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STOUTENBURGH v. UPPER MORELAND-HATBORO JOINT SEWER AUTHORITY (03/24/60)

THE SUPERIOR COURT OF PENNSYLVANIA


March 24, 1960

STOUTENBURGH
v.
UPPER MORELAND-HATBORO JOINT SEWER AUTHORITY, APPELLANT.

Appeal, No. 317, Oct. T., 1959, from judgment of Court of Common Pleas of Montgomery County, June T., 1956, No. 463, in case of Robert S. Stoutenburgh et al. v. Upper Moreland-Hatboro Joint Sewer Authority. Judgment affirmed.

COUNSEL

Samuel H. High, Jr., with him High, Swartz, Childs & Roberts, for appellant.

Conrad G. Moffett, for appellees.

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

Author: Woodside

[ 191 Pa. Super. Page 597]

OPINION BY WOODSIDE, J.

The parties here seek an answer to a simple question of law: Can a sewer authority, assessing the cost of constructing a sanitary sewer according to the front foot rule, assess only that part of the frontage of a lot which abuts its sewer pipe, or can it assess the entire frontage? We agree with the court below that it can assess only that portion of the frontage which abuts the sewer.

[ 191 Pa. Super. Page 598]

The plaintiffs, Robert S. Stoutenburgh and wife, own a lot with a frontage of 75 feet on Montgomery Avenue in Hatboro. The defendant, Upper Moreland- Hatboro Joint Sewer Authority, laid a sewer in the bed of Montgomery Avenue abutting the plaintiffs' property for 11.6 feet, but assessed the premises for 75 feet. The Stoutenburghs filed a petition in the Court of Common Pleas of Montgomery County for a declaratory judgment to invalidate the assessment beyond 11.6 feet.

The court below concluded that this case was ruled by Wilson v. Upper Moreland-Hatboro Authority, 183 Pa. Superior Ct. 588, 132 A.2d 909 (1957), affirmed by the Supreme Court on the opinion of Judge ERVIN, 392 Pa. 245, 140 A.2d 450 (1958),*fn1 and declared the assessment valid as to 11.6 feet and invalid as to any additional frontage. In the Wilson case the defendant's sewer pipe was brought only to one corner of the plaintiffs' lot and not constructed in front of it; in this case the pipe was in front of the lot for 11.6 of the 75 feet. Otherwise, the cases are the same. Although the facts are not identical, the principles applied and the reasoning followed in the Wilson case pertain with equal force to this case. Judge FORREST demonstrated this in his opinion for the court below. The argument of the authority made to the appellate courts in this case followed closely the argument made and rejected in that case.

There is no need to repeat any part of Judge ERVIN'S opinion in the Wilson case. An examination of the opinion will show that nearly all of what was said there applies here. We held there that the assessment could

[ 191 Pa. Super. Page 599]

    not be made against the frontage where the authority had not laid any pipe.

The procedural problem involved here is more serious and difficult than the substantive question.*fn2 This case involves a declaratory judgment. Wilson v. Upper Moreland-Hatboro Authority, supra, also involved a declaratory judgment and was decided by us in 1957 and affirmed by the Supreme Court in 1958 without any reference to the propriety of the procedure. When the case now before us was argued, we raised the procedural question, and at our request counsel prepared briefs and argued whether the issue presented here could properly be determined under the Uniform Declaratory Judgments Act of June 18, 1923, P.L. 840, as amended, 12 PS § 831 et seq.

Although the availability of the Uniform Declaratory Judgments Act, supra, was broadened by the amendment to § 6 by the Act of May 26, 1943, P.L. 645,*fn3 the act still requires that "Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed." Section 6, Uniform Declaratory Judgments Act, supra, 12 PS § 836. See Castle Shannon Coal Corp. v. Upper

[ 191 Pa. Super. Page 600]

    would necessarily lead the parties, the bar and the public to justifiable criticism of the appellate courts.

We are reminded here of what was said by Judge BRAHAM and adopted by the Supreme Court in New Castle School District v. Travers, 353 Pa. 261, 264, 265, 44 A.2d 665 (1945): "One cause contributing to the diminution of public confidence in, and the diversion of business from, the courts of common pleas of the Commonwealth has been the courts' worship of technical points of procedure... Thus the legislature [by the Uniform Declaratory Judgments Act] has merely directed the courts to do what we should have known enough to do without the direction, - take the cause of parties who are all before the court with a controlling question of law which is apt and ripe for decision and decide the question... They may be telling us to forget some of our technical learning; they are certainly telling us to get on with our business of deciding the peoples' questions for them."

We recognize that confusion and disorder would result were rules of procedure consistently ignored, but inasmuch as there was no objection raised by the parties to the procedure in this case, and inasmuch as both appellate courts so recently decided on its merits a similar question brought under the Uniform Declaratory Judgments Act, supra, we shall not pass upon the question of whether this action was properly brought under that act but shall dispose of the case on its merits. Neither this case nor our opinion in the Wilson case should be taken as authority for the right to bring this or any similar action under the Uniform Declaratory Judgments Act.

WRIGHT, J., concurs in the result.

Disposition

Judgment affirmed.


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