Municipal Authority of Upper St. Clair Tp., Allegheny County, Application of

• Decision Date: 05 October 1962
• Citation: 184 A.2d 695,408 Pa. 464
• Parties: In re Application of the MUNICIPAL AUTHORITY OF the TOWNSHIP OF UPPER ST. CLAIR, ALLEGHENY COUNTY, Pennsylvania, for the Appointment of Viewers to Ascertain the Costs, Damages and Expenses and to Assess the Benefit Arising from the Construction of Sanitary Sewers and Appurtenances In and Under Certain Township Roads and Streets and Through, In or Under Private Lands as Set Forth and Described In a Resolution of the Said Authority, and for Private Property Thus Taken, Used and Appropriated for the Construction of Said Sanitary Sewers In Trotwood-North District of the McLaughlin Run Drainage Area of Upper St. Clair Township. Appeal of Elza Jane SIMON.
• Court: Pennsylvania Supreme Court

Page 695

184 A.2d 695

408 Pa. 464

In re Application of the MUNICIPAL AUTHORITY OF the TOWNSHIP OF UPPER ST. CLAIR, ALLEGHENY COUNTY, Pennsylvania, for the Appointment of Viewers to Ascertain the Costs, Damages and Expenses and to Assess the Benefit Arising from the Construction of Sanitary Sewers and Appurtenances In and Under Certain Township Roads and Streets and Through, In or Under Private Lands as Set Forth and Described In a Resolution of the Said Authority, and for Private Property Thus Taken, Used and Appropriated for the Construction of Said Sanitary Sewers In Trotwood-North District of the McLaughlin Run Drainage Area of Upper St. Clair Township Appeal of Elza Jane SIMON.

Supreme Court of Pennsylvania.

Oct. 5, 1962.

Kenneth P. Simon, Pittsburgh, for appellant.

C. Francis Fisher, Pittsburgh, for appellee.

Joseph P. Flanagan, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, William H. Markus, Pittsburgh, for intervenor.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

O'BRIEN, Justice.

The Municipal Authority of the Township of Upper St. Clair, Allegheny County, constructed a sanitary sewer system to serve a portion of the Township. Upon its petition to the Court of Common Pleas of Allegheny County, a Board of Viewers was appointed to ascertain the costs, damages, and expenses and to assess the benefits of the sanitary sewer system against the properties benefited, improved or accommodated by it. The Board, in due course, filed its report assessing 93 properties, identified as V-1 to V-93, for the cost of the improvement.

Seven of the assessed property owners appealed the report of the Viewers to the Court of Common Pleas, on the theory that three parcels of land served by the improvement had not been assessed and that their, the appellants' proportionate shares of the cost had thereby been increased. The Court of Common Pleas affirmed the action of the Board of Viewers and one of the property owners appeals to this Court the order of the court below which confirmed the Viewers' report.

The case has been argued twice before us and, on the re-argument, interested parties, not directly involved in the litigation, were permitted to appear under Rule 65.

The controversy concerns itself with a finding of the Board of Viewers that 'All the properties in question [the three not assessed] are beyond the boundaries of the ordained swer district; and none in fact abut the sewer line either as ordained or constructed.' (Emphasis supplied). There is ample evidence to support the conclusion that the three properties are beyond the boundaries of the sewer district and that they were not intended to, nor did they actually benefit from the improvement. That conclusion was reached by the Viewers and by the court below; we cannot and will not disturb it on appeal. This then should conclude our opinion, for if the three properties are not within the sewer district, they could not have been assessed and the court below was correct in so holding. The emphasized portion of the finding of the Board of Viewers, however, requires us to go into another question.

The properties involved are all located across the road from the actual sewer line. The First Class Township Code, Act of June 24, 1931, P.L. 1206, Sec. 2408, 53 P.S. § 57408 provides:

'The charge for any such sewer system construction in any township shall be assessed upon properties accommodated or benefited in either of the following methods:

'(a) By an assessment, * * *, of each lot or piece of land in proportion to its frontage abutting on the sewer, * * *.

'(b) By an assessment upon the several properties abutting on the sewer in proportion to benefits. * * *' (Emphasis supplied).

That code, however, is not controlling in the case at bar because the instant sewer line was constructed not by the township but by a municipal authority whose powers are different from those of the township which created the authority.

The true nature of a Municipality Authority is that which is set forth in the earliest cases of this Court involving this type of public corporation. Section 2 of the Municipality Authority Act of 1945 (53 P.S. § 302(a)), defines the term 'Authority' as meaning 'A body politic and corporate, created pursuant to this act or pursuant to the 'Municipality Authorities Act of 1935' repealed hereby.' It has been consistently held in cases in point, both under the Municipality Authorities Act of 1935 and 1945 and under other legislation involving authorities that an authority is not the creature, agent or representative of the municipality organizing it. In Tranter v. Allegheny County Authority, 316 Pa. 65, 79, 173 A. 289, 295 (1934), this Court refers to the Authority 'as the agent created for the purpose by the state' (Emphasis supplied), notwithstanding the fact that under the Second Class County Authority Act the Authority therein provided for would not come into being until the county commissioners so declared. In Williams v. Samuel, 332 Pa. 265, 277, 2 A.2d 834, 840 (1938), this Court commented that as to an Authority 'the state can authorize its creature, the City, to transfer its sewer system to the Authority created by the state.' (Emphasis supplied). In Lighton v. Abington Township, 336 Pa. 345, 353, 9 A.2d 609, 613 (1939), this Court stated that: 'In the Tranter case, * * * the state authorized the creation of a public corporation, the Allegheny County Authority, and required its agent, the county, upon the creation of the Authority, to transfer to the Authority certain property for purposes which were within the jurisdiction of the state. On the same theory the incorporation of Municipal Authorities has been supported. They are public corporations, being corporate agencies engaged in the administration of civil government. The state may modify the part performed by its agencies in government by creating other agencies, subject always to constitutional limitations. If there is any resemblance between (1) the exercise of the power of the state to modify township government by taking part of it from the township and vesting it is a public corporation and (2) by statute, authorizing the municipality to make a contract with a private corporation to take over and operate public property, the fact remains that the state may do the first but is expressly prohibited from doing the second.' (Emphasis supplied). In Commonwealth ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686 (1941), it was held that a member of a board of a Municipal Authority created under the Act of 1935 was a public official by reason of the fact that such entity is an independent agency of the Commonwealth and part of the sovereignty of the State. Similarly, in Evans v. West Norriton Township Municipal Authority, 370 Pa. 150, at page 154, 87 A.2d 474 at page 476 (1952), Mr. Justice (now Chief Justice) Bell of this Court stated that: 'A Municipal Authority is defined by the Act as 'a body politic and corporate'. Its members are appointed by elected public officials. It receives a charter from the Commonwealth of Pennsylvania which grants it certain characteristic attributes of a corporation. It is authorized by law and by its charter to perform vast private as well as certain limited public functions.' (Emphasis supplied).

Much unnecessary confusion has been injected...