Appeal, No. 129, Jan. T., 1957, from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1955, No. 7917, in case of Penn Galvanizing Company, Inc. v. City of Philadelphia et al. Order affirmed.
Abraham Shapiro, for appellant.
James L. Stern, Deputy City Solicitor, with him David Berger, City Solicitor, and Gordon Cavanaugh and Karl I. Schofield, Assistant City Solicitors, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from the order of the Court of Common Pleas of Philadelphia which sustained the preliminary objections of the City and dismissed the plaintiff's bill in equity.
Plaintiff is the owner of two commercial properties in the City of Philadelphia, and was a user of water supplied by the City in the years prior to 1952. The water meters measuring this use did not operate properly and failed to register the water consumed at each property during parts of 1948 and 1949. This situation was not unique. A great many meters throughout the City fell out of repair during the war, and, due to shortages of material, many were not repaired until long after its conclusion. The practice of the City during that period was to remove the meters for repair, and, after their reinstallation, to estimate the water used during the period that the meters were defective on the basis of the amount subsequently consumed. This situation was largely remedied by the City after 1952 through its universal water metering program under which it adopted more stringent inspection practices and under which it replaced defective meters immediately with properly registering ones, rather than waiting until the defective meters were repaired.
On January 3, 1951 the City estimated the excess water consumed at one of plaintiff's properties for the period during which its meter was defective, and billed the plaintiff accordingly. This bill was promptly paid on January 12, 1951.
On March 31, 1952 the City's Department of Collections rendered a bill to the plaintiff for the excess
water consumed from July 26, 1948 to December 6, 1949 at the latter's other property, during which time the meter on that property was not properly registering. This bill, the plaintiff alleges, is excessive, and it has refused to make payment thereof, averring in its complaint, however, that "... it has at all times offered to pay, and is still willing to pay the amount thereof for water consumed and actually measured, if the Department of Collections will properly state the amount thereof.".
The complaint then goes on to refer to an ordinance enacted by the Council of the City of Philadelphia on October 12, 1955, the provisions of which are: "Section 1. No excess water and sewer charge shall be made on bills originally issued in 1955 in connection with water consumed for any period prior to January 1, 1952, during which the water meter was removed by the City for repairs, or during which the water meter failed to register water consumption through no fault of the owners or occupiers of the premises wherein the meter is situate; the charges for the use of City water and sewers during such period shall be limited to the minimum charges for such uses. Section 2. (a) The Revenue Commissioner is hereby authorized and directed to make refunds to persons who have paid excess water meter and sewer reset bills originally issued in 1955, and any interest or penalty thereon, for a period prior to January 1, 1952, during which period the water meter was removed by the City for repairs, or during which period the water meter failed to register water consumption through no fault of the owners or occupiers of the premises wherein the meter is situate. The approval of the Tax Review Board shall not be required with respect to such refunds. (b) Such refunds shall not be made unless a written request is filed therefor with the Department of Collections on
or before April 30, 1956, by the persons who have paid such excess water ...