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BOROUGH SEWICKLEY WATER AUTHORITY v. JAMES A. MOLLICA (07/29/88)

decided: July 29, 1988.

THE BOROUGH OF SEWICKLEY WATER AUTHORITY, APPELLANT
v.
JAMES A. MOLLICA, JR., AND SHEILA MARS MOLLICA, HIS WIFE, APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of James A. Mollica, Jr. and Sheila Mars Mollica, his wife v. The Borough of Sewickley Water Authority, No. G.D. 84-9168.

COUNSEL

Gary H. McQuone, with him, Craig E. Frischman, Buchanan Ingersoll Professional Corporation, for appellant.

James M. Mollica, with him, George I. Buckler, and Thomas A. Lazaroff, Meyer, Darragh, Buckler, Bebenek & Eck, for appellees.

Judges Craig and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 118 Pa. Commw. Page 242]

The Borough of Sewickley Water Authority appeals an order of the Court of Common Pleas of Allegheny County, reversing a determination of the authority and awarding James A. Mollica and Sheila Mars Mollica (Mollica) $23,037.94 with interest.

The issue in this appeal is whether the authority's past failure to require an intervening landowner to install a waterline extension that complied with authority's own rules and regulations, and its refusal to reimburse Mollica for the cost of constructing a waterline extension that complied with the authority's rules, constitutes an abuse of discretion by the authority. Because we conclude

[ 118 Pa. Commw. Page 243]

    that the authority's actions did amount to an abuse of discretion, we affirm.

The facts of the case are undisputed. On June 24, 1983, Mollica purchased an undeveloped ten-acre parcel of property on Blackburn Road in Sewickley Heights. The Sewickley Heights Zoning Ordinance requires a single family unit to be built on lots of a minimum of five acres. Mollica divided the property into two five-acre lots, sold one of the lots and built a single family residence on the other.

Before the subdivision and construction of the dwellings, Mollica requested water service from the authority. The authority's waterline ended approximately 2000 feet from the Mollica property. The authority had permitted an intervening property owner, Amoto, to connect a 1380 foot, one-inch pipe, to the authority's waterline in order to receive service, despite the authority's regulation that requires extensions of waterlines to be constructed with six-inch pipes. Mollica requested that the authority construct a six-inch line to provide service to the Mollica property, and offered to pay for the cost of the line from the point of the Amoto connection. The authority refused and stated that, although it would provide service, Mollica would have to construct and pay the entire cost of the connection with the existing waterline, but that Mollica, like Amoto, could install a one-inch line.

Mollica constructed, at Mollica's own expense, a six-inch connection with the waterline, and filed a suit in common pleas court to recover the cost of construction from the authority. Following a non-jury trial, the trial court entered judgment in favor of Mollica, in the amount of $23,037.94 plus interest, the cost of the construction of the extension except for the 616 feet of the extension from the Amoto service connection to Mollica's service connection. The trial court denied the authority's Motion for Post-Trial Relief, concluding that

[ 118 Pa. Commw. Page 244]

    the authority constituted a public utility under the Public Utility Code (Code), and therefore was required to pay for the extension. The trial court also concluded that, regardless of whether the authority constituted a public utility, the authority had abused its discretion in refusing to reimburse Mollica for the cost of the extension attributable to the authority's failure to require Amoto to comply with the authority's requirement that all extensions of the waterline be constructed with six-inch pipe.

Because of the broad discretionary powers given to municipal authorities, our scope of review in reviewing action of a municipal authority is limited to a determination of whether the authority has committed an abuse of discretion. Council of Plymouth Township v. Montgomery County, 109 Pa. Commonwealth Ct. 616, 623, 531 A.2d 1158, 1161 (1987), quoting Flaherty v. Allegheny Port Authority, 450 Pa. 509, 516-17, 299 A.2d 613, 617-18 (1973). Moreover, an abuse of discretion occurs when an authority engages in a manifestly ...


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