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TRUX REALTY COMPANY v. CRANBERRY MUNICIPAL SEWER & WATER AUTHORITY (04/04/73)

decided: April 4, 1973.

TRUX REALTY COMPANY, INC.
v.
CRANBERRY MUNICIPAL SEWER & WATER AUTHORITY



Appeal from the Order of the Court of Common Pleas of Butler County in case of Trux Realty Company, Inc. v. Cranberry Municipal Sewer & Water Authority, Industrial Area, No. 134 September Term, 1971.

COUNSEL

William C. Robinson, with him Henninger & Robinson, for appellant.

W. Theodore Brooks, with him Reding, Blackstone, Rea & Sell, for appellee.

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

Author: Rogers

[ 8 Pa. Commw. Page 191]

Trux Realty Company, Inc. appeals from an order of the Court of Common Pleas of Butler County dismissing its petition to strike a judgment entered against it in that court.

It is necessary to state carefully the facts from which the result here naturally flows. The Municipal Sewer and Water Authority of Cranberry Township was created by Cranberry Township, Butler County, a Second Class Township, pursuant to the Municipality Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, 53 P.S. § 301 et seq. It embarked on a program to sewer an area called the "Industrial Park Area" which it completed sometime prior to December 1967. It was necessary to acquire rights-of-way through seven private properties, a portion of one of which Trux subsequently acquired. Three of the required rights-of-way, including that through Trux's predecessor, were obtained by grant, the remaining four were condemned by declaration of taking pursuant to the Eminent Domain Code, Act of June 22, 1964, P.L. 84, 26 P.S. § 1-101 et seq. The Authority determined that the costs of the sewer should be assessed by the benefits method.

The Authority filed a separate declaration of taking with respect to each of the four properties through which rights-of-way were required to be condemned, each of which proceedings was given a term and number. The Authority then filed a petition for the appointment of viewers "to determine the assessable cost of construction of the said sewers including any damages . . . to balance damages against the benefits and to assess or award the excess of one over the other against the properties benefited." The seven properties

[ 8 Pa. Commw. Page 192]

    through which rights-of-way were required are mentioned in the body of the petition with appropriate reference to the place of recording of the three agreements or by appearance docket numbers in the case of the four condemnations. This petition appears to have been filed in early 1968. The petition was assigned its own docket number and the docket numbers of the four declarations of taking are never again referred to in the proceedings. The jury of view then appointed did not file a report until January 22, 1970, two years after its appointment. During that interval, in November 1969, Trux purchased a part of one of the properties, through which a right-of-way had been acquired, for a recited consideration in excess of $65,000.

The jury's report assessed benefits against 21 properties, including that of Trux's predecessor. The court below directed the jury's report to be filed and ordered its absolute confirmation unless exceptions should be filed within thirty days. Several of the property owners, not including Trux's predecessor, as well as the Authority filed what they denominate "Appeals" from the jury of view report.

At this point, it is necessary to advert to the provisions of The Second Class Township Code, Act of May 1, 1933, P.L. 103, reenacted by the Act of July 10, 1947, P.L. 1481, 53 P.S. § 65101 et seq.*fn1 Section 15 of the Act of July 10, 1947, 53 P.S. § 66035, provides that when exceptions are filed to the viewers' report, the court may ". . . ...


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