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ALICE M. CLARK AND MARY M. PROSKE v. MILLCREEK TOWNSHIP WATER AUTHORITY AND TOWNSHIP MILLCREEK (06/01/78)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 1, 1978.

ALICE M. CLARK AND MARY M. PROSKE, APPELLANTS
v.
MILLCREEK TOWNSHIP WATER AUTHORITY AND TOWNSHIP OF MILLCREEK, APPELLEES

Appeal from the Order of the Court of Common Pleas of Erie County in case of Alice M. Clark and Mary M. Proske v. Millcreek Township Water Authority and Millcreek Township, No. 44 Equity 1976.

COUNSEL

Eugene J. Brew, Jr., with him Dale & Brew, for appellants.

William C. Sennett, with him Donald E. Wright, Jr., and Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for appellees.

Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 35 Pa. Commw. Page 565]

A decision of the Court of Common Pleas permitting the Millcreek Township Water Authority (Authority/Appellee) to take all actions necessary to extend water services to certain areas of the Township of Millcreek (Township), Erie County, is the subject of this appeal.

Upon completion of the installation of sewer lines in a portion of Millcreek Township, the Authority prepared plans and accepted bids for the installation of water lines in that area. Pursuant to Section 1602.2 of The Second Class Township Code (Code), 53 P.S. § 66602.2,*fn1 the Township enacted an ordinance requiring abutting owners to connect to the proposed water system.

[ 35 Pa. Commw. Page 566]

Appellants, Alice M. Clark and Mary M. Proske, owners of properties to be serviced by the proposed water system, objected to its construction arguing that the majority of property owners to be serviced by the system did not want it; that the cost of the system to individual residents will be unduly burdensome; that there is no need for a new system; and that the mandate that each owner must connect to the new system is unreasonable.

After considering the cost and feasibility of constructing the proposed system, and hearing evidence on the availability and quality of ground water, the court below made the following findings of fact: (1) that there is a substantial need for a municipal water system in the area; (2) that there is an inadequate supply of well water and a danger of pollution to that system; (3) that the construction cost of the system is reasonable; (4) that construction of the system is in the public interest; and (5) that construction of the system will be an immediate and long-range economic benefit to the area. It concluded that Appellants' contentions were not supported by substantial evidence; that the Authority neither abused its discretion, committed fraud, nor acted in an arbitrary or capricious manner, and ordered that all necessary steps be taken to extend water services to the subject area.

Appellants appealed to us urging us to agree that the lower court's finding of fact nos. 1 and 2 are not supported by the evidence; that it erred in applying the criteria for its scope of review; and that it abused its discretion in permitting the Authority to mandate connection to the proposed system. It is argued that

[ 35 Pa. Commw. Page 567]

    the well water system servicing the area supplies pure water and adequately meets the needs of local residents; that there is no evidence of the impending pollution of that system; that the proper test to be applied in reviewing the Authority's action is to determine whether such action is reasonable, not whether there was bad faith, fraud, capricious action or abuse of power, and that the lower court abused its discretion in permitting the Authority to require each abutting owner to connect to the proposed system regardless of whether a safe and adequate supply of water was being rendered by individual wells.

We shall address each argument seriatim.

[ 35 Pa. Commw. Page 568]

Our scope of review is governed by the provisions of the Act of April 18, 1919, P.L. 72, as amended, 12 P.S. § 1165,*fn2 under which we are directed to review the record to determine whether the court below abused its discretion, committed an error of law, or whether its findings of fact are not supported by substantial evidence. See Commonwealth v. United States Steel Corp., 15 Pa. Commonwealth Ct. 184, 325 A.2d 324 (1974). See also Department of Environmental Resources Page 568} v. Pennsylvania Power Co., 12 Pa. Commonwealth Ct. 212, 316 A.2d 96 (1971).

Appellants' lack of substantial evidence argument cannot be sustained. The record reveals that the water table in Millcreek Township has receded in recent years rendering certain wells unproductive. It is also shown that water rendered by certain other wells is contaminated and undrinkable, and that several residents must rely on bottled water for cooking and drinking purposes.*fn3

Appellants' scope of review argument is likewise without merit. Implicit in the lower court's conclusion that the Authority committed no fraud or abuse of discretion nor acted in an arbitrary or capricious manner is the determination that the Authority acted reasonably. We find no error in the court's failure to make an explicit finding of reasonableness.

Considering the authorization of Section 1602.2 of the Code, 53 P.S. § 66602.2, to compel connection to a water supply system owned by a municipal authority, Appellants' abuse of discretion argument also must be dismissed.

Accordingly, we

Order

And Now, this 1st day of June, 1978, the order of the Court of Common Pleas of Erie County is affirmed.

Disposition

Affirmed.


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