Carroll Tp. Authority v. Municipal Authority of City of Monongahela
| Decision Date | 29 January 1992 |
| Parties | CARROLL TOWNSHIP AUTHORITY et al., Appellants, v. MUNICIPAL AUTHORITY OF THE CITY OF MONONGAHELA and the City of Monongahela, Appellees. |
| Court | Pennsylvania Commonwealth Court |
George M. Lynch, for appellant, Carroll Tp. Authority.
Herman J. Bigi, for appellant, The Township of Carroll.
Richard F. Rinaldo, for appellees.
Before McGINLEY, and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.
The present action in mandamus is yet another battle in a long legal war between the Municipal Authority of the City of Monongahela (Mon Authority) and the City of Monongahela (City) on one side and the Township of Carroll and its supervisors and treasurer (Township) and the Carroll Township Authority and its members (Carroll Authority) on the other. The dispute arises out of a sewage treatment agreement among the parties signed on May 1, 1971 (1971 Agreement). On December 3, 1987, Judge Thomas J. Terputac of the Court of Common Pleas of Washington County (trial court) issued a final order after trial (1987 order), which determined that the Carroll Authority and the Township jointly and severally owed $727,164.74 under the 1971 Agreement and which ordered them to perform specifically under the terms of that contract. Mon Authority and the City filed a complaint in mandamus on December 19, 1989, seeking a writ ordering Carroll Authority to pay amounts due and owing pursuant to the 1987 order or, in the alternative, compelling the Township to levy a special tax sufficient to meet the obligation.
The 1971 Agreement, arrived at after approximately two years of negotiation, provided that Mon Authority would accept and transport sewage from most of the Township and treat it at Mon Authority's sewage treatment facility. The system in the City is of an older type that combines storm sewage and sanitary sewage, with a permitted capacity of 1,500,000 gallons per day (gpd). The Township and Carroll Authority proposed to deliver only sanitary sewage from its system, which was yet to be built. The 1971 Agreement permitted the Township and Carroll Authority to deliver a "contract load" of up to 700,000 gpd, nearly half the capacity of the facility, at an initial rate of $1.378 per 1000 gallons, and it provided also that Mon Authority could not stop the flow from the Township. To address concerns of the City and Mon Authority that their system could be swamped by overruns, the 1971 Agreement fixed a charge of $2.00 per 1000 gallons for the next 21,000 gallons over the contract load amount, and $10.00 per 1000 gallons beyond that. To address concerns of the Township and Carroll Authority that its sanitary sewage not be overmeasured after mixing with the combined flow in the Mon Authority system, the parties agreed that the flow from the Carroll Authority sewers would be metered at four vaults located at points where that sewage entered the Mon Authority system. Carroll Authority was to receive monthly statements of services rendered. The 1971 Agreement also provided for the periodic inspection of the metering systems, and calibration of the devices that recorded daily flow amounts, whenever they were found to be more than 2% inaccurate.
The Carroll Authority system was connected in 1978. The Township and Carroll Authority paid charges under the 1971 Agreement until 1981, although serious problems of inflow and infiltration of groundwater into the system were detected from the time it became operational. 1 In September of 1981 Carroll Authority unilaterally ceased paying charges for flows over the contract load of 700,000 gpd.
In January of 1982 Mon Authority and the City filed an action in assumpsit to collect amounts claimed to be due and owing for overrun charges. In August of 1983 Carroll Authority and the Township instituted an action against Mon Authority to set aside the 1971 Agreement, contending that the rates relating to overruns were not uniform and reasonable as required by Section 4B(h) of the Municipality Authorities Act of 1945, Act of May 2, 1945, P.L. 382, as amended, 53 P.S. § 306B(h). Mon Authority counterclaimed, and the trial court consolidated the two civil actions.
