City of Philadelphia v. Northwood Textile Mills, Inc.

• Decision Date: 16 March 1959
• Parties: CITY OF PHILADELPHIA v. NORTHWOOD TEXTILE MILLS, INC., Appellant.
• Court: Pennsylvania Supreme Court

149 A.2d 60

395 Pa. 112

CITY OF PHILADELPHIA v. NORTHWOOD TEXTILE MILLS, INC., Appellant.

Supreme Court of Pennsylvania.

March 16, 1959.

Richard R. Ransom, James C. Crumlish, Jr., Davis Marshall & Crumlish, Philadelphia, for appellant.

Levy Anderson, Asst. City Solicitor, James L. Stern, Deputy City Solicitor, David Berger, City Solicitor, Karl I. Schofield James L. J. Pie, Asst. City Solicitors, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN and BOK, JJ.

COHEN Justice.

The two questions for our determination are (1) whether or not the City of Philadelphia is estopped from asserting its statutory lien for unpaid water and sewer rents because it failed to notify the owner of the real estate (Northwood Textile Mills, Inc.) of the delinquency as required by Title 19, Section 1606(3) of the Code of General Ordinances, and (2) is it also estopped from asserting its lien where the City negotiated only with the tenant for payments of the delinquent water and sewer rents?

A lien was filed against the defendant-property owners for excess water and sewer rents pursuant to the Act of May 16, 1923, P.L 207, as amended, 53 P.S. § 7107. Subsequently, an amended Writ of Sci Fa was issued and served on defendant to which defendant filed an affidavit of defense and counterclaim. The City filed a motion for judgment for want of sufficient affidavit of defense and also preliminary objections to the defendant's counterclaim. After both motions were sustained the defendant took this appeal from the judgment of the lower court.

It is undisputed that the services were supplied by the City; that the unpaid water charges amount to $21,938.73, and that a lien was filed against the premises pursuant to the Act of 1923.

The Act of 1923 creates a remedy for the collection of delinquent water and sewer rents by providing that: 'The lien * * * for water rates * * * or sewer rates * * * shall exist in favor of, and the claim therefor may be filed against the property thereby benefited by, the municipality extending the benefit. * * *' The action is one in rem, Girard Trust Corn Exchange Bank v. Ermilio, 1955, 178 Pa.Super. 316, 319, 115 A.2d 922, and is enforceable against the property benefited. No personal liability can be aserted by the City against either tenant or owner.

Title 19, Section 1606(3) of the Code of General Ordinances of the City of Philadelphia provides: '(3) If any water or sewer rent remains unpaid for one year after the bill has been rendered, the Department shall serve notice upon the delinquent property owner and if the rent, with penalty and interest thereon, is not paid within ten days after such service, the Department may, in its discretion, deprive the premises of water until the amount of the bill with penalty and interest is paid.'

Appellant contends that the purpose of this section is to impose on the City a requirement of due notice before they can either shut off the water or assert a statutory lien for delinquent water and sewer rents. This contention is devoid of merit. Obviously, the purpose of Title 19, Section 1606(3) is to provide the City with an additional remedy if the water user refuses to pay the delinquent bills. In pursuit of that additional remedy and before water service may be discontinued notice is required. We do not find any relationship between this section and the power of the municipality to assert a statutory lien against the premises for the purposes of collecting delinquent water and sewer rates. Both remedies are separate, distinct, and alternative; the election of one does not preclude the other. It is clear, therefore, that the purpose of Title 19, Section 1606(3) was to authorize the Department to shut off the water in order to give the Department a lever which would enable it to force the payment of past due water rents as well as prevent the accumulation of a larger delinquency. The failure of the City to use this facility does not affect the enforcement of the lien since neither the legislature nor the City Council made the legislation interdependent. ^[1]

The remaining contention of the appellant that the City may not enforce a statutory lien for excess water and sewer rent because the City negotiated and agreed with the tenant alone for the payment of delinquent water and sewer rent, and hence, is estopped from enforcing the lien is more than adequately answered in the following excerpts from the Opinion of Judge Doty filed in the court below:

'There can be little doubt that an owner of real property is aware, or should be aware, that when water is being...