Appeal, No. 200, Oct. T., 1959, from judgment of Court of Common Pleas of Montgomery County, Nov. T., 1957, No. 212, in case of Upper Moreland-Hatboro Joint Sewer Authority v. Lewis Pearson. Judgment affirmed.
Samuel H. High, Jr., for appellant.
Thomas M. Garrity, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 190 Pa. Super. Page 109]
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 Moreland Township is such as to prevent defendant from erecting a house fronting on Allison Road. Before December 15, 1953, the Township ofUpper 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,
[ 190 Pa. Super. Page 110]
but assessed 25.01 feet, at the aforesaid cost per foot, making his total assessment in the sum of $245.24. The sewer in Allison Road is of no special benefit to defendant's property, and defendant has not connected his house therewith.
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 this 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 his property, plaintiff is entitled to judgment against him 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 zoning ordinance prohibits subdividing the lot or erecting more than one dwelling thereon.
In § 4, subsection B(s), 53 PS § 306B(s), of the Municipality 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 ...