Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Joseph E. Barnes and Elizabeth A. Barnes, his wife, v. McCandless Township Sanitary Authority, No. 1755 January Term, 1968.
George R. Specter, with him Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellants.
William H. Markus, with him Edmond B. Smith, Jr., for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer. Judge Mencer joins in this dissenting opinion.
This is an appeal from an order of the Court of Common Pleas of Allegheny County, Civil Division, in an appeal from the assessment of benefits by a Board of View. The court order appealed from determined that the deed from appellants to appellee for a right of way for a sewer did not constitute an agreement between the parties that benefits could not be assessed against the property of the appellants. It is not contested that the court had authority to make the preliminary determination. See Act of June 22, 1964, Spec. Sess., P.L. 84, Art. V, Section 517, 26 P.S. § 1-517. Appellants signed a deed granting a right of way against their property to appellee. The deed stated:
"Now, Therefore, in true consideration of the sum of One ($1.00) Dollar in hand paid by the Grantee to the Grantors, the receipt of which is hereby acknowledged, and in further consideration of the excavation, construction and laying by the Grantee of a Sewer in the right-of-way hereinafter described, . . . .
"To Have and To Hold unto the Grantee, its successors and assigns, together with the right to enter upon said right-of-way for the purpose of repairing, maintaining and replacing the said sewer. The Grantor and Mortgagee do hereby release the Grantee, its successors and assigns, from all damages which might be assessed to the property of said Grantors by reason of the construction, maintenance, repairs, or removal of the said sewer. The Mortgagee joins in this grant to indicate consent to same and agrees that its mortgage
of record in Mortgage Book Volume 4549, Page 133, in the Recorder of Deeds Office of Allegheny County, Pennsylvania, is held with like force and effect as though said Mortgage were acknowledged, dated and recorded on a date subsequent to the grant of this Agreement. This grant is perpetual."
Grantors take the position that since the deed contained the provision that it was in consideration of the installation of the sewer, this, by implication, constituted a release by the grantee of its rights to assess benefits against the property. The lower court ruled against appellants' position and we must affirm.
There is no doubt that the Authority, appellee, could have waived the right to assess benefits as was done in Nether Providence Township Sewer District Assessment Case, 148 Pa. Superior Ct. 7, 24 A.2d 678 (1942), and Gladwyne Colony, Inc. v. Lower Merion Township, 409 Pa. 441, 187 A.2d 549 (1963). However, in these cases, it was quite clear that there was an agreement to waive the right to assess benefits, and the only issue in dispute was the propriety of doing so. Here, the issue is whether there was any such waiver.
It will be noted that the deed expressly waived the right of the grantors to claim damages. Under appellants' theory, this was unnecessary. The consideration of one dollar ($1.00) and the installation of the line would have implied the waiver and it would have been signed by the parties to be charged. If the parties felt it was necessary to insert expressly the waiver of the assessment of damages, then certainly had they, at the same time and by the same instrument, have intended to waive the assessment of benefits, they would have inserted such a waiver as well. The presence of one and the ...