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REQUEST BY HEMPFIELD TOWNSHIP FOR APPOINTMENT A BOARD VIEWERS REGARD TO PROPERTY SAMUEL SCOTT ROUTE 30 WEST NO. 1 WATER DISTRICT. HEMPFIELD TOWNSHIP (12/19/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 19, 1986.

IN RE: REQUEST BY HEMPFIELD TOWNSHIP FOR APPOINTMENT OF A BOARD OF VIEWERS IN REGARD TO THE PROPERTY OF SAMUEL SCOTT IN THE ROUTE 30 WEST NO. 1 WATER DISTRICT. HEMPFIELD TOWNSHIP, APPELLANT

Appeal from the Order of the Court of Common Pleas of Westmoreland County, in case of In Re: Request by Hempfield Township for Appointment of a Board of Viewers in regard to the property of Samuel Scott in the Route 30 West No. 1 Water District, No. 6561 of 1984.

COUNSEL

Thomas J. Godlewski, with him, Daniel J. Hewitt, for appellant.

Dennis J. Gounley, with him, Emmett C. Boyle, Jr., for appellee, Samuel Scott.

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

Author: Blatt

[ 102 Pa. Commw. Page 515]

Hempfield Township (Township), a second class township, appeals the order of the Court of Common Pleas of Westmoreland County (trial court), which sustained the preliminary objections of Samuel Scott, an owner of a certain property situate in the Township, and which dismissed the Township's petition for the appointment of a board of viewers to determine the benefit*fn1 to Scott's property from a municipal water line which had been installed across the front of the property.

[ 102 Pa. Commw. Page 516]

By resolution of October 30, 1979, the Township Board of Supervisors (Board) created a water district, Route 30 West, No. 1 Water District, to provide municipal water service to an area encompassing Scott's property. This resolution provided that the water line would be installed by the Municipal Authority of Westmoreland County, but that the assessments to collect the installation costs would be made by the Township, purportedly under either the "front footage" method or the "benefit" method.

The Township subsequently resolved to utilize the "front footage" method and then filed an action in the common pleas court to enforce a municipal lien against Scott's property for the water line installation, calculated under the "front footage" method. A jury trial was held and the jury returned a verdict finding that, while Scott's property enjoyed a benefit because of the increase in its value caused by the installation of the water line, the property, nevertheless, is rural in character and, hence, not subject to a "front footage" assessment.*fn2 The Township did not appeal this verdict. Instead, the Board then resolved to assess Scott's property under the "benefits" method, and the Township then filed the petition for the appointment of a board of viewers from which the present appeal arises.

[ 102 Pa. Commw. Page 517]

Scott preliminarily objected to the petition for the appointment of a board of viewers on the grounds that the Code expressly prohibits the Township from utilizing both assessment methods within the same water district, and also arguing that the doctrine of res adjudicata precluded relitigation of the assessment.*fn3

In reviewing the trial court's order, we must determine if any doubt exists as to whether or not the preliminary objections were properly sustained, resolving such doubt, if any, by overruling the said objections. Monti v. City of Pittsburgh, 26 Pa. Commonwealth Ct. 490, 364 A.2d 764 (1976).

Before this Court, the Township contends that combining assessment methods within a single municipal service district is an accepted technique in this Commonwealth, relying on Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964) and Bern Township Authority v. Hartman, 69 Pa. Commonwealth Ct. 420, 451 A.2d 567 (1982). The Township acknowledges that these cases involved municipal authorities, but it nonetheless argues that the statutory language empowering those authorities to use both assessment methods simultaneously is similar in nature to Section 1610 of the Code. We disagree.

In Whitemarsh, our Supreme Court interpreted Section 4B of the Municipality Authorities Act of 1945,*fn4

[ 102 Pa. Commw. Page 518]

    as permitting municipal authorities to employ both assessment methods within a single district. The Whitemarsh court, however, recognized that, as an agent of the state government, not of the incorporating municipalities, a municipal authority's assessment powers are those conferred by the legislature. 413 Pa. at 333, 196 A.2d at 846. In reviewing subsections (r) and (s) of Section 4B, the Whitemarsh court held that "[n]o restricting words appear, such as are present in the Township Code [the Second Class Township Code]; the disjunctive 'or,' which would restrict the simultaneous use of both methods is not present." Id. at 334, 196 A.2d at 846 (emphasis added).*fn5 We are, therefore, in agreement

[ 102 Pa. Commw. Page 519]

    with Scott that the trial court correctly ruled that, under the terms of the Code, the Township is limited to one or the other of the available assessment methods, and cannot use both within the same district.

Inasmuch as we conclude that the trial court correctly sustained the preliminary objections on the above-stated basis, we need not review the other ground upon which the trial court relied. Accordingly, we will affirm the trial court's order.

Order

And Now, this 19th day of December, 1986, the order of the Court of Common Pleas of Westmoreland County is affirmed.

Disposition

Affirmed.


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