Appeal from judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1974, No. 882, in case of William L. Byrne and June Byrne, his wife v. Morris Kanig.
David J. Reedy, Jr., with him S. S. Friedman, for appellant.
Joseph L. Mullaney, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P. J., joins in this dissenting opinion.
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The sole issue in this appeal is whether the equitable owner or the legal owner of a property is responsible for the payment of a municipal sewer lien, where the contract of sale is silent as to this question.
This case was submitted to the court below on an agreed statement of facts.*fn1 On May 3, 1966, seller-appellant and buyer-appellees entered into an agreement of sale for a property improved with a cinder block structure at 1438 East Drinker Street, Dunmore Borough, Lackawanna County. The agreement provided for an installment-purchase arrangement, by which buyers were allowed a period of ten years in which to pay the $27,000 balance due on the purchase price. The contract provides that buyers are to pay taxes on
[ 231 Pa. Super. Page 534]
the property (except a portion of the transfer taxes), keep the premises insured, and maintain the premises in repair. Upon payment of the full purchase price, seller agrees to convey to buyers "a good and sufficient Deed for the proper conveying and assuring of a good and marketable title in and to the said premises in fee simple, free from all encumbrances and dower or right of dower, conveyance to contain the usual covenant of Special Warranty."
The construction of a sanitary sewer abutting the premises was authorized by a resolution of the Scranton Sewer Authority on March 18, 1968. The engineer's certificate of completion was certified September 16, 1970. The property was assessed $2,970.00. When payment was not received, the Authority entered a lien against the property on March 10, 1971. Buyers have tendered the full purchase price, and seller has tendered a special warranty deed to the premises, but buyers have refused to accept it, claiming that the sewer lien is an encumbrance which seller is obligated to remove.
Suit was brought by buyers against seller in the Court of Common Pleas of Lackawanna County for the amount of the lien. The court below entered judgment for buyers. This appeal followed.
The determination of liability for municipal improvement claims as between buyer and seller is governed by the Act of May 16, 1923, P. L. 207, § 9, as amended, 53 P.S. § 7143, which provides that "[i]n case the real estate benefited by the improvement is sold before the municipal claim is filed, the date of completion in said certificate shall determine the liability for the payment of the claim as between buyer and ...