After an extensive non-jury trial the trial court issued an opinion and two orders on June 11, 1987. Those orders (1) granted the relief requested in the complaint of the City and Mon Authority and ordered the Township and Carroll Authority to pay the $727,164.74 mentioned above for past due charges from September of 1981 through March 31, 1987, and (2) dismissed the complaint of Carroll Authority and the Township and ordered specific performance and directed payment of all rates and charges for sewage treatment service under the terms of the 1971 Agreement. 2 Following post-trial motions the court issued a final order on December 3, 1987, affirming the previous orders. On appeal Carroll Authority and the Township challenged the validity of the rates for overruns. This court affirmed the orders of the trial court. Municipal Authority of the City of Monongahela v. Carroll Township Authority, 123 Pa.Commonwealth Ct. 615, 555 A.2d 264 (1989). The Pennsylvania Supreme Court denied petitions for allowance of appeal. 524 Pa. 599, 601, 568 A.2d 1249, 1250 (1989).
Despite the affirmance of the trial court's orders by this court and the denial of allowance of appeal by our Supreme Court, the Township and Carroll Authority refused to pay the past due charges or to pay ongoing charges for overruns. On December 19, 1989, Mon Authority and the City commenced an action in mandamus to compel payment in compliance with court orders and the 1971 Agreement; they alleged that past due charges amounted to $1,301,495.68 as of December 25, 1989. They also filed a motion for peremptory judgment. After arguments, the trial court entered an opinion and order on May 29, 1990, granting the motion for peremptory judgment and the issuance of a writ of mandamus to compel payment but directing the holding of a hearing "so that a fair and equitable allocation of the burden" of such payment could be made. Order of May 29, 1990, at 10; Reproduced Record (R.R.) at 118a. The Township and Carroll Authority filed a petition to open peremptory judgment on June 7, 1990, on which a hearing was set. 3
After hearings the trial court denied the petition to open peremptory judgment by order of September 26, 1990. On October 1, 1990, the trial court issued a writ of mandamus directing Carroll Authority and the Township to pay current amounts under the 1971 Agreement and to pay past due amounts of $1,504,717.46, according to a specified schedule of payments over a period of eight years, a schedule to which Mon Authority and the City agreed. The Township and Carroll Authority appealed from both orders, and this court consolidated the appeals for argument and disposition. The trial court issued an opinion on November 26, 1990, further clarifying the reasons for the orders of September 26 and October 1, 1990.
On this appeal, Carroll Authority contends that the court erred in issuing the writ in that: (1) the order was based on insufficient proof of the amount owed, because certain of the charges were established only by an objected-to affidavit; (2) mandamus will not lie to compel enforcement of the obligations created by the 1987 judgment, because performing those obligations is more than a ministerial duty, and the order exceeded the scope of mandamus authority by specifying terms and amounts of payments. Also, both Carroll Authority and the Township assert that the trial court misapplied the doctrines of collateral estoppel and/or res judicata in refusing to permit Carroll Authority's expert witness to testify as to alleged faulty design, installation, housing and equipment for metering the sewage flow from the Carroll Authority system.
First we shall address the contention, tantamount to a demurrer, that mandamus will not lie to compel enforcement of a judgment entered against municipal defendants. In Delaware River Port Authority v. Thornburgh, 508 Pa. 11, 20, 493 A.2d 1351, 1355 (1985), our Supreme Court explained the nature of mandamus as follows:
Mandamus will only lie to compel official performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a lack of any other adequate and appropriate remedy at law.... Further, this Court has stated that mandamus is proper to compel performance of legal duties, even where the existence and scope of such duties must be found and defined in the course of the mandamus action itself. (Citations omitted.) [ 4
Carroll Authority advances the remarkable argument that Brief for Appellant Carroll Township Authority at 16. Carroll Authority appears to conclude that, because the Pennsylvania Rules of Civil Procedure providing for execution of judgments specifically exempt judgments against the Commonwealth, a political subdivision or an authority, Pa.R.C.P. No. 3101(a), no procedure is available by which judgments against such bodies may be enforced, therefore payment is discretionary.
The Township is a township of the second class. Section 907 of The Second Class Township Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65907, provides that where a township's debts exceed the tax collections for any year, the court, after ascertaining the amount,
may, by a writ of mandamus, direct the township supervisors, by special taxation, to collect an amount sufficient to pay the same. If the amount of such indebtedness is so large as to render it inadvisable...
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