Appeal, No. 437, Oct. T., 1962, from judgments of Court of Common Pleas of Schuylkill County, Nov. T., 1957, No. 487, in case of Edwin Becker et al. v. Borough of Schuylkill Haven. Judgments reversed; reargument refused April 20, 1963.
H. G. Stutzman, with him Stutzman, Lewis and Sidoriak, for appellant.
W. J. Krencewicz, with him George I. Puhak, for appellees.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 200 Pa. Super. Page 307]
This is an appeal by the Borough of Schuylkill Haven from judgments for plaintiffs in a trespass action brought to recover damages from the defendant borough as a result of shutting off the water supply to plaintiffs' home after notice for nonpayment of sewer rentals.
The Borough of Schuylkill Haven owns and operates a water supply system for its residents. The borough likewise operates a sewer system under lease from the owner, Schuylkill Haven Municipal Authority. Plaintiffs' residence in the borough was served by these systems. Although their water bills were paid, plaintiffs refused to pay a sewer rental of $168.31 which had accumulated between 1952 and 1957. On September 13, 1957, plaintiffs were notified by the borough that their water supply would be cut off unless the sewer rental was paid within fifteen days from date of notice. Accordingly, on October 8, 1957, plaintiffs' water supply was cut off. In so doing the borough officials acted under the authority of Ordinance 394, enacted on August 9, 1957 (approved on September 9, 1957), giving the borough "the right to cut off sewerage service and water service from the delinquent premises and not to restore the same until all delinquent bills against the same and the cost of cutting off and restoring service shall have been paid."
On October 17, 1957, plaintiffs, by praecipe, commenced the present action of trespass seeking damages from the borough for shutting off their water supply. By agreement of counsel, plaintiffs' supply of water was restored on October 28, 1957. On the same date, plaintiff Edwin Becker filed a complaint in equity seeking a mandatory injunction against the borough for
[ 200 Pa. Super. Page 308]
restoration of the water connection to his home. By agreement of counsel, water service was restored pending the final disposition of the case. Judge STAUDENMEIER, as chancellor, dismissed plaintiff's complaint in equity; the court in banc dismissed plaintiffs' exceptions, and judgment was entered in favor of defendant borough. On appeal, the Supreme Court of Pennsylvania (Becker v. Schuylkill Haven Borough, 395 Pa. 572, 151 A.2d 77) reversed on the ground that, under the Act of September 7, 1955, P.L. 576, 53 PS § 2261, the right "to shut off the supply of water to such premises" was applicable only to municipal authorities and boroughs as owners of sewer systems as distinguished from lessees. Since The Borough Code (Act of May 4, 1927, P.L. 519, as amended, 53 PS § 47101 et seq.) did not authorize the municipality to enact a shut-off ordinance under such circumstances, the Supreme Court concluded that it could not supply "the borough with an additional method for the collection of unpaid sewer charges," or "fill the void apparently created by legislative oversight."
The trespass action was tried before a jury, beginning on May 20, 1960. The husband-plaintiff had died prior to trial, and the wife was substituted in her capacity as executrix of her husband's estate. At the trial, wife-plaintiff testified that for the period of twenty days after the water was cut off she and her husband drove to a spring about three miles distant from her home. Together they carried ten one-gallon jugs, two at a time, up an embankment and across a railroad track; they filled the jugs at the spring and returned home. Six trips were made during the twenty-day period from October 8, 1957, to secure water for drinking and cooking purposes. Water for ...