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decided: June 9, 1982.


Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of Tremont Municipal Authority v. John W. Marnickas, No. J-161, 1979.


Stephen P. Ellwood, with him Isadore E. Krasno, Krasno & Krasno, for appellant.

Fred J. Wiest, Williamson, Friedberg & Jones, for appellee.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Mencer did not participate in the decision in this case.

Author: Crumlish

[ 67 Pa. Commw. Page 118]

Marnickas appeals a Schuylkill County Common Pleas Court order requiring him to pay sewer rental fees to the Tremont Municipal Authority. We affirm.

In 1976, the Authority constructed a wastewater collection and treatment plant in the Borough of Tremont. Residents were notified to connect to the system and sewer rentals*fn1 would be charged as of January 1, 1977. Marnickas did not connect to the system and now refuses to pay the sewer rentals.

[ 67 Pa. Commw. Page 119]

Our scope of review is limited to determining whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the Authority's duties and functions. Blumenschien v. Page 119} Pittsburgh Housing Authority, 379 Pa. 566, 573, 109 A.2d 331, 335 (1954).

Marnickas contends that the Authority has no authority to collect charges for a service that is not adequate, safe, and reasonable. Since his property cannot be connected to the sewer system by a gravity flow, but instead requires him to install a sump pump, Marnickas argues that the system was unreasonably constructed and is of no value to him.

Section 4 of the Municipal Authorities Act of 1945*fn2 grants a Municipal Authority the power to determine "by itself exclusively the services and improvements required to provide adequate, safe, and reasonable service." The Act specifically vests the courts of common pleas*fn3 with exclusive jurisdiction over suits which question the adequacy, safety, and reasonableness of the Authority's services.

We agree with the court below that Marnickas failed to meet his burden of proving the service to be unreasonable. Yezioro v. North Fayette County Municipal Authority, 193 Pa. Superior Ct. 271, 164 A.2d 129 (1960). Marnickas has presented no evidence which would demonstrate that his cost of connecting to the sewer system would be prohibitive or that the costs incurred from installing a sump pump*fn4 would far

[ 67 Pa. Commw. Page 120]

    exceed the costs incurred by other users who can connect by gravity flow.*fn5

Marnickas further contends that the sewer service is inadequate, unsafe, and unreasonable because, as constructed, it is of no value to him or his property. Value must relate to the services actually consumed or readily available. Patton-Ferguson Joint Authority v. Hawbaker, 14 Pa. Commonwealth Ct. 402, 322 A.2d 783 (1974). Marnickas argues that the services were not "readily available" since no service would be available to him absent substantial changes to his property. He fails, however, to elaborate what those changes must be; hence, we hold that the system, as constructed, is readily accessible to his property.

There is a rebuttable presumption that a property is benefitted by the construction of an adjacent sewer system. Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964). Marnickas has not presented sufficient evidence to rebut this presumption. His property is accessible to the sewer system, notwithstanding that a sump pump is required for connection to it.

Marnickas must pay the sewer rentals even though he has not tapped into the sewer system. We hold the reasoning in Coudriet v. Township of Benzinger, 49 Pa. Commonwealth Ct. 275, 411 A.2d 846 (1980), to be controlling:

[T]o allow individual property owners to elect not to tap into a sewer system accessible to it would circumvent the statutory purpose behind the imposition of sewer rentals and undermine the financial soundness of a municipality's sewer system. The rental charges are utilized to

[ 67 Pa. Commw. Page 121]

    meet many fixed costs incurred by the township; costs such as operation expenses, maintainance, repair, inspection and depreciation which are incurred whether or not a particular individual is tapped into the sewer system.



The order of the Court of Common Pleas of Schuylkill County, No. J-161, dated November 24, 1980, is affirmed.

Judge Mencer did not participate in the decision in this case.



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