Appeal from order of Court of Common Pleas of Cambria County, June T., 1963, No. 964, in case of Highland Sewer and Water Authority v. Karl O. Engelbach et ux.
Edward J. Harkins, with him Gerald K. Gibson, for appellant.
Gilbert E. Caroff, for appellees.
Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Ervin, P. J. Wright, J., would affirm the judgment below.
The only question presented by this appeal is whether a municipal authority may assess the cost of constructing a sanitary sewer according to the foot front rule where the sewer is placed in an unopened street and where the lot is benefited by the sewer. The court below held that it could not, because the street was not a public street and therefore "the assessment is illegal and void." We cannot agree with this conclusion.
On March 30, 1963, appellant filed a municipal lien against the property of appellees situate in Geistown Borough, Cambria County. That property fronts 50 feet on Liberty, now Library Street, and extends back between parallel lines a distance of 160 feet to Retsuc Court, it being Lot No. 87 on the Plan of Lots called Sunny Meade, which was acknowledged on the 4th day of August, 1925, approved by the Planning Commission of the City of Johnstown on the 29th day of July, 1925, and recorded in the office of the Recorder of Deeds of Cambria County on the 15th day of February, 1927. In the deed of appellees the lot is described as fronting 50 feet on "Liberty Street, now Library Street." The name of that street was changed to Sunberry Street. It was described as bordering 160 feet on Leo Street. That street has been changed to Lion Street.
The lot is bounded on the front by Sunberry Street, a public street in the Borough of Geistown, Cambria County, and it is bounded on the easterly side by Lion Street, which is shown on the recorded Plan of Lots but that street had not been accepted by ordinance of the Borough of Geistown.
Appellant installed a sanitary sewer in Sunberry Street to render service to the properties on that street. That sewer extends along the full frontage of 50 feet of the property of appellees fronting on Sunberry Street. The sewage in that sewer flows from east to west. Appellant installed a sanitary sewer in Lion Street to render service to the properties on that street. That sewer was placed within the easterly half of Lion Street and extends approximately 90 feet along the rear portion of the property of appellees bordering on Lion Street. The sewage in that sewer flows from north to south. The work was completed on September 30, 1962 and the sewers on both streets were part of the same project.
Appellant had adopted assessment rules relating, inter alia, to any property abutting on more than one street. The rules provided that in case of corner lots, where the sewer services two sides of the property, which is large enough to be subdivided, the full length of the front, plus the excess over 120 feet of the second side, should be assessed.
In accordance with the assessment rules of the appellant the assessment was for 90 feet in Sunberry Street and Lion Street at $7.00 per foot front for the sum of $630.00. That assessment was for 50 feet frontage on Sunberry Street and 40 feet frontage on Lion Street, it being the excess of 120 feet of the frontage of the property of appellees on Lion Street.
On February 27, 1963, appellees tendered to appellant the sum of $350.00 for the frontage of 50 feet on Sunberry Street but that tender was refused because it did not include the 40 feet of frontage of appellees' ...