49 Pa. Commw. 275 | Pa. Commw. Ct. | 1980
Opinion by
The township of Benzinger, a second class township in Elk County, filed a municipal lien against the property of Morris and Mary Coudriet, t/a St. Marys Used Car Center (Appellants) in the sum of $216.00 plus a five per cent penalty. Township then caused a writ of scire facias sur municipal lien to issue against Appellants.
In their Affidavit of Defense, Appellants contended that (1) the writ is improperly captioned because they had never been associated trading as St. Marys Used Car Center; (2). the township, as a use-plaintiff, failed to comply with Section 10 of the Penn
Appellants’ initial contention raises an objection to the improper inclusion of Mary Coudriet under the fictitious business name “St. Marys Used Car Center.” The basis of this objection is that while Appellants are husband and wife, the proprietorship is listed in the husband’s name only. Appellants fail to realize that a municipal lien proceeding is purely in rem and carries no personal liability. Provident Trust Co. v. Judicial B. & L. Assn., 112 Pa. Superior Ct. 352, 171 A. 287 (1934). Likewise, a judgment obtained in scire facias proceeding is purely in rem (“de terris”), binding only the res and carrying no personal liability. See Section 23 of the Act, 53 P.S. §7274. As no objections have been raised to the description of the res and it being clear that the owners of the res received proper notification of the proceedings, we hold that the flaw in the caption of the lien is immaterial.
Appellants next contend that they cannot be forced to pay sewer rentals since they have never tapped into the sewer system. We agree with the township that to allow individual property owners to elect not to tap into a sewer system accessible to it would circumvent the statutory purpose behind the imposition of sewer rentals and undermine the financial soundness of a municipality’s sewer system. The rental charges are utilized to meet many fixed costs incurred by the township; costs such as operation expenses, maintenance, repair, inspection and depreciation which are incurred whether or not a particular individual is tapped into the sewer system. Appellants have not presented any justification for not tapping into the sewer system which is readily accessible to them and are responsible to pay the rental fees despite the fact they have not utilized the services available to them.
Finally, Appellants assert that the township unlawfully discriminated against them by arbitrarily refusing to exonerate them from the payment of sewer rates when their facilities were not in use as is its nor
Accordingly, we
Order
And Now, this 8th day of February, 1980, the order of the Court of Common Pleas of the Fifty-Ninth Judicial District, Elk County Branch, dated August 25, 1978, is hereby affirmed.
The sewer line in question is leased to the township pursuant to an agreement under which the sewer rentals charged against the various properties served by the sewer are used to satisfy the township’s obligations under its lease from the Benzinger Township Authority, which constructed the sewer.
Act of May 16,1923, P.L. 207, as amended, 53 P.S. §7144.
Appellants additionally allege, for the first time in their brief, that the Act, insofar as it provides for the collection of a municipal claim by the filing of a municipal lien against the property of the owners, conflicts with the Due Process Clause of the 14th Amendment to the United States Constitution. Whether the statutory requirements contravene constitutional protections was not raised below and will not be considered on appeal. Pa. R.A.P. 302.