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SIMON APPEAL. (10/05/62)

October 5, 1962

SIMON APPEAL.


Appeal, No. 18, March T., 1962, from order of Court of Common Pleas of Allegheny County, Jan. T., 1960, No. 3785, in re application of Municipal Authority of Township of Upper St. Clair for appointment of viewers. Order affirmed.

COUNSEL

Kenneth P. Simon, for appellant.

C. Francis Fischer, and Brenlove & Fischer, for appellee.

Joseph P. Flanagan, Jr., Fugh A. A. Sargent, Oscar M. Hansen, Michael B. Wray, William H. Markus, Anderson page, Michael L. Strong, Caspar W. B. Townsend, Jr., and Ballard, Spahr, Andrews & Ingersoll, and Morgan, Lewis & Bockius, and Saul, Ewing, Remick & Saul, and Townsend, Elliott & Munson, for interested persons, under Rule 65.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: O'brien

[ 408 Pa. Page 465]

OPINION BY MR. JUSTICE O'BRIEN

The Municipal Authority of the Township of Upper St. Clair, Allegheny County, constructed a sanitary

[ 408 Pa. Page 466]

    sewer system to serve a portion of the Township. Upon its petition to the Court of Common Pleas of Allegheny County, a board of viewers was appointed to ascertain the costs, damages, and expenses and to assess the benefits of the sanitary sewer system against the properties benefited, improved or accommodated by it. The board, in due course, filed its report assessing 93 properties, identified as V-1, to V-93, for the cost of the improvement.

Seven of the assessed property owners appealed the report of the viewers to the court of common pleas, on the theory that three parcels of land served by the improvement had not been assessed and that their, the appellants' proportionate shares of the cost had thereby been increased. The court of common pleas affirmed the action of the board of viewers and one of the property owners appeals to this Court the order of the court below which confirmed the viewers' report.

The case has been argued twice before us and, on the reargument, interested parties not directly involved in the litigation, were permitted to appear under Rule 65.

The controversy concerns itself with a finding of the board of viewers that "All the properties in question [the three not assessed] are beyond the boundaries of the ordained sewer district; and none in fact abut the sewer line either as ordained or constructed." (Emphasis supplied). There is ample evidence to support the conclusion that the three properties are beyond the boundaries of the sewer district and that they were not intended to, nor did they actually benefit from the improvement. That conclusion was reached by the viewers and by the court below; we cannot and will not disturb it on ...


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