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EXETER TOWNSHIP v. MUSA J. EWAYS AND JEANETTE M. EWAYS (07/13/78)

decided: July 13, 1978.

EXETER TOWNSHIP, BERKS COUNTY, AUTHORITY, APPELLANT
v.
MUSA J. EWAYS AND JEANETTE M. EWAYS, OWNERS OR REPUTED OWNERS OR WHOEVER THE OWNERS MAY BE, APPELLEES. (2 CASES)



Appeals from the Order of the Court of Common Pleas of Berks County in case of Exeter Township, Berks County Authority v. Musa J. Eways and Jeanette M. Eways, owners or reputed owners or whoever the owners may be, Nos. 66 and 67 December Term, 1973.

COUNSEL

Frederick L. Reigle, with him Samuel B. Russell, and Ryan, Russell & McConaghy, for appellant.

Clifford B. LePage, with him C. Wilson Austin, and Austin, Speicher, Boland, Connor & Giorgi, for appellees.

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

Author: Wilkinson

[ 36 Pa. Commw. Page 531]

Exeter Township Authority (Authority) appeals from an order of the Court of Common Pleas of Berks County, sitting en banc, which affirmed an adjudication by the trial judge entered in favor of the appellee-property-owners. Two municipal claims had been filed by the Authority, and were consolidated for trial and for argument here, in the amounts of $6,828.15 and $3,072.25 for work done in laying sanitary sewer lines in two roads abutting appellees' property.

[ 36 Pa. Commw. Page 532]

These assessments were based on the "front-footage" method. We affirm.

The Pre-Trial Conference Order stipulated the issues to be tried, to wit: whether the neighborhood in which the subject property is located was predominantly rural in character at the time the assessments were levied and whether the sewer line in question was a benefit to the premises.

At a trial before the court, sitting without a jury, it was shown that (1) the appellees' property consists of 142.59 acres of land, mainly used for farming, which is located in an area of the township that consists largely of residential subdivisions; (2) the sanitary sewer line was constructed by the Authority in 1968 on the opposite sides of the farm, 779 feet on Lincoln Road, a paved state highway, and 350 feet on Nagle Road, a paved township road; and (3) that lateral lines (to connect to abutting property) were installed by the Authority for residential property opposite appellees' farm but none was placed to serve the property of the appellees. The only testimony was that of the appellee-property owner, a former township engineer who also testified as an expert witness. Appellee stated that it would cost approximately $9,000 to install laterals to serve his property and that prior permission would have to be obtained from the state and township to cut the surface of the roads.

The Authority pleaded surprise with regard to this testimony and moved to strike that portion relating to the laterals as not responsive to the pleadings. The trial court, however, allowed the testimony, but because of the Authority's plea scheduled a second hearing at which the Authority renewed its motion to strike but offered no rebuttal evidence. In its adjudication the trial court found that because laterals had not been constructed to serve the appellees' property it would

[ 36 Pa. Commw. Page 533]

    be inequitable to assess on a front footage basis. The court therefore entered a verdict for the property owners subject to the condition that the Authority could seek the appointment of a board of view to ...


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