James A. Wright, Pittsburgh, for appellants.
J. B. McAdoo, Solicitor of Munhall Borough, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.
[ 174 Pa. Super. Page 562]
The plaintiffs, owners of certain lots in the Borough of Munhall, joined in a petition to appeal from the Board of Viewers to the Court of Common Pleas demanding a trial by jury on the grounds that the assessments of benefits were excessive.
[ 174 Pa. Super. Page 563]
The Borough in its answer denied that the property owners are entitled to appeal and trial by jury basing its position on an agreement dated March 27, 1950, between A. M. Rearick, a prior owner, and the Borough of Munhall, which reads as follows: 'Now This Agreement Witnesseth that the parties of the first part hereby waive any and all claims for damages against the party of the second part, which they now have or might hereafter have by reason of the grades for sanitary sewers and street profile elevations as submitted to and adopted by Council and as more fully set forth in this Agreement. The waiver of damages to extend to their successors, heirs and assigns in title of the parties of the first part.'
A petition to amend was then filed which set forth that A. M. Rearick, one of the plaintiffs, is in the business of developing lot plans, that each of the parties plaintiffs purchased a lot and house constructed by him free and clear of all liens and encumbrances, that the Borough of Munhall on January 18, 1952, and prior to the sale of each of the said properties passed an ordinance providing for the construction of a public sanitary sewer and for the assessment of special benefits against abutting owners. Upon petition to strike off appeal and answer thereto the lower court dismissed the plaintiff's appeal and confirmed the viewers' report absolutely. From that order we have the present appeal.
The Borough of Munhall originally filed the petition for the appointment of viewers asking that benefits be assessed against the property owners in the manner and subject to the provisions contained in the Act of July 10, 1947, P.L. 1621, § 43, 53 P.S. §§ 13486 and 13487. On January 16, 1953, the viewers after ascertaining the costs, damages and expenses assessed benefits against 163 properties including the properties of
[ 174 Pa. Super. Page 564]
the plaintiffs. The schedule of the viewers shows that the lowest benefit assessment is $270.84 and the highest $474.81.
Section 43 of the Act provides as follows: 'Within thirty days after any report of viewers is filed in court of common pleas, any party whose land or property is taken, injured, or destroyed, or against whom benefits are assessed, may appeal to the court of common pleas and demand a trial by jury. Several parties may unite in a single appeal, and where the grounds of appeal are similar the court may hear such appeals as one proceeding; but each party shall, in any event, be entitled to demand a separate trial by jury. Where an appeal is so taken as a portion of the report, the portion not appealed from shall be confirmed absolutely, at the expiration of thirty days after the report is filed in court. As amended 1947, July 10, P. L. 1621, § 43.' The plaintiffs contend that their right of appeal is based ...