Opinion
September 12, 1962.
November 15, 1962.
Municipal Claims — Sewers — Assessments — Front foot rule — Municipal authority having only one sewer district — The Second Class Township Code.
In an action of scire facias sur municipal lien brought by plaintiff authority to enforce a lien arising from construction of a sanitary sewer, in which it appeared that plaintiff, a municipal authority, whose entire operations were contained within only one duly constituted sewer district, first adopted a resolution which provided for the assessment of sewer construction costs on the front foot rule, and, subsequently, adopted a supplemental resolution providing for assessment according to the extent of benefits as determined by a jury of view where, in the opinion of the authority, an assessment by the front foot rule could not legally be made or would not adequately measure the benefit to any property; that plaintiff sent a bill to defendants computed, in form, on the front foot rule but actually in excess of the amount which would be due under that rule; and that the court below, holding that under The Second Class Township Code of May 1, 1933, P.L. 103, as amended, the authority, having created only one sewer district, could not elect, at its discretion, to apply both methods of assessment, that the supplemental resolution providing for assessment under either the front foot rule or the benefit rule was therefore illegal, and that assessments could be made against defendants only pursuant to the first resolution, providing for the front foot rule, granted defendants' motion for judgment on the pleadings and ordered stricken off the writ of scire facias; it was Held that the order of the court below should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 230, Oct. T., 1962, from order of Court of Common Pleas of Montgomery County, Sept. T., 1960, No. 387, in case of Whitemarsh Township Authority v. George Elwert et ux. Order affirmed.
Same case in court below: 28 Pa. D. C. 2d 368.
Scire facias sur municipal claim.
Order entered granting defendants' motion for judgment on the pleadings and directing that writ be stricken off, opinion by DANNEHOWER, P.J. Plaintiff appealed.
Elmer L. Menges, for township, appellant.
Richard S. Lowe, with him Fox, Differ, DiGiacomo Lowe, for appellees.
Argued September 12, 1962.
The order of the court below is affirmed on the opinion of President Judge DANNEHOWER of the Court of Common Pleas of Montgomery County, as reported in 28 Pa. D. C.2d 368.