Appeal, No. 167, Oct. T., 1962, from order of Court of Common Pleas of Blair County, June T., 1961, No. 252, in case of Lakemont Civic Association, Inc. v. Central Blair County Sanitary Authority et al. Order affirmed.
T. Dean Lower, for appellant.
Edward L. Springer, with him Harold E. March, Louis M. Tarasi, Jr., and Burgwin, Ruffin, Perry & Pohl, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 199 Pa. Super. Page 126]
Plaintiff filed a complaint on September 9, 1961, and an amended complaint on October 6, 1961 (hereinafter called "complaint"), in the Court of Common Pleas of Blair County, seeking to prevent the defendant, Central Blair County Sanitary Authority, from accepting a newly constructed sewer system from the contractor until wet weather tests proved the system met the contract requirements. On January 8, 1960, the authority signed a contract with New Enterprise Stone and Lime Company, Inc., providing for the construction of a system that would collect sewage and transmit it to the system of Hollidaysburg Sewer Authority for disposal. On September 12, 1961, or three days after the filing of the complaint, defendant authority accepted the sewer system but did not put it into operation. Defendant filed preliminary objections to the complaint on September 26, 1961, and to the amended complaint on October 26, 1961. Plaintiff alleged that water seepage and infiltration from outside the system during wet weather would exceed substantially that allowable under the contract; that the acceptance without proper tests deprived the authority of the benefit of the contractor's performance bond; and that such a acceptance was an abuse of discretion. The court was requested to cancel acceptance of the sewer system until satisfactory wet weather tests and inspection proved the requirements of the contract
[ 199 Pa. Super. Page 127]
had been met. The complaint further stated that "plaintiff ... questions the adequacy, safety and reasonableness of the Defendant Authority's services in finally accepting the said sewer system from the Contractor before the said sewer system conclusively met the infiltration and seepage requirements of the contract," and alleged that the court of common pleas had jurisdiction under section 4 of the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended by the Act of October 7, 1955, P.L. 671, 53 PS § 306 B(h), giving the court jurisdiction over "rates and services" of municipal authorities.
Defendants's preliminary objections set forth, inter alia, that the Municipality Authorities Act of 1945, as amended, 53 PS § 306B(h), gave the court jurisdiction only over "rates and services," whereas, "in this case, the Plaintiffs are trying to question the services of the Defendant before they have been put into effect." After argument the court below dismissed the complaint on the ground that it did not state a justiciable cause of action, and that the facts averred in the complaint did not, in any event, show an abuse of discretion upon the part of the defendant authority in accepting the sewer system from the contractor.
The contentions of appellant on its appeal are (1) that the court of common pleas had jurisdiction to determine whether or not the defendant authority provided adequate, safe, and reasonable services to its citizens in accepting from the contractor the sewer system in controversy; (2) that the court below acted improperly in dismissing the complaint on the grounds that it did not plead facts sufficient to constitute an abuse of discretion on the part of the defendant authority.
Section 4B(h) of the Municipality Authorities Act of 1945, as amended by the Act of October 7, 1955, P.L. 671, 53 PS § ...