Appeal from the Order of the Court of Common Pleas of Northampton County in case of Palmer Township Municipal Sewer Authority v. Jack K. Witty and Janet L. Witty, Owner or Owners, or apparent or reputed Owner or Owners, or whoever may be the owner or owners, No. 84838 October Term, 1972.
David A. Franklin, with him F. Eugene Reader, Hugh F. Dougherty, III, Franklin S. Van Antwerpen, and, of counsel, Townsend, Elliott & Munson, for appellants.
Herbert Toff, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. President Judge Bowman concurs in the result only.
[ 26 Pa. Commw. Page 118]
This is an appeal from the decision and order of the Court of Common Pleas of Northampton County which, sitting en banc, affirmed the directed verdict entered by the trial court in favor of Jack L. Witty and Janet K. Witty (Wittys) and against the Palmer Township Municipal Sewer Authority (Sewer Authority). A municipal claim had been filed against the Wittys by the Sewer Authority in an attempt to collect $2,823.50 assessed for the construction of sanitary sewers in two streets abutting the Wittys' property, which fronts on Wedgewood Drive for a distance of 81.40 feet and extends 265 feet to the rear where it abuts Chain Dam Road for a distance of 200.95 feet.
On February 18, 1972, the Sewer Authority completed construction of two sewer lines running the full distance of the Wittys' property lines on both Wedgewood Drive and Chain Dam Road. The Wittys connected their residence to the closer sewer line on Wedgewood Drive, but it appears that the sewer line on Chain Dam Road was also available to serve the property at the time of their connection. The Sewer Authority, however, assessed the Wittys on a footfront
[ 26 Pa. Commw. Page 119]
basis for the sewer construction on both Wedgewood Drive and Chain Dam Road. When the Wittys tendered an amount sufficient to cover only the footage on the Wedgewood Drive, the Sewer Authority refused the tender and filed a municipal claim in the court below to collect the entire amount assessed for both sewer lines.
The trial court, after taking evidence, granted the Wittys' motion for a directed verdict, holding that no assessment could be recovered against them for construction of the sewer line in Chain Dam Road. Then, upon the motion of the Sewer Authority for judgment n.o.v., the court en banc denied the motion and affirmed the trial court. In so doing, it held that the sewer line on Chain Dam Road was not benefiting the Wittys' property and, therefore, construction costs there could not properly be assessed against them. This appeal followed.
It is well settled in the law that when a property is not benefited by the construction of a sewer line, our courts cannot sustain an assessment against the property for its construction. Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964). The law presumes, however, that a property is benefited by the construction of an abutting sanitary sewer line unless the property owner proves the contrary. Whitemarsh Township Authority, supra. In the case of Upper Moreland-Hatboro Joint Sewer Authority v. Pearson, 190 Pa. Superior Ct. 107, 152 A.2d 774 (1959), it was held that a sewer constructed in the street abutting the rear of a property did not benefit the property once the property owner had proved that the house situated on the property had already been connected to a previously constructed sewer line abutting the front of the property line, and where it was shown that local zoning ordinances prevented building any other dwellings upon the lot which might be served by the
[ 26 Pa. Commw. Page 120]
new sewer line. It is the contention of the parties that an analogous situation exists here, in that various deed restrictions and zoning ordinances prevent the building of an additional dwelling on the rear of the Wittys' property which might be served by the sewer line on Chain Dam Road, and that the ...