8 Pa. Commw. 190 | Pa. Commw. Ct. | 1973
Opinion by
Trux Realty Company, Inc. appeals from an order of the Court of Common Pleas of Butler County dismissing its petition to strike a judgment entered against it in that court.
It is necessary to state carefully the facts from which the result here naturally flows. The Municipal Sewer and Water Authority of Cranberry Township was created by Cranberry Township, Butler County, a Second Class Township, pursuant to the Municipality Authorities Act of 1945, Act of May 2, 1945, P. L. 382, as amended, 53 P.S. §301 et seq. It embarked on a program to sewer an area called the “Industrial Park Area” which it completed sometime prior to December 1967. It was necessary to acquire rights-of-way through seven private properties, a portion of one of which Trux subsequently acquired. Three of the required rights-of-way, including that through Trux’s predecessor, were obtained by grant, the remaining four were condemned by declaration of taking pursuant to the Eminent Domain Code, Act of June 22, 1964, P. L. 84, 26 P.S. §1-101 et seq. The Authority determined that the costs of the sewer should be assessed by the benefits method.
The Authority filed a separate declaration of taking with respect to each of the four properties through which rights-of-way were required to be condemned, each of which proceedings was given a term and number. The Authority then filed a petition for the appointment of viewers “to determine the assessable cost of construction of the said sewers including any damages ... to balance damages against the benefits and to assess or award the excess of one over the other against the properties benefited.” The seven properties
The jury’s report assessed benefits against 21 properties, including that of Trux’s predecessor. The court below directed the jury’s report to be filed and ordered its absolute confirmation unless exceptions should be filed within thirty days. Several of the property owners, not including Trux’s predecessor, as well as the Authority filed what they denominate “Appeals” from the jury of view report.
At this point, it is necessary to advert to the provisions of The Second Class Township Code, Act of May 1, 1933, P. L. 103, reenacted by the Act of July 10, 1947, P. L. 1481, 53 P.S. §65101 et seq.
We first note that no municipal claim for the benefits conferred upon any property in the project was ever filed under the Act of May 16, 1923, P. L. 207, as amended, 53 P.S. §7101 et seq. Section 9 of that Act, 53 P.S. §7113, provides that in order for the lien of a municipal claim to attach from the time the improvement is completed,
The Authority here could have obtained a lien for benefits against the property now owned by Trux by following the procedures of The Second Class Township Code to the point of final confirmation of the jury of view’s report and by filing within six months after such confirmation a claim as allowed by the Act of May 16, 1923. Our disapproval of the course here followed has foundation firmer than that of mere insistence upon technical statutory procedures. Section 9 of the Act of May 16, 1923, 53 P.S. §7143, contains the following language which would have been of benefit to Trux under proper procedure: “In case the real estate benefited by the improvement is sold before the municipal claim is filed, the date of completion in said [engineer’s] certificate shall determine the liability for the payment of the claim as between buyer and seller. ...”
We are not called upon to decide whether a lien might not yet be obtained by the Authority pursuant to the proper procedures here indicated. See In Re: Grading, Paving and Curbing Evergreen Road etc., City of Pittsburgh, 114 Pa. Superior Ct. 499, 174 A. 804 (1934), and Wilson v. Upper Moreland-Hatboro Joint Sewer Authority, 183 Pa. Superior Ct. 588, 132 A. 2d 909 (1957).
The procedure for assessing by the benefit method in the case of properties not condemned is that provided by the statute relating to the municipality which created the Authority. Sections 4(B) (r) and 11 of the Municipality Authorities Act of 1945, 53 P.S. §§306 (B) (r) and 314. Whitemarsh Twp. Authority v. Elwert, 413 Pa. 329, 196 A. 2d 843 (1964).
The Act of September 23, 1959, P. L. 955, as amended, 53 P.S. §7432, validates claims filed late, without, however, reattachment of the lien against real estate transferred before such late filing.
As we have noted, there were condemnations of rights-of-way over only four of the 21 properties found to be benefited.