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NORTH EAST BOROUGH APPEAL. (03/24/60)

March 24, 1960

NORTH EAST BOROUGH APPEAL.


Appeals, Nos. 40 and 41, April T., 1960, from judgments of Court of Common Pleas of Erie County, Feb. T., 1956, Nos. 147 and 338, in case of The Borough of North East v. A Piece of Land fronting on the west side of South Lake Street, formerly Pearl Street et al. Judgments affirmed; reargument refused April 11, 1960.

COUNSEL

James P. Bryan, with him Bryan, Joslin and Bryan, for appellant.

William W. Knox, with him Knox, Weber, Pearson & McLaughlin, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 191 Pa. Super. Page 534]

OPINION BY RHODES, P.J.

This is a proceeding on a scire facias sur municipal lien for sewer rentals.*fn1 The Borough of North East, Erie County, appealed from orders of the Court of Common Pleas of Erie County entering judgments in its favor in amounts substantially less than the original claims.

The Welch Grape Juice Company, Inc., appellee, operates an industrial plant in the Borough of North East for the processing of fruits. In 1934 the borough constructed an 8-inch sanitary sewer line connecting the Welch plant with the borough sewer system. This sewer line handles only the effluent from the rest rooms, the cafeteria kitchen, showers, and drinking facilities. Industrial waste, which the borough has refused to permit to be discharged into its sewer system, is separately disposed of by Welch at its own expense in its own industrial waste treatment plant or by discharge directly into a creek.

However, other industrial plants in the borough engaged in processing similar to Welch are permitted to discharge their industrial waste into the borough sewer system.

Two years after the construction of the sanitary sewer line, the borough passed an ordinance imposing an annual rental or charge for the use of its sewer system. The ordinance provided that the total annual

[ 191 Pa. Super. Page 535]

    sewer rental should be equal to the total operating costs and should be "apportioned equitably" among the various users of the sewers in proportion to the amount of water purchased from the borough water department. It was then determined that the sewer rental be fixed at 20 per cent of the water charge.

Welch purchases a considerable amount of water from the borough which it receives from two lines, each of which has a meter. One of these lines supplies the fire protection system and the other line supplies water for all other uses in the plant. Approximately 95 per cent of the water was determined by the court below to be used for the processing of fruits and ultimately discharged into Welch's own treatment basin or directly to a creek. Approximately 5 per cent was determined to be that amount which was used for sanitary purposes and ultimately discharged into the borough sewer system. The borough charged Welch a sewer rental on the basis of the total water consumed or furnished to the plant regardless of its use. Welch apparently paid the charges through 1947. In 1948 and thereafter Welch protested the charge and the inequity of the industrial waste situation; it refused to pay sewer rental calculated at the total amount of water consumed in the plant. On January 9, 1951, the borough filed a municipal lien in the amount of $7,133, which consisted of the unpaid sewer rentals from January 1, 1948, to December 31, 1950; and, on December 11, 1953, it filed another lien in the amount of $10,584, comprised of the unpaid sewer rentals from January 1, 1951, to November 1, 1953. On December ...


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