Appeal, No. 162, April T., 1961, from order and decision of County Court of Allegheny County, No. 1705 of 1959, in case of Borough of Bridgeville v. Joseph G. Valsi. Order and decision reversed.
John Regis Vlha, with him Emil R. Pecori, for appellant.
Karl E. Weise, with him Hirsch, Truxall & Weise, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 412]
Defendant appeals from an order dismissing his exceptions to a decision of the court below, sitting without a jury, which awarded the plaintiff damages in the sum of $1,383.12, with interest from August 15, 1957, in an action on a certain contract between the parties.
The contract, dated May 17, 1952, recites that the plaintiff had constructed an eight inch sanitary sewer through a tract of land then owned by the defendant, that an assessment in the sum of $1,383.12 had been filed in the court below as a lien against the tract at No. 1800 July Term, 1951 D, and that the sewer had been constructed in such a location that the defendant "says that he is unable to connect to said sewer or use the same in connection with the development of his land".
Paragraph 1 of the agreement provides for the execution and delivery by the defendant to the plaintiff of "a Right-of-Way for the construction, and maintenance of the sanitary sewer herein described".
[ 197 Pa. Super. Page 413]
Paragraph 2 reads as follows: "The [plaintiff] agrees to satisfy of record the municipal lien at No. 1800 July Term, 1951 D, in consideration whereof the [defendant], for himself, his heirs, successors and assigns, covenants and agrees that in the event he connects to said sewer at any time in the future for the use of any part of his land, that he will pay to the said Borough of Bridgeville the amount of the assessment against said land in the amount of $1383.12, without interest, said payment to be made prior to connecting to said sewer or any use thereof by the said [defendant]."
The agreement is under seal and contains a recital that the parties intend to be mutually bound thereby.
The defendant contends that (1) he is not liable under the agreement for any connection made by his heirs, successors, or assigns, as contrasted with any connection made by him, personally, and (2) in any event no liability arises under the contract unless a connection is made directly into that portion of the sewer ...