8 A.3d 1022
Pa. Commw. Ct.2010Background
- Muths own property along SR 120 in Ridgway Township; Authority provides water service and Ordinance 59 required connection within 150 feet, with an opt-out for some residents who paid a tap fee (1990).
- In 1990, the Authority and residents who opted out were exempt from mandatory connection but not from later repeal or amendments; Ordinance 59 remained in effect with the opt-out terms.
- 1990 agreement allowed opt-outs to pay tap fee and install piping but not connect or pay monthly fees; no written exemption for future amendments.
- 2002 Authority letter notified Muths that connection was mandatory; Township argued the 1990 agreement bound by opt-out terms; Ordinance 93 (2006) repealed 59, raised mandatory hookup to 300 feet, and exempted those written exempted for good cause shown.
- March 26, 2008 notice demanded Muths connect to the public system; October 8, 2008 complaint sought vesting of private water rights and estoppel based on 18-year permissive use.
- Trial court sustained Authority's preliminary objections (demurrer to Count I and strike of amended complaint as untimely); Muths appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vested rights applicability to Muths' use | Muths relied on 1990 exemption and ongoing permissive use to avoid mandatory hookup. | Vested rights do not apply because no costly reliance or error in permit; no enforceable exemption against Ordinance 93. | Vested rights not applicable; demurrer sustained. |
| Timeliness of amending the complaint | Amendment should be liberally permitted to avoid prejudice. | Amendment filed 69 days late without good cause; sanction appropriate. | Trial court did not abuse discretion; amended complaint struck as untimely. |
| Appealability and dismissal under Rule 2188 | Delay in briefing should not defeat merits review; record sufficient. | Failure to file briefing/record within time warrants dismissal. | Appeal not dismissed; brief/record timely within extended period. |
Key Cases Cited
- Chateau Woods, Inc. v. Lower Paxton Twp., 772 A.2d 122 (Pa. Cmwlth. 2001) (vested rights where reliance on permit in error with substantial costs)
- Haney v. Sabia, 428 A.2d 1041 (Pa. Cmwlth. 1981) (courts may sanction noncompliance with procedural rules)
- Slaybaugh v. Newman, 441 A.2d 429 (Pa. Super. 1982) (late amended pleadings may be excused only when no prejudice)
- Muncy Creek Twp. Citizens Comm. v. Shipman, 573 A.2d 662 (Pa. Cmwlth. 1990) (scope of review for preliminary objections; abuse of discretion standard)