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ORDINANCE NUMBER 85-2 BOROUGH FRACKVILLE (02/10/87)

decided: February 10, 1987.

IN RE: ORDINANCE NUMBER 85-2 OF THE BOROUGH OF FRACKVILLE, SCHUYLKILL COUNTY, PENNSYLVANIA. BOROUGH OF ASHLAND, APPELLANT


Appeal from the Order of the Court of Common Pleas of Schuylkill County in the case of In Re: Ordinance Number 85-2 of the Borough of Frackville, Schuylkill County, Pennsylvania, No. S-319-1985.

COUNSEL

Jens H. Damgaard, with him, Jan P. Paden, Rhoads & Sinon, and S. John Price, Jr., for appellant.

Paul Domalakes, with him, John E. Domalakes, Rubright, Domalakes, Troy & Miller, for appellees.

Judges MacPhail and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 103 Pa. Commw. Page 574]

The Borough of Ashland (Ashland) appeals from an order of the Court of Common Pleas of Schuylkill County which sustained the preliminary objections of the Borough of Frackville (Frackville) to a complaint filed by Ashland. We affirm.

Ashland commenced its action under the authority of Section 1010 of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46010, which provides that "[c]omplaint as to the legality of any ordinance or resolution may be made to the court." Ashland's complaint avers a series of defects in the enactment of Ordinance No. 85-2 on February 1, 1985 by Frackville. The ordinance authorizes and directs the condemnation of lands above and adjacent to lands owned and used by Ashland as a watershed and reservoir. Under the ordinance, the condemned lands would then be used for constructing a sewage treatment plant.

The Court of Common Pleas granted Frackville's preliminary objection in the nature of a demurrer on the ground that Ashland lacked standing to sue.*fn1

[ 103 Pa. Commw. Page 575]

Our scope of review of a challenge to the sustaining of a preliminary objection in the nature of a demurrer is limited. All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted. Judge v. Allentown and Sacred Heart Hospital Center, 506 Pa. 636, 487 A.2d 817 (1985). The question we are presented with is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Id.

We begin our analysis by noting that the ordinance attacked here is very narrow indeed. It merely provides for the condemnation by Frackville of the land in question. While it is true that the ordinance states that the land will be used for the construction of a sewage treatment plant, the ordinance does not provide for that construction. It is clear that Ashland is really objecting to the possibility of the future use of the land, not its acquisition.

Section 303 of the Eminent Domain Code, Act of June 22, 1964, P.L. 84, as amended, 26 P.S. § 1-303, states that "[i]t is intended by this act to provide a complete and exclusive procedure and law to govern all condemnations of property for public purposes and the assessment of damages therefor. . . ." It is clear that condemnation proceedings concern themselves only with the acquisition of land by condemnors and how much should be paid to condemnees.

Ashland objects to the ordinance because it is fearful that a sewage treatment plant constructed on the land proposed to be condemned would damage its water supply. If the construction of a sewage treatment plant commences or if the operation thereof causes damage to Ashland, that municipality may ...


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