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NORTHVUE WATER COMPANY v. MUNICIPAL WATER & SEWER AUTHORITY CENTER TOWNSHIP (12/20/72)

decided: December 20, 1972.

NORTHVUE WATER COMPANY, INC.
v.
MUNICIPAL WATER & SEWER AUTHORITY OF CENTER TOWNSHIP



Appeal from the Order of the Court of Common Pleas of Butler County in case of Northvue Water Company, Inc. v. Municipal Water & Sewer Authority of Center Township, Butler County, Pennsylvania, No. 12 December Term, 1970.

COUNSEL

Norman D. Jaffe, with him Leo M. Stepanian, for appellant.

Frank P. Krizner, with him Lee C. McCandless and McCandless, Chew and Krizner, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer.

Author: Kramer

[ 7 Pa. Commw. Page 142]

This is an appeal from an order of the Court of Common Pleas of Butler County, dismissing exceptions filed by the Municipal Water and Sewer Authority of Center Township (Authority) to a "Decree Nisi" dismissing preliminary objections and ordering the Authority within 45 days of the date of the "Final Decree" to furnish the Northvue Water Company, Inc. (Northvue), a public utility water company, with a statement of the conditions under which the Authority would provide water service to Northvue.

At a time not disclosed in the record, but certainly before September of 1968, the Authority was established by Center Township (Township) for the purpose of providing water to the public in that Township. Also at a time not disclosed in the record, but certainly prior to the year 1957, Northvue was organized as a public utility for the purpose of serving residents in a specific plan in the Township. At the time of the hearing (December 4, 1970) in this case there were 99 homes in the plan. Northvue relies upon at least four

[ 7 Pa. Commw. Page 143]

    drilled wells for its water supply. Although the record is not clear as to whether Northvue can meet all of the water requirements of its 99 customers, the record does show that its water supply has been drastically reduced, and some of its water is classified unsatisfactory. Northvue was required by the Pennsylvania Department of Health to find another water supply, and approached the Authority requesting that the Authority supply water to Northvue for service to its customers. The record discloses that an offer was made by the Authority to Northvue for the outright purchase of Northvue's plant. Thereafter, without notice to the Authority, the owners of Northvue sold the company to a Mr. Sporcic who is now the sole owner of Northvue. In any event the negotiations for the purchase of water by Northvue from the Authority collapsed, and thereafter Northvue filed a complaint in the lower court, in equity, requesting preliminary, and thereafter final, mandatory injunctions directing the Authority to supply the "necessary water" at reasonable rates to be fixed by the lower court. Northvue in turn proposed to connect its lines to those of the Authority which, according to the record, are between 1,500 and 3,000 feet distance from Northvue's existing lines.

At this point we must highlight certain deficiencies in the record. As must be known to the bar generally, this Court traditionally reviews the entire record in each case very carefully. In this case, following the filing and service of the complaint (on December 1, 1970), the Authority filed preliminary objections on December 3, 1970. On that same date, the court below issued an order setting the matter down for argument on the preliminary objections to be held at 2:30 P.M. on the following day, December 4, 1970. The transcript of what occurred on December 4, 1970 does not mention the argument on the preliminary objections,

[ 7 Pa. Commw. Page 144]

    but rather, merely indicates the taking of the testimony of three witnesses and the introduction of certain exhibits on the merits of the case. At the end of the plaintiff's (Northvue) case, counsel for the Authority made a motion for a non-suit and a demurrer. The court reserved its decision on the defense motions, and directed the Authority to proceed with its case. At the conclusion of this hearing the court announced that it would "take the entire matter under advisement including all objections, preliminary objections to other motions that were raised," and directed counsel to file briefs. The next thing that appears in the record is an "adjudication" at the end of which the court attached its "Decree Nisi" in effect dismissing preliminary objections and granting, in part, the injunction sought by Northvue.

It is worth noting at this point that the procedural format followed by the lower court presents several potential problems. The characterization of the lower court's decree and the lower court's treatment of appellant's preliminary objections are prime examples. Fortunately, this Court need not determine whether the decree of the court below should be considered a preliminary ...


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