Appeal from decree of Court of Common Pleas of Montgomery County, No. 64-13832, in case of The Township of Horsham et al. v. Henry Weiner et al.
Frederick L. Fuges, with him Robert K. Duffy, and MacCoy, Evans & Lewis, for appellants.
Norman R. Bradley, with him Raymond H. Schenck, Winston J. Churchill, Jr., Elmer L. Menges, and Saul, Ewing, Remick & Saul, for appellees.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
This is an appeal by defendants from a decree in equity which, having impliedly held in favor of plaintiffs on the question of dedication of a sewer line, went on to dismiss defendant's counterclaim for reimbursement of the cost of the line. The plaintiffs in this case were a second class township and its sewer authority;*fn1 the defendants were a land developer (Weiner) and two corporations (Solida and Wilshire Manor) controlled by him (hereinafter collectively referred to as "appellants"). The complaint sought an order directing the appellants to dedicate to the Township of Horsham (Township) for the consideration of $1.00 a sewer line which Weiner had installed in connection with a subdivision which he was developing within the Township called "Oak Hill Farms". The answer denied that appellants had agreed to dedicate the sewer line, but averred that Solida had only agreed to dedicate a smaller sewer line originally contemplated. By way of counterclaim, appellants alleged that the Township had agreed to pay them the difference in cost between the smaller line and the larger one actually installed, and demanded payment of this difference. These pleadings were filed and the case became at issue in December, 1964.
On September 23, 1965, the Chancellor scheduled a hearing in the case to be held on September 28, 1965. On the latter date, an order was entered, apparently without testimony but after statements of counsel made in open court. The full text of the order is reproduced in the margin.*fn2 By this order,
"the Court finds that this system is a public system and that the Township or the Sewer Authority or both have the right to connect public sewers with any of the pipes shown on Plaintiff's Exhibit No. 2." Although there was no record of this hearing and nothing in the briefs as to what counsel said or what Plaintiff's Exhibit No. 2 was, it seems clear on the basis of the subsequent trial testimony and the Chancellor's adjudication that the sewer line which is the subject matter of this litigation is embraced in the phrase "public system" referred to in the order. No exceptions were taken to this order and no appeal was filed.
Some light is shed on the reason for the September 28, 1965, hearing by the statement of counsel for the Sewer Authority at the commencement of the trial in May, 1966. He there stated that the suit had been commenced because of the need to establish the right and title of the Sewer Authority to the line in question in order to connect it with the new sewer which the Authority was constructing under a State highway, which was then in process of being widened and repaved. This necessity apparently brought to a head the dispute between the parties and resulted in the suit. The urgency apparently became acute by September
of 1965, and the unusual hearing of September 28, 1965, resulted.
The trial proper was held at two hearings in 1966, and an adjudication was filed on May 24, 1967. Apparently considering his order of September 28, 1965 as a final disposition of the question concerning dedication of the sewer line, the Chancellor did not further adjudicate that question. His adjudication stated: "This court has already ruled that a portion of the interceptor [sewer] line in ...