Appeals from the Order of the Court of Common Pleas of Berks County in cases of Bern Township Authority v. Edward G. Hartman and John W. Hartman, No. 8 October Term, 1977; No. 2 June Term, 1976 M.L.D.; No. 825 August Term, 1977, J.D.; and No. 180 July Term, 1981 J.D., Scire Facias sur Municipal Lien.
Brett A. Huckabee, DeSantis, Huckabee, Weiler & Schmehl, for Bern Township Authority.
Calvin E. Smith, with him Kurt H. Decker, Stevens & Lee, for Edward G. Hartman and John W. Hartman.
William H. Markus, with him Edmond B. Smith, Jr., Markus, Riethmuller & Smith, for Amicus Curiae, Pennsylvania Municipal Authorities Association.
Judges Rogers, Craig and MacPhail, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by Judge Craig.
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This case has been reargued before the court en banc because it poses these two important questions:
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. When a municipality authority proceeds to recover the cost of a project by a combination of front-foot assessments and benefit assessments, is a total recovery in excess of the project's assessable construction costs permitted under the law?
2. If the authority's total recovery cannot exceed the assessable construction costs, may property owners challenge the benefits award of a board of viewers, on that substantive ground, by affidavit of defense to a scire facias sur municipal claim, or are there other remedies which must be pursued?
Resolution of these questions may have far-reaching significance because, as pointed out by counsel for amicus curiae,*fn1 Pennsylvania has more than 2300 active municipality authorities, with over $7 billion dollars of outstanding bonds, operating in 66 of our counties, to provide sewer service to six million citizens and water service to 3.3 million.
Bern Township Authority*fn2 along with Edward G. Hartman and John W. Hartman (landowners)*fn3 have appealed the opinion, order and judgment*fn4 of the
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Court of Common Pleas of Berks County in an action of scire facias sur municipal claim for water main improvements. The court vacated a jury verdict in favor of the landowners, denied the Authority's motion for new trial or judgment n.o.v., and permitted the landowners to proceed to trial on a nunc pro tunc appeal from the board of view's benefit assessment determination.
In 1973, after installing a water distribution system in Bern Township, the Authority used a combined approach of assessing charges for the cost of the system. The Authority levied a "foot front" charge*fn5 against the majority of property owners, then filed a petition for the appointment of viewers to determine the benefit assessments against four remaining property owners, including the landowners.*fn6
In its report assessing the landowners $35,000 for the benefit to their property, the board assumed that the Authority proceeded properly in its front-foot assessments, noting the limitation in Section 4(B) of the Municipality Act*fn7 that "there shall not be charged against the properties benefited, improved or accommodated . . . an aggregate amount in excess of the estimated cost as approved by the municipality." The viewers stated that any party assessed would have the right to "petition the Court to adjust all of the assessments
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proportionately" should the aggregate assessments total in excess of the "estimated cost."
Both the Authority and the landowners filed "exceptions," "objections" and "appeals" from the viewer's report, the landowners contending, among other things, that the aggregate assessments exceeded the lawful maximum. The common pleas judge, in referring the matter back to the viewers, overruled that objection.*fn8
On April 19, 1976, the viewers filed another report affirming the earlier assessment. No party appealed from the court's ...