190 Pa. Super. 107 | Pa. Super. Ct. | 1959
Opinion by
This is an action of scire facias sur municipal lien whereby the appellant seeks to enforce a lien arising from the installation of a sanitary sewer. The parties agreed upon the facts by a case stated, a summary of which is as follows: Defendant, Lewis Pearson, owns a lot and dwelling house erected thereon, known as Lot No. 106 on plan of Ferguson’s Willow Grove Tract, Upper Moreland Township, a first class township. The lot has a frontage of 50 feet on Summit Avenue and extends of that approximate width to Allison Road where the frontage is 50.03 feet. The total depth of the lot is approximately 175 feet. The house fronts on Summit Avenue. The zoning ordinance of Upper More-land Township is such as to prevent defendant from erecting a house fronting on Allison Road. Before December 15, 1953, the Township of Upper Moreland caused a sewer to be constructed in the bed of Summit Avenue, along the front of defendant’s property. Defendant connected his house with the sewer line in Summit Avenue, and paid the assessment for the construction of the sewer.
The plaintiff, Upper Moreland-Hatboro Joint Sewer Authority, was incorporated on December 15, 1953, pursuant to the Municipality Authorities Act of May 2, 1945, P. L. 382, as amended, 53 PS §301 et seq. In 1955 the sewer was constructed in the bed of Allison Road. The sewer extends for 25 feet in front of defendant’s property. The cost per total foot frontage of the properties benefited, improved or accommodated by the sewer was |9.8058. The Authority exempted 25.02 feet of the defendant’s frontage from assessment,
The plaintiff filed a municipal lien for the aforesaid assessment as of No. 242 June Term 1956 for the sum of $245.24, plus penalty of five per cent or $12.26. Plaintiff then caused tMs sci. fa. sur municipal claim to be filed and defendant filed an affidavit of defense. Defendant has stipulated that if the lien claim is valid and was properly assessed against Ms property, plaintiff is entitled to judgment against Mm in the sum of $245.24 with interest from March 1, 1956 and with a penalty of five per cent for nonpayment.
The sole question is whether the appellant may assess the cost of constructing sewers abutting the rear of appellee’s lot, against the appellee’s property, where (1) the property is fully and adequately served by a municipal sewer abutting the front of appellee’s property; (2) appellee has been assessed for (on a foot front basis) and has paid the cost of constructing the sewer along the front of his property and (3) the municipal zomng ordinance prohibits subdividing the lot or erecting more than one dwelling thereon.
In §4, subsection B(s), 53 PS §308B(s), of the MuMcipality Authorities Act, the authority is granted the right and power “To charge the cost of construction of any sewer constructed by the Authority against the properties benefited, improved or accommodated thereby according to the foot front rule.” The appellant contends that its lien may be sustained even though the property was not benefited, improved or accommodated by the sewer. The foot front method of apportionment is but a practical substitute for an actual assessment by a jury of view. It is not a princi
The appellant relies greatly upon Michener v. Phila., 118 Pa. 535, 12 A. 174. It is true that our Supreme Court in that case approved the collection of a sewer constructed in a third street when the owner had already paid for the construction of sewers in two other streets abutting his property. The Michener case was followed and relied upon in the following cases: Harrisburg v. McCormick, 129 Pa. 213, 18 A. 126; Phila. v. P. & R. R. Co., 1 Pa. Superior Ct. 236; Phila. v. Snedaker, 69 Pa. Superior Ct. 118; Diehl v. Butler Twp., 4 Pa. D. & C. 2d 734. The statute which was involved in the Michener case was the Act of March 27, 1865, P. L. 791, §1, which provided “That the city of Philadelphia shall have power to construct sewers . . . in the streets of said city, and to charge the sum of seventy-five cents for lineal foot, against each front . . . .” It should also be noted that in this act the legislature provided for an assessment against owners of a flat charge per lineal foot of frontage without mention of benefits accruing to the owners from the construction of the sewers. In the instant case the
To adopt the appellant’s contention would render meaningless the language “against the properties benefited, improved or accommodated thereby” in the Municipality Authorities Act of May 2, 1945. Every law shall be construed, if possible, to give effect to all its provisions: Statutory Construction Act of May 28, 1937, P. L. 1019, §51, 46 PS §551.
Where a property is first benefited by a municipal improvement it is assessable therefor, but where it has once enjoyed the particular improvement, the property is not assessable for a second improvement of the same character: Phila. v. Meighan, 27 Pa. Superior Ct. 160; Vendetti Appeal, 181 Pa. Superior Ct. 214, 124 A. 2d 448.
Judgment affirmed.