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HYAM v. UPPER MONTGOMERY JOINT AUTHORITY. (04/26/60)

April 26, 1960

HYAM
v.
UPPER MONTGOMERY JOINT AUTHORITY.



Original jurisdiction, No. 46, Miscellaneous Docket No. 12, in case of George Hyam et al. v. Upper Montgomery Joint Authority et al. Preliminary objections sustained and complaint dismissed; reargument refused May 26, 1960

COUNSEL

Victor J. Roberts, and High, Swartz, Childs & Roberts, for plaintiffs.

Raymond Pearlstine, with him C. Edmund Wells, Williard C. Hetzel, and Wisler, Pearlstine, Talone & Gerber, and Rhoads, Sinon & Reader, for defendants.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 399 Pa. Page 447]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

On March 21, 1960, thirteen owners of realty in the Boroughs of East Greenville, Pennsburg and Red Hill, Montgomery County, instituted an equity action in the Court of Common Pleas of Montgomery County against the aforesaid Boroughs and the Upper Montgomery Joint Authority*fn1 to restrain them, jointly and severally, from proceeding with a contemplated construction and financing of a sewage collection system, a sewage treatment plant and other related sewer facilities "in and

[ 399 Pa. Page 448]

    adjacent to and for rendering service in and for" the said Boroughs.

On March 31, 1960 the Authority and three Boroughs filed preliminary objections in the nature of a demurrer to the property owners' complaint.

On the same date the Authority and three Boroughs filed a petition in this Court requesting that we take original jurisdiction of the proceeding. Upon answer being filed to that petition, on April 4, 1960, in view of the importance of the question involved, we directed the issuance of a special certiorari to the Court of Common Pleas of Montgomery County removing therefrom the record and all papers in the proceedings to this Court "for consideration and action thereon as if said case were [before this Court] on original jurisdiction".*fn2 Such is the present posture of this litigation.

The instant matter is presented upon the pleadings, i.e., the complaint and the preliminary objections thereto in the nature of a demurrer. In passing upon the validity of these preliminary objections certain well established principles are applicable: (1) preliminary objections admit as true only such facts as are well pleaded, material and relevant and only such inferences

[ 399 Pa. Page 449]

    as are reasonably deducible from such facts: Adams v. Speckman, 385 Pa. 308, 122 A.2d 685; Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Byers v. Ward, 368 Pa. 416, 84 A.2d 307; (2) preliminary objections admit neither conclusions of law nor inferences unwarranted by the admitted facts nor argumentative allegations nor expressions of opinion: Adams v. Speckman, supra; Detweiler v. Hatfield Borough School District, 376 Pa. 555, 559, 104 A.2d 110; Byers v. Ward, supra; Kaufmann v. Kaufmann, 222 Pa. 58, 70 A. 956; (3) if to sustain the preliminary objections of a defendant will result in a denial of a plaintiff's claim or a dismissal of plaintiff's suit, such preliminary objections will be sustained only in those cases which are clear and free from any doubt: Adams v. Speckman, supra; Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262; Davis v. Investment Land Co., 296 Pa. 449, 146 A. 119.

The complaint of the realty owners contains 18 paragraphs. Paragraphs 1 to 5, inclusive, describe the plaintiff property owners and the corporate defendants. Paragraph 6 avers that the three Boroughs on March 7, 1960, by ordinance simultaneously adopted, approved an agreement entered into on March 3, 1960 by the three Boroughs with the Authority for the construction of a sanitary sewage collection system, a sewage treatment plant and other related sewer facilities in said Boroughs. Under this agreement the Authority was to effect the construction of this project and the three Boroughs were to ensure that abutting property owners would connect with the sewer system and would grant certain easements and rights of way to the Authority. ...


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