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EDWARD S. FINKELSTEIN v. COMMONWEALTH PENNSYLVANIA (08/05/81)

decided: August 5, 1981.

EDWARD S. FINKELSTEIN, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County in the case of Commonwealth of Pennsylvania v. Edward S. Finkelstein, No. 674 Criminal, 1979.

COUNSEL

Edward S. Finkelstein, appellant, for himself.

William J. Peters, Foulkrod, Peters, Frank and Wasilefski, for appellee.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 61 Pa. Commw. Page 92]

Edward S. Finkelstein (Appellant) appeals here from an order of the Court of Common Pleas of Dauphin County that affirmed his conviction and entered judgment of sentence for the summary offense of failing to connect to a sanitary sewer line in Susquehanna Township (Township).

The facts are uncontested. The Township notified Appellant that, pursuant to its ordinances, Appellant would be required to connect to a sanitary sewer line installed by the Township that was available to service his property located a 1804 York Lane. Although Appellant's property abuts a public street, the sewer line in question ran in a sewer easement abutting the rear of Appellant's property and was within 300 feet of his residence. Appellant refused to connect to the sewer line.

[ 61 Pa. Commw. Page 93]

On March 13, 1979, the Township filed a criminal complaint accusing Appellant of failure to connect to the Township's sanitary sewer system as required after receiving proper notification. Such refusal was alleged to be in violation of Section 2401 of The First Class Township Code (Code), Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. ยง 57401, the Susquehanna Township Plumbing Code, Susquehanna Township, Dauphin County, Ordinance 72-11 (February 8, 1972), as amended, (repealed) (1972 Plumbing Code)*fn1 and Section 22 of Susquehanna Township, Dauphin County, Pa., Code Chapter XIX (1974) (Sewer Ordinance). Appellant was convicted of a summary offense and sentenced to pay a fine as provided in Section 9 of the Sewer ordinance. Appellant appealed and a trial de novo was held before the Court of Common Pleas of Dauphin County. The trial court upheld the conviction and denied a motion for a new trial and in arrest of judgment. Appellant's appeal to this Court followed.

Appellant contends that he did not violate the Sewer Ordinance by his refusal to connect to the sewer line because his property does not fall within the class of properties specified by Section 22 of the sewer ordinance. He further contends that the 1972 Plumbing Code that includes, inter alia, the BOCA Basic Plumbing Code/1970 (1970 BOCA Code)*fn2 is also inapplicable to his property. Of course, Section 2401 of the Code is

[ 61 Pa. Commw. Page 94]

    merely an enabling statute, therefore, Appellant's conduct could not constitute a violation of its provisions.

It is true, as the learned trial judge opined, that Section 2401 of the Code authorized the Township*fn3 to lay sewer lines in public streets "as far as practicable" and may require owners of property "benefited, improved or accommodated" by those lines to make connection "as the commissioners may order for the purpose of discharge of such drainage or waste matter as the commissioners may specify." Section 2402 of the Code authorizes the Township to lay sewer lines over private property when it is reasonably impracticable to place such lines in public streets. Quite obviously, that is the authority exercised by the Township in the instant case when it acquired an easement for the sewer line. The Township argued and the trial ...


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