191 Pa. Super. 596 | Pa. Super. Ct. | 1960
Opinion by
The parties here seek an answer to a simple question of law: Can a sewer authority, assessing the cost of constructing a sanitary sewer according to the front foot rule, assess only that part of the frontage of a lot which abuts its sewer pipe, or can it assess the entire frontage? We agree with the court below that it can assess only that portion of the frontage which abuts the sewer.
The court below concluded that this case was ruled by Wilson v. Upper Moreland-Hatboro Authority, 183 Pa. Superior Ct. 588, 132 A. 2d 909 (1957), affirmed by the Supreme Court on the opinion of Judge Ervin, 392 Pa. 245, 140 A. 2d 450 (1958),
There is no need to repeat any part of Judge Ervin’s opinion in the Wilson case. An examination of the opinion will show that nearly all of what was said there applies here. We held there that the assessment could
The procedural problem involved here is more serious and difficult than the substantive question.
Although the availability of the Uniform Declaratory Judgments Act, supra, was broadened by the amendment to §6 by the Act of May 26, 1943, P.L. 645,
The defendant in this case was organized under the Municipal Authorities Act of May 2, 1945, P.L. 382, as amended, 53 PS §301, et seq. Section 4, 53 PS §306, of that Act provides: “B. Every Authority is hereby granted . . . the following rights. and powers: . . . (s) To charge the cost.of construction of any sewer or water main constructed by the Authority against the properties benefited, improved or accommodated thereby according to the foot front rule . . . Such charges may be assessed and collected and such liens may be enforced in the manner provided by law for the assessment and collection of charges and the enforcement of liens of the municipality in which such Authority is located: ...”
The Act of May 16, 1923, P.L. 207, as amended, 53 PS §7101 et seq., relating to municipal. claims and liens, provides a special form of remedy for this particular type of case. See said act and particularly §14 and §16, 53 PS §7182, §7184.
Neither parties raised either in the court below or here the question whether the action now before us'was properly brought under the Uniform Declaratory Judgments Act.
This case was pending and undecided in the court below when the Supreme Court and this Court disposed of an identical question, involving one of the same parties, under the Uniform Declaratory Judgments Act, supra. (Wilson v. Upper Moreland-Hatboro Authority, supra.) Although the failure to question the procedural matter in the Wilson case does not prevent our raising it in this case, nevertheless, were we to refuse to decide this case on its merits, the inconsistency
We are reminded here of what was said by Judge B rah am and adopted by the Supreme Court in New Castle School District v. Travers, 353 Pa. 261, 264, 265, 44 A. 2d 665 (1945) : “One cause contributing to the diminution of public confidence in, and the diversion of business from, the courts of common pleas of the Commonwealth has been the courts’ worship of technical points of procedure . . . Thus the legislature [by the Uniform Declaratory Judgments Act] has merely directed the courts to do what we should have known enough to do without the direction,—take the cause of parties who are all before the court with a controlling question of law which is apt and ripe for decision and decide the question . . . They may be telling us to forget some of our technical learning; they are certainly telling us to get on with our business of deciding the peoples’ questions for them.”
We recognize that confusion and disorder would result were rules of procedure consistently ignored, but inasmuch as there was no objection raised by the parties to the procedure in this case, and inasmuch as both appellate courts so recently decided on its merits a similar question brought under the Uniform Declaratory Judgments Act, supra, we shall not pass upon the question of whether this action was properly brought under that act but shall dispose of the case on its merits. Neither this case nor our opinion in the Wilson case should be taken as authority for the right to bring this or any similar action under the Uniform Declaratory Judgments Act.
Judgment affirmed.
The ease now before us is the third involving the assessments made by the same authority. See also Upper Moreland-Hathoro Joint Sewer Authority v. Pearson, 190 Pa. Superior Ct. 107, 152 A. 2d 774 (1959).
Recent Supreme Court opinions, culminating with Bell Appeal, 396 Pa. 592, 152 A. 2d 731 (1959), have led us to scrutinize carefully the jurisdiction of this Court to review matters brought before us. It appears to us that §7 of the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, 12 PS §837, is the statutory authority under which appeals may be taken to the Superior Court of orders made under that act which involve an amount no greater than $5000. The Act of May 16, 1923, P.L. 207, §39, 53 PS §7193, relating to municipal claims and liens, provides that appeals may be taken “to the Supreme or Superior Court as in other cases.” The amount involved in this appeal is less than $5000.
See Guerra v. Galatie, 185 Pa. Superior Ct. 385, 137 A. 2d 866 (1958) ; Phila. Manufacturers Mutual Fire Insurance Co. v. Rose, 364 Pa. 15, 70 A. 2d 316 (1950).