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MCCANDLESS TOWNSHIP SANITARY AUTHORITY v. COMMONWEALTH PENNSYLVANIA (02/20/85)

decided: February 20, 1985.

MCCANDLESS TOWNSHIP SANITARY AUTHORITY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania, Department of Transportation v. McCandless Township Sanitary Authority, No. GD 82-2627.

COUNSEL

Edmund B. Smith, Jr., with him, William H. Markus, Markus, Riethmuller & Smith, for appellant.

Jeffrey L. Giltenboth, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for appellee.

Judges Williams, Jr. and Doyle and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Doyle

[ 87 Pa. Commw. Page 595]

McCandless Township Sanitary Authority (Authority) appeals from the order of the Court of Common Pleas of Allegheny County which denied its authority to enforce a lien to recover an assessment for a sewer improvement against property owned by the Pennsylvania Department of Transportation (DOT).

The property subject to the present dispute was purchased by DOT on November 12, 1976. Prior to the date of purchase, on April 4, 1974, the Authority passed a resolution authorizing the construction of a sanitary sewer system in McCandless Township and surrounding area. The resolution contained a provision which stated:

[W]hen in the opinion of the authority solicitor, all or a portion of the cost of said sewers

[ 87 Pa. Commw. Page 596]

    may be legally assessed against the properties benefited, improved or accommodated thereby, the Authority [shall] charge the assessable portion of said cost against the properties benefited, improved or accommodated thereby, to the extent of such benefits in accordance with the provision of Paragraph r, Subdivision (B) of Section 4 of the Municipality Authorities Act of 1945, as amended.*fn1 . . .

On February 5, 1980, the Authority, acting pursuant to this provision, petitioned for the appointment of a Board of Viewers "to assess any benefits or damages arising by reason of construction of the sanitary sewers. . . ." On January 18, 1982, the Board of Viewers filed a final report which assessed benefits against the property owned by DOT in the amount of $900.00. The Authority filed a municipal claim, asserting a lien against the subject property in the amount of the assessment. DOT brought an appeal from the Viewers' Report, asserting that the Authority had no power to assess benefits against the Commonwealth without its consent. After a trial without a jury, the Allegheny County Court of Common Pleas affirmed the assessment of the Board of Viewers, but refused to order its enforcement against DOT. The court reasoned that the assessment against the property was valid despite ownership by DOT, because a lien for the assessment had attached at the time of the original resolution authorizing construction in 1974, prior to purchase by DOT. The court concluded that although DOT purchased the property subject to the valid lien, the Authority lacked power to enforce the lien until such time as the property reverted to private ownership. The Authority filed exceptions to

[ 87 Pa. Commw. Page 597]

    the trial court's order and now appeals to this Court from the ...


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