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May 8, 1959


Appeal, No. 83, Jan. T., 1959, from decree of Court of Common Pleas of Schuylkill County, Nov. T., 1957, No. 7, in case of Edwin Becker v. Borough of Schuylkill Haven et al. Decree reversed.


Ralph M. Bashore, with him W. J. Krencewicz, for appellant.

H. G. Stutzman, with him Stutzman, Lewis and Sidoriak, for appellees.

Before Jones, C.j., Musmanno, Jones, Cohen and Mcbride, JJ.

Author: Cohen

[ 395 Pa. Page 573]


Edwin Becker filed a complaint in equity alleging that without cause the defendant-borough discontinued supplying water to his premises. He sought a mandatory injunction for restoration of the water connection. Certain agreements and stipulations as to fact were entered into so that the water service was restored pending the final disposition of the case. The court below, with which the court en banc agreed, dismissed the complaint in equity and entered judgment in favor of the defendants.

The defendant borough, while admitting that the water service had originally been disconnected, argues that the appellant failed to pay sewer charges, and under the authority of the Act of April 14, 1949, P.L. 482, as amended by the Act of September 7, 1955, P.L. 576, 53 P.S. ยง 2261*fn1 and Ordinance 394*fn2 of the Borough

[ 395 Pa. Page 574]

    of Schuylkill Haven, the borough was authorized to discontinue the water service upon due notice.

While the borough owns and operates the water distribution system, the borough operates but does not own the sewer system. The sewer system and sewage treatment plant is owned by the Municipal Authority of the Borough of Schuylkill Haven. It issued revenue bonds to provide for the sewer's acquisition and construction, then leased the facility to the borough.

Appellant maintains that the borough has no power under the Act of 1955 to shut off the water since the act only envisions situations where an owner of property has failed to pay a sewer bill to a municipal authority and then the right to shut off or discontinue the water accrues when the municipal authority has assigned its claim for sewer service to the borough.

The public policy enunciated by the legislature in the preamble of the act reveals that in order to enable municipal authorities to acquire, construct and operate sewage disposal and sewage treatment works, revenues must be assured to the authority. Thus, prompt payment of rentals for charges can only be assured by exercising a right of shutting off the water for the nonpayment of the sewage rental. Since many water utilities are operated by municipalities, the act, in order to make the collection of the sewer rentals more secure for authorities, authorized the water utility, at the request and direction of the authority or of the city, borough or township to which the authority shall have assigned its claim, to shut off the supply of water until all overdue rentals are paid.

Unfortunately for the borough, the drafters of the legislation only contemplated situations where the sewer services were operated by an authority. No statutory provisions were made for the situation presented

[ 395 Pa. Page 575]

    in this appeal, i.e., a borough operating a sewer service. For these reasons, we are of the opinion that the Act of 1955 is inapplicable to the situation at bar.

Despite this, the borough still attempts to justify its action by urging upon us the validity of Ordinance 394; citing cases from allied jurisdictions, notably Michelson v. City of Grand Island, 154 Neb. 654, 48 N.W.2d 769 (1951); State et al. v. City of Miami, 157 Fla. 726, 27 So.2d 118 (1946); and Sharp v. Hall, 198 Okla. 678, 181 P.2d 972 (1947) which permit the discontinuance of water service for nonpayment of sewer charges. Nevertheless, our review of those cases reveal general enabling legislation which authorizes the municipality to enact "shut off" ordinances. Our borough code,*fn3 however, does not provide for this method of collecting arrearages. On the contrary, the code section is clearly mandatory as to the method to be observed for sewer rental collection,*fn4 only by the filing of liens according to the procedures set forth for municipal liens.*fn5

In view of the mandatory language of the code we are precluded from supplying the borough with an additional method for the collection of unpaid sewer charges. Since both the Act of 1955 and the ordinance of the borough are insufficient to provide for the "shutoff",

[ 395 Pa. Page 576]

    we are unable to fill the void apparently created by legislative oversight.


Decree reversed, at appellees' cost.

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