Appeal from order of Court of Common Pleas of Montgomery County, No. 68-255 of 1968, in case of Victoria C. Jannetta et al. v. Anthony Recklitis et ux.
Randolph A. Warden, for appellants.
David S. Foulke, submitted a brief for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J. Dissenting Opinion by Hoffman, J. Wright, P. J., joins in this dissent.
[ 214 Pa. Super. Page 172]
In an action of assumpsit plaintiffs-appellants sought to recover money they had expended to connect the facilities of their home to the sanitary sewer system of Abington Township, a township of the first
[ 214 Pa. Super. Page 173]
class. Appellants had purchased the property from defendants-appellees under an agreement which provided that:
"11. Any notices or ordinances filed subsequent to the date of this agreement by any governing authority for which a lien could be filed are to be complied with at the expense of the buyer, provided said buyer takes title hereunder. Any such notices or ordinances filed prior to the date of this agreement are to be complied with at the expense of the seller." (Emphasis supplied)
Appellants alleged that notice had been given to the appellees prior to the date of the agreement to make the connection aforementioned, that they had failed to do so and that subsequently appellants were compelled to make it at their expense. The lower court sustained appellees' preliminary objections and dismissed the complaint for the reason that the notice received by appellees was not such "for which a lien could be filed" as to bring it under the terms of the agreement of sale. This appeal followed.
The aforesaid notice was given to appellees under Abington Township Ordinance No. 878, which provided, inter alia:
"(a) . . . it is the duty of such owners to cause the buildings erected on their premises . . . to be connected therewith at their own expense. . .; and that upon the failure of any such owner to comply with the requirements of such notice and of this Ordinance, the said Department of Public Health will cause such connection to be made at the expense of such owner . . .
"(d) Upon the failure of any owner . . . who has been duly notified . . . to cause any building . . . to be connected with any such sewer, to comply with the requirements of any such notice or with the provisions of this Ordinance, the Department of ...