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SOUTH UNION TOWNSHIP SEWAGE AUTHORITY AND TOWNSHIP SOUTH UNION v. VICTOR KOZARES (05/30/74)

decided: May 30, 1974.

SOUTH UNION TOWNSHIP SEWAGE AUTHORITY AND TOWNSHIP OF SOUTH UNION, APPELLANTS,
v.
VICTOR KOZARES, HARRY B. MOATS, EWING NEWCOMER, MICHAEL JANOSICK, EARL GEORGE, JAMES E. HAYDEN, DENNIS CROPP, FRANK LECHNAR, FRED MATELLI, WILLIAM MORGANOSKY, WENDELL GOODWIN, LLOYD HUNTER, CARL PETNO AND JOHN CIPOLETTI, APPELLEES



Appeal from the Order of the Court of Common Pleas of Fayette County in case of Victor Kozares, Harry B. Moats, Ewing Newcomer, Michael Janosick, Earl George, James E. Hayden, Dennis Cropp, Frank Lechnar, Fred Matelli, William Morganosky, Wendell Goodwin, Lloyd Hunter, Carl Petno and John Cipoletti v. South Union Township Sewage Authority and Township of South Union, No. 2737 in Equity.

COUNSEL

Victor K. Lynch, with him Joseph P. Matuschak, for appellants.

A. J. Kuzdenyi, for appellees.

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

Author: Crumlish

[ 13 Pa. Commw. Page 326]

This is an appeal from a final decree of the Court of Common Pleas of Fayette County which dismissed exceptions filed by South Union Township Sewage Authority (Authority) and the Township of South Union (Township) to a decree nisi enjoining Appellants from making or enforcing a $10.00 front-foot sewer assessment, and further ordered the Authority to submit a revised sewer assessment schedule for further review by the court.

In 1962, after it had been cited by the Commonwealth of Pennsylvania for inadequate sewage facilities, the Township organized the Authority pursuant to the Municipality Authorities Act of 1945*fn1 for the purpose of constructing and operating a new sewer system to serve the Township. Work begun on the project in 1971, bearing an estimated completion cost of $6,900,000.00. Of this amount, the Authority received grants from federal and state agencies totaling $2,054,380.00 (which were invested to earn $110,620.00 during the period of construction). The remaining construction cost was financed by the issuance of a series of short and long term revenue bonds totaling $4,735,000.00. To

[ 13 Pa. Commw. Page 327]

    amortize these obligations, the Authority set a tap-in fee of $300.00 for single residences,*fn2 a $10.77 monthly service charge or rental,*fn3 and a $10.00 front-foot assessment. The front-foot assessment, which is the only rate here in dispute, was calculated by dividing the total presently assessable front-footage abutting the sewer laterals (190,000 feet) by the estimated revenue to be raised by this method ($1,900,000.00). To enforce payment of these rates the Township enacted Ordinance No. 66 on June 14, 1971, which required property owners to tap into the sewer system within sixty days of notice, or subject themselves to a fine of $50.00 per day for noncompliance.

The instant controversy erupted on April 27, 1973, when appellees (hereinafter "plaintiffs"), on behalf of all residents and citizens of the Township, filed a "Petition for Preliminary Injunction"*fn4 in the Court of Common Pleas of Fayette County, sitting in equity. The petition alleged, inter alia, that the tap-in, front-foot and monthly service fees described above were excessive and impliedly unreasonable, and prayed that the Authority be enjoined from collecting these fees, and that Ordinance No. 66 be set aside as unconstitutional. On the

[ 13 Pa. Commw. Page 328]

    basis of this petition, Judge Feigus of the court below entered a rule on the Authority and Township (hereinafter referred to collectively as "defendants") to show cause why a preliminary injunction should not be granted. He further directed the defendants to file an answer within ten days, and set May 2, 1973, as the hearing date on the petition. At this hearing, the defendants objected to the Court's assumption of equity jurisdiction on the issue of the reasonableness of the sewer rates, but stipulated to a twenty-day moratorium on enforcement of the tap-in ordinance if plaintiffs would withdraw their equity action and proceed on the law side.

Notwithstanding this apparently acceptable agreement, the plaintiffs filed a second "Petition for a Preliminary Injunction" with the same court on June 4, 1973, containing essentially the same averments and prayer as were asserted in the first petition. The record again does not tell us whether a rule was served on defendants or whether a hearing was held on the merits of this second petition. On June 4, 1973, Judge Feigus granted a preliminary injunction restraining defendants from enforcing Ordinance No. 66, and approved a $1,000.00 injunction bond filed by plaintiffs. The court also appointed, over the objection of ...


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