No. 140 January Term, 1977, Appeal from the Order dated August 16, 1976, of the Commonwealth Court at N3. 822 C.D. 1975 reversing the appeal from Order dated June 4, 1975, of the Court of Common Pleas of Northampton County at No. 84838, October Term, 1972
Herbert Toff, Easton, for appellants.
Hugh F. Dougherty, III, David A. Franklin, Philadelphia, Charles S. Smith, Easton, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix, J., concurred in the result. Roberts, J., filed a dissenting opinion.
In 1968, Jack K. Witty and Janet L. Witty, appellants, purchased a lot in Palmer Township, Northampton County, and soon thereafter erected a large dwelling house thereon. This lot was part of a subdivision filed by the Old Orchard Development Corporation.*fn1 The lot is a trapezoidal tract
situated between Wedgewood Drive on the north and Chain Dam Road on the south. The foot frontage along Wedgewood Drive is 81.40 feet and along Chain Dam Road the frontage is 200.95 feet.
On February 18, 1972, the Palmer Township Municipal Sewer Authority, appellees, completed the construction of two sewer lines abutting appellants' property, one on Wedgewood Drive and the other on Chain Dam Road. Appellees then presented appellants with a notice of assessment and a bill for the assessment in the amount of $2,823.50. The assessment covered both the footage on Wedgewood Drive and on Chain Dam Road for a total of 282.35 feet at $10.00 per foot.
On November 7, 1972, appellees filed a municipal claim in said amount. On December 31, 1972, appellants connected their dwelling to the sewer line laid in Wedgewood Drive (the front of the house faces Wedgewood Drive and is considerably closer to Wedgewood than to Chain Dam Road) and tendered a check to appellee for $810.40, representing the assessment for the frontage along Wedgewood Drive only. Appellees refused to accept this check.
On January 20, 1973, a Palmer Township zoning ordinance became effective, which ordinance prohibited the erection of a dwelling upon a subdivision of a lot containing less than 20,000 square feet. A formal draft of this ordinance, which was under consideration since 1970, had been submitted to the board of supervisors of Palmer Township some three weeks prior to completion of the sewer line project. However, the ordinance in effect at the time of completion of the sewers and of the filing of the municipal claim permitted construction of dwellings upon lots of 12,000 feet or more. The rear portion of appellants' lot measured 14,567 feet.
Appellants filed an affidavit of defense to the municipal claim and the case went before a jury. At the conclusion of the testimony, it appearing to the trial judge that no material facts were in dispute, the jury was dismissed and a directed verdict was entered for appellants ...