equitable in nature, is described as a doctrine creating a
‘contract implied-in-law, or quasi contract’”).
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City of New Castle, 973 A.2d 1047, 1055 n.10 (Pa. Cmwlth. 2009), that, “\[t\]o avoid
obvious injustice, quasi-contract applies where a municipality . . . has voluntarily
accepted and retained the benefits of a contract which it had the power to make but
which was defective in the method of its execution and consequently invalid.”
Silver Spring Township Subdivision and Land Development Ordinance; Second
Class Township Code; Municipalities Planning Code. Section 504 (Dedication of
Improvements) of the Silver Spring Township Subdivision and Land Development
Ordinance provides as follows:
All improvements shall be deemed to be private improvements and
only for the benefit of the specific project until such time as the
same have been offered for dedication and formally accepted by
the Board of Supervisors. No responsibility of any kind with respect
to improvements shown on the Plan shall be transferred until the
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improvements have been formally accepted. . . .
Section 2316 (Acceptance of land for road purposes) of the Second Class
Township Code provides as follows:
(b) When plans of dedicated roads, streets or alleys located in
townships have been approved and recorded under this article
\[Roads, Streets, Bridges and Highways\], the board of supervisors
may by resolution accept any roads, streets or alleys as public
roads if shown in the plans as dedicated to that use and if the roads
or streets are not less than thirty-three feet in width and the alleys
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are not less than fifteen feet in width.
And under Section 2317 (Approval of plans) of the Second Class Township Code, it is
provided as follows:
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Silver Spring Township Subdivision and Land Development Ordinance of 2018, §504,
retrieved at https://www.sstwp.org/DocumentCenter/View/114/Subdivision-and-Land-
Development-Ordinance-SLDO-PDF?bidId=, April 26, 2021.
Defendant’s Preliminary Objections and Brief cite this provision as SST Code 360-19, See
Defendant’s Preliminary Objections, ¶10; Defendant’s Brief, at 4.
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53 P.S. §67316(b).
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(g) No approval of plans by the board of supervisors shall obligate
or require the township to construct, reconstruct, maintain, repair or
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grade the roads.
Finally, Section 503 (Contents of subdivision and land development ordinance) of
the Municipalities Planning Code provides as follows:
The subdivision and land development ordinance may include . . .
(3) Provisions governing the standards by which streets . . . shall be
installed as a condition precedent to final approval of plats . . . .The
standards shall insure that the streets be improved to such a condition
that the streets are passable for vehicles which are intended to use that
street: Provided, however, That no municipality shall be required to
accept such streets for public dedication until the streets meet such
additional standards and specifications as the municipality may require for
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public dedication.
And under Section 404 (Effect of official map on mapped streets, watercourses and
public grounds) of the Municipalities Planning Code it is provided as follows:
The adoption of any street . . . pursuant to this article \[Official Map\]
as part of the official map shall not, in and of itself, constitute or be
deemed to constitute the . . . acceptance of any land, nor shall it
obligate the municipality to improve or maintain any such street or
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land. . . .
The acceptance by a municipality of an offer of dedication of a street is obviously
a matter of discretion. See Hanscom v. Bitler, 883 A.2d 1111 (Pa. Cmwlth. 2005)
(mandamus action). Thus, it has been said that
\[w\]here a plan includes a dedication of streets, neither the plan
approval nor the developer’s completion of the streets obligates the
township to accept them. . . . \[A\]cceptance is a matter of discretion
within the township . . . .
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53 P.S. §67317(g).
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53 P.S. §10503(3).
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53 P.S. §10404.
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Victoria Gardens Condominium Association v. Kennett Township of Chester County, 23
A.3d 1098, 1110 n.19 (Pa. Cmwlth. 2011) (mandamus et al. action) (citations omitted);
see Hanscom, 883 A.2d at 1114.
However, municipal discretion is not without exception. “\[T\]he mere possession
of discretionary power by an administrative body does not make it wholly immune from
judicial review, . . . \[if\] there has been a manifest and flagrant abuse of discretion or a
purely arbitrary execution of the agency’s duties or functions.” Acchione v. Goodman,
277 A.2d 816, 820 (Pa. 1967) (breach of fiduciary obligation by municipality).
Discretionary actions of a municipality may be reviewed in the event of “bad faith, fraud,
capricious action or abuse of power.” See In re Petition of Borough of Freeland, 66 Pa.
D. & C.2d 179, 186 (Luzerne County 1974).
Thus, in some circumstances a municipality’s refusal to accept an offer of
dedication will not be upheld. See, e.g., Monroe Meadows Housing Partnership, LP v.
Municipal Council of the Municipality of Monroeville, 926 A.2d 548 (Pa. Cmwth. 2007)
(estoppel pursuant to agreement with developer); Myers v. Penn Township, 812 A.2d
766 (Pa. Cmwlth. 2002) (erroneous application of ordinance retroactively).
APPLICATION OF LAW TO FACTS
In the present case, a fair reading of Plaintiff’s allegations in its complaint is that
Defendant’s refusal to accept dedication of the street in question was both capricious
and in derogation of promises made by its agents, upon which Defendant justifiably
relied in rendering performance. Based upon the foregoing principles of law, including
those pertaining to unilateral and quasi-contracts, and the rule that any doubt as to
whether a demurrer should be sustained should be resolved in favor of overruling it, the
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court is of the view that a final disposition of the case in favor of Defendant at this
preliminary stage would not be appropriate.
With respect to Defendant’s challenge to the specificity of Plaintiff’s complaint,
the allegations appear to the court to be sufficient to enable Defendant to formulate a
defense, and “the parties \[can fairly be\] relegated to discovery for evidentiary details.”
Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 4 day of May, 2021, upon consideration of Defendant’s
Preliminary Objections to Plaintiff’s Complaint, filed December 28, 2020, and for the
reasons stated in the accompanying opinion, the preliminary objections are denied and
Defendant is afforded a period of twenty days from the date of this order within which to
file an answer to Plaintiff’s Complaint.
By the Court,
_______________________
Thomas A. Placey, C.P.J.
Anthony T. Lucido, Esq.
JOHNSON, DUFFIE, STEWART & WEIDNER
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Attorney for Plaintiff
Sean M. Shultz, Esq.
SAIDIS, SHULTZ & FISHER
Suite 300
100 Sterling Parkway
Mechanicsburg, PA 17050
Attorney for Defendant
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