Appeal, No. 46, Oct. T., 1957, from judgment of Court of Common Pleas Montgomery County, April T., 1956, No. 151, in case of Norman M. Wilson et ux. v. Upper Moreland-Hatboro Joint Sewer Authority. Judgment reversed.
Conrad G. Moffett, for appellants.
Edward B. Duffy, with him Samuel H. High, Jr., for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 183 Pa. Super. Page 589]
In this appeal the sole question is whether a sewer authority may assess a property owner for his whole lot frontage under the foot front rule where the sewer pipe is brought only to one corner of the lot and is not constructed in front of the same. Appellee was incorporated on December 15, 1953 upon the application of the Board of Commissioners of Upper Moreland Township and the Borough Council of the Borough
[ 183 Pa. Super. Page 590]
of Hatboro under and pursuant to the Act of May 2, 1945, P.L. 382, as amended, 53 PS § 301 et seq.*fn1 Appellants, husband and wife, are the owners of a piece of ground with a frontage of 242.63 feet facing on Old York Road in the Borough of Hatboro, upon which they have their residence. In constructing the sewer in the bed of Old York Road, appellee constructed the sewer main to a point several feet south of appellants' lot and from that point constructed a lateral to the corner of appellants' property. The appellants constructed a further lateral from that point diagonally across their land to their residence at a cost of $341.50, which sum was in excess of the amount they would have had to pay had the sewer been laid in Old York Road in front of their property. Appellants have actually used this sewer since its construction. The cost of the sewer per front foot was determined by dividing the sum of $3,033,048.12 (the actual cost having been higher than that) by the total number of feet of frontage of properties benefited, improved or accommodated by the sewers, thus establishing the sum of $9.8058 per foot. Plaintiffs' full frontage of 242.63 feet was included in the total frontage and their property was assessed for the total sum of $2,379.18.
The lower court in a declaratory judgment held that the assessment was valid and enforceable against appellants' property. With this conclusion we are constrained to differ.
As far as we can ascertain, the appellate courts of Pennsylvania have never interpreted the foot front rule in such manner as to permit the assessment of property frontage which does not actually abut on the line of the improvement. In Scranton v. Beckett's Estate, 17 Pa. Superior Ct. 296, 300, we said: "The property
[ 183 Pa. Super. Page 591]
of the defendant cannot be assessed for a greater portion of the cost of this sewer than its frontage upon the improvement bears to the total frontage of the lots of private owners thereon, if the assessment is made according to the foot-front rule." In Borough of Berwick v. Smethers, 105 Pa. Superior Ct. 40, 42, 160 A. 148, we said, in defining the foot front rule: "The assessment is confined to the actual frontage on the line of improvement." In Nether Providence Twp. Sewer Dist. Assessment Case, 143 Pa. Superior Ct. 286, 290, 18 A.2d 128, we said: "It is a prerequisite to assessments of benefits that the property to be charged therefor must abut on the sewer." In Spring Garden Twp. v. Logan, 149 Pa. Superior Ct. 580, 584, 585, 27 A.2d 419, we said: "Local assessments can only be made for improvements which confer peculiar local benefits upon property which adjoin the improvement. In justifying any assessment for benefits it must be confined to the particular properties which do in fact abut directly upon the line of the improvement. Morewood Ave. Chambers's Appeal, 159 Pa. 20, 28 A. 123; Cooper v. Bellevue Borough, 51 Pa. Superior Ct. 597. Unless the front-foot rule is so applied, reflecting an assessment according to the benefits conferred, it exceeds the legislative power of taxation. Washington Ave., 69 Pa. 352." In Witman v. Reading City, 169 Pa. 375, 391, 32 A. 576, it was said: "It is held in Re Park Avenue Sewer, opinion filed herewith, that no properties can be assessed for the cost of a sewer, except ...