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ACKERMAN v. NORTH HUNTINGDON TOWNSHIP (ET AL. (01/30/70)

decided: January 30, 1970.

ACKERMAN
v.
NORTH HUNTINGDON TOWNSHIP (ET AL., APPELLANT)



Appeal from decree of Court of Common Pleas, Civil Division, of Westmoreland County, No. 3257 in Equity, in case of Alvin Ackerman v. Township of North Huntingdon et al.

COUNSEL

Leonard Boreman, with him Harold A. Gold, and Baskin, Boreman, Sachs, Gondelman & Craig, for appellant.

Joseph M. Loughran, with him Loughran & Loughran, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell dissents.

Author: Cohen

[ 437 Pa. Page 51]

Appellee, Alvin Ackerman, a developer of residential home sites in North Huntingdon Township (Township), Westmoreland County, known as Markvue Manor, brought this action in equity against the Township of North Huntingdon, Crestview Land Company (Crestview), appellant herein, and Marwood Corporation (Marwood) seeking to restrain the three parties from permitting any sewage from the Crestview development to flow into the Five Pines-Lincoln Way trunk sewer transportation lines which Ackerman had built. The court below found that Ackerman did have title to the sewer line, but it refused to issue an injunction and instead assessed damages of $15,000 against Crestview.

The relevant facts are as follows: Three tracts of land are involved in the dispute. Crestview owns the northern-most tract; Marwood owns the one in the middle; and Ackerman owns the southern-most tract. On July 9, 1959, in connection with his development

[ 437 Pa. Page 52]

    of Markvue Manor, Ackerman entered into a contract with Township providing for the construction of a sewage treatment plant to service that development. Township was to acquire a permit from the State Board of Health to allow that plant to be built. On November 8, 1961 a new agreement modifying the original agreement was entered into by which, inter alia, in consideration of Ackerman's agreeing to construct certain sewer transportation lines on Five Pines-Lincoln Way, Ackerman would be relieved of the duty of constructing the sewage treatment plant. Prior to this latter agreement, Township had agreed with White Oak Borough and the City of McKeesport to create a comprehensive system of sewers for the transportation of sewage through lines of the Township, then through lines of the White Oak Authority and into the facilities of the McKeesport Authority. Township made application to the Commonwealth for a sewer permit for the construction and operation of the trunk transportation sewers in the Five Pines-Lincoln Way area. As granted, the permit covered a drainage area of 1014.5 acres, an area including the three properties involved in this action plus properties owned by others not involved in this proceeding.

Ackerman completed construction of the sewer line in August, 1962, and prior thereto he had signed an agreement with Marwood granting Marwood, in return for $10,000, the right to connect with the Five Pines-Lincoln Way sewer line. On October 10, 1963 Township, acting without Ackerman's knowledge or consent, authorized Crestview to connect with that sewer line and the record indicates that Crestview did tie into and make use of that sewer line immediately.

The real question presented in this appeal is whether Township had the authority to grant Crestview permission to use this sewer line or whether the authority to grant use of the line belonged to Ackerman. It is

[ 437 Pa. Page 53]

    conceded that Crestview never dealt directly with Ackerman and that its rights depend on the validity of Township's contract with it. The court below found that title to the line lay in Ackerman, but it refused to grant injunctive relief because the harm that would be caused thereby outweighed ...


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