Appeal from the Order of the Court of Common Pleas of Erie County in case of Township of Harborcreek v. Erie Drive-In Theatre Corp., No. BLD-A-702, 1675-A-1972.
Bruce W. Bernard, with him Lester S. Hecht, and Silin, Eckert, Burke, Siegel & Roseman, for appellant.
Eugene J. Brew, Jr., with him Dale & Brew, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.
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Erie Drive-In Theatre Corporation, the owner of a tract of land containing 32 acres and located in Harborcreek
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Township, Erie County, has appealed from a judgment entered against it in the Court of Common Pleas of Erie County. The judgment in the amount of $5,394.17 was entered on the appellee's, Harborcreek Township, claim based on a front foot assessment of benefits for the construction of a waterline. The pleadings below consisted of the Township's scire facias sur municipal lien and the appellant landowner's Affidavit of Defense. The latter document raises as defenses to any assessment the following: (1) that because it has leased its property to others for use as a drive-in movie theatre until December 31, 1981, its land is not benefitted by the new waterline, (2) that because the theatre operation is adequately served with water by the City of Erie from a connection on another abutting street, Nagle Road, the appellant's land is not benefitted by the Township's new waterline, and (3) that other properties with frontage abutting on the waterline have been excluded from any assessment for the costs of the project. The Affidavit of Defense makes no specific complaint as to the propriety of the dollar amount of the assessment imposed on the appellant.
At the hearing in the court below it was shown that the landowner's tract is a corner property with frontage on Nagle Road of 896 feet, along which for a distance of 245.80 feet the City of Erie constructed a waterline in 1954, for which a predecessor in title paid an assessment of about $660. The southern boundary of appellant's property abuts another public street, Iroquois Avenue, for a distance of 1609 feet. The Township's claim herein is for the construction by it of a 12 inch waterline along the entire length of the appellant's Iroquois Avenue frontage. The assessment at the rate of $3.525 per front foot produced the total assessment of $5,394.14 for which the court below, after hearing, entered final judgment. It further appeared
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at the hearing that all except 400 feet of the Iroquois Avenue frontage and other portions of the 32 acre tract not actually devoted to theatre use by the tenant was reserved in the lease for the appellant's use. The Iroquois Avenue frontage is zoned commercially to a depth of 400 feet.
The construction of a waterline is presumed to benefit an abutting property and the burden to rebut the presumption rests on the owner. Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964); Altman v. Philadelphia, 393 Pa. 246, 141 A.2d 592 (1958); Upper Moreland-Hatboro Joint Sewer Authority v. Pearson, 190 Pa. Superior Ct. 107, 152 A.2d 774 (1959). The appellant says that it has rebutted the presumption by showing that the property has a water connection at Nagle Road sufficient for the present purposes of the tenant using a part of its land. This contention is clearly without merit in the light of the facts that the appellant has reserved for its own use 1200 of the 1600 feet of commercially zoned frontage on Iroquois Avenue, as well as other portions of the property not used by the tenant for its drive-in theatre.*fn1 The landowner's dependence on the case of Upper Moreland-Hatboro Joint Sewer Authority v. Pearson, supra, is misplaced because, as the appellant concedes in its brief, the impropriety there found in a sewer assessment was based on three conditions there obtaining: (1) the property was fully and adequately ...