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LCN REAL ESTATE v. BOROUGH WYOMING (06/23/88)

decided: June 23, 1988.

LCN REAL ESTATE, INC. ET AL., APPELLANTS
v.
BOROUGH OF WYOMING, APPELLEE



Appeal from the Order of the Court of Common Pleas of Luzerne County, in the case of LCN Real Estate, Inc., Wyoming Historical and Geological Society, Wyoming Plaza Realty Company, Midway Associates, Dr. Joseph Lapatofsky, John Schifano, Joan Mesaros, James Pizano, Marvell Kitchens, Inc., Francis Capitano, Christy Morris, Baltimore Life Insurance Co. v. Borough of Wyoming, No. 129-E of 1986.

COUNSEL

Bruce J. Phillips, with him, Jerome L. Cohen, for appellants.

Susan Cutright, with her, George A. Spohrer, Hourigan, Kluger, Spohrer & Quinn, P.C., for appellee.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig. Judge Colins dissents.

Author: Craig

[ 117 Pa. Commw. Page 261]

LCN Real Estate, Inc. (LCN) and other appellants*fn1 (collectively, the property owners or the appellants) appeal from two orders, by two different judges of the Court of Common Pleas of Luzerne County, that sustained the preliminary objections of the Borough of Wyoming (borough) and dismissed LCN's complaint in equity seeking to enjoin the borough from enforcing an ordinance providing for the assessment of certain amounts against LCN's property for the cost of sewer construction and to prevent the borough from filing liens based on those assessments.

[ 117 Pa. Commw. Page 262]

Because there is now no dispute concerning the lack of legal basis for the order on preliminary objections,*fn2 the sole remaining issue is whether the trial court properly dismissed the complaint in equity based on a conclusion that the property owners had not exhausted available adequate statutory remedies at law.

History

Because this case comes to us on appeal of a ruling on jurisdiction made before the trial court took evidence, no facts have yet been established apart from some details relating to the construction of the system that the borough admitted in its answer to the motion for a temporary injunction. LCN's complaint avers that in 1974 the Department of Environmental Resources (DER) directed the borough to build or expand a public sewer system in an area encompassing a commercial district along Wyoming Avenue in the southern part of the borough. Appellants' properties are located in this area. The borough took no action until 1983, when it entered into an agreement with DER under which the

[ 117 Pa. Commw. Page 263]

    borough was to construct the system. The borough built the system at a cost of some $625,000.

On July 14, 1986, the borough adopted an ordinance that "in effect stated the completion of a public sewer system in the area of [appellants'] property, which ordinance adopted tappage fees and front foot assessment costs of $140.00 a front foot." (Complaint para. 7; Reproduced Record 5a). The borough assessed the total cost of the project against forty-four business owners and three or four homeowners pursuant to the ordinance. LCN's individual assessment, of which it received notice by letter dated October 1, 1986, was $17,676.40. Payment was due to the borough in sixty days, with a two percent discount if made in that period, although the borough offered an optional plan under which payment could be made in installments over ten years at an interest rate of ten per cent.

According to the complaint, the borough did not fix by previous ordinance or other legal means the places where the sewer system was to be laid and the manner of construction, nor did it publish a proposed ordinance listing the assessment charge. The property owners allege that the borough did not take steps to reduce the cost of the project in that the borough failed to act during the period between the first direction from DER in 1974 and the 1983 agreement, failed to submit proposals to federal and state authorities for grants or loans, and applied grants from the state intended solely for sewer construction to other purposes. They also allege that the Borough's failure to extend the system to unserved areas has resulted in an excessive ratio of cost to benefit for those properties assessed. Finally, the complaint avers that some property owners with front footage along the sewer course are not being similarly assessed.

[ 117 Pa. Commw. Page 264]

On November 25, 1986, LCN filed its complaint in equity seeking to enjoin the borough from enforcing the ordinance of July 14, 1986, against LCN, to enjoin the effect of the assessment notice of October 1, 1986, as applied to LCN, and to enjoin the borough from asserting at law any municipal claim or lien against LCN for failure to pay the assessment pending a determination of the validity of the ordinance and of the assessment. On the same date, LCN filed a motion for a special or temporary injunction to enjoin the borough from applying or enforcing the ordinance or the assessment, in particular from placing a municipal lien against LCN's property, pending a decision on the merits of the equity action.

The borough filed preliminary objections to the complaint and an answer to the motion for special or temporary injunction on December 1, 1986. Beginning on December 18, 1986, the borough filed municipal claims against the property owners for failure to pay the assessments. The property owners filed praecipes and rules against the borough to file writs of scire facias sur municipal claim on January 2, 1987, and the borough secured issuance of the writs on January 16. On February 2, 1987, the property owners filed affidavits of defense to the writs, raising the same substantive and procedural ...


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