Finkelstein v. Commonwealth

433 A.2d 146, 61 Pa. Commw. 91, 1981 Pa. Commw. LEXIS 1696
CourtCommonwealth Court of Pennsylvania
DecidedAugust 5, 1981
DocketAppeal, No. 1854 C.D. 1979
StatusPublished
Cited by6 cases

This text of 433 A.2d 146 (Finkelstein v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finkelstein v. Commonwealth, 433 A.2d 146, 61 Pa. Commw. 91, 1981 Pa. Commw. LEXIS 1696 (Pa. Ct. App. 1981).

Opinion

Opinion by

Judge MacPhail,

Edward S. Finkelstein (Appellant) appeals here from an order of the Court of Common Pleas of Dauphin County that affirmed his conviction and entered judgment of sentence for the summary offense of failing to connect to a sanitary sewer line in Susquehanna Township (Towriship).

The facts are uncontested. The Township notified Appellant that, pursuant to its ordinances, Appellant would be required to connect to a sanitary sewer line installed by the Township that was available to service his property located a 1804 York Lane. Although Appellant’s property abuts a public street, the sewer line in question ran in a sewer easement abutting the rear of Appellant’s property and was within 300 feet of his residence. Appellant refused to connect to the sewer line.

[93]*93On March 13, 1979, the Township filed a criminal complaint accusing Appellant of failure to connect to the Township’s sanitary sewer system as required after receiving proper notification. Such refusal was alleged to be in violation of Section 2401 of The First Class Township Code (Code), Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §57401, the Susquehanna Township Plumbing Code, Susquehanna Township, Dauphin County, Ordinance 72-11 (February 8, 1972), as amended, (repealed) (1972 Plumbing Code)1 and Section 22 of Susquehanna Township, Dauphin County, Pa., Code Chapter XIX (1974) (Sewer Ordinance). Appellant was convicted of a summary offense and sentenced to pay a fine as provided in Section 9 of the Sewer ordinance. Appellant appealed and a trial de novo was held before the Court of Common Pleas of Dauphin County. The trial court upheld the conviction and denied a motion for a new trial and in arrest of judgment. Appellant’s appeal to this Court followed.

Appellant contends that he did not violate the Sewer Ordinance by his refusal to connect to the sewer line because his property does not fall within the class of properties specified by Section 22 of the sewer ordinance. He further contends that the 1972 Plumbing Code that includes, inter alia, the BOCA Basic Plumbing Code/1970 (1970 BOCA Code)2 is also inapplicable to his property. Of course, Section 2401 of the Code is [94]*94merely an enabling statute, therefore, Appellant’s conduct could not constitute a violation of its provisions.

It is true, as the learned trial judge opined, that Section 2401 of the Code authorized the Township3 to lay sewer lines in public streets “as far as practicable” and may require owners of property “benefited, improved or accommodated” by those lines to make connection “as the commissioners may order for the purpose of discharge of such drainage or waste matter as the commissioners may specify.” Section 2402 of the Code authorizes the Township to lay sewer lines over private property when it is reasonably impracticable to place such lines in public streets. Quite obviously, that is the authority exercised by the Township in the instant case when it acquired an easement for the sewer line. The Township argued and the trial court agreed that since Appellant’s land was benefited or accommodated by the sewer line, the Township had the authority under Section 2401 of the Code to require Appellant to connect.

But the dispute is not whether the Township had the enabling authority to require Appellant to connect; rather, the dispute is whether the specific ordinances enacted by the Township pursuant to that enabling authority and alleged to have been violated by Appellant required him to connect.

As we have noted, when the Township filed the criminal complaint it accused Appellant, inter alia, of violating the Sewer Ordinance and the 1972 Plumbing Code. Although the Township did not institute its enforcement action until 1979, the Township did not accuse Appellant of violating the 1978 Plumbing Code4 [95]*95nor of violating the 1979 Plumbing Code.5 The holding in this case then is limited to the alleged violation of the 1972 Plumbing Code and/or the Sewer Ordinance and does not address conflicts real or imagined between the Sewer Ordinance on the one hand and the 1978 Plumbing Code or the 1979 Plumbing Code on the other.

Section 22 of the Sewer Ordinance reads as follows:

The Owner of any improved property abutting on or adjoining any street, road, lane, alley, court, public square or highway in which a sewer constituting a part of a sewer system is located within 300 feet of a structure upon said property shall connect such improved property therewith in such manner as this Township may require within 60 days after notice to such owner from this Township to make connection for the purpose of discharge of all sanitary sewage and industrial waste from such improved property subject to such limitations and restrictions as shall be established herein or otherwise shall be established by this Township from time to time (emphasis added).

Appellant argues that since the sewer line within 300 feet of his property is located in an “easement,” a word missing from the list of locations for a sewer line, Section 22 of the Sewer Ordinance is inapplicable to his property. We agree.

This Court has held that the rules of statutory construction are applicable to statutes and ordinances alike. Appeal of Neshaminy Auto Villa Ltd., 25 Pa. Commonwealth Ct. 129, 358 A.2d 433 (1976). Section 1903 of the Statutory Construction Act of 1972 (Act), [96]*961 Pa. C. S. §1903, provides that words and phrases are to be construed according to their common and approved usage. Further, Section 1921(b) of the Act, 1 Pa. C. S. §1921(b) directs that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa. C. S. §1921(b). One longstanding and intrinsic aid to statutory construction is found in the maxim expression unius est exclusio alterius. This maxim establishes the inference that, where certain things are specified in a law, “all omissions should be understood as exclusions.” Commonwealth v. Charles, 270 Pa. Superior Ct. 280, 411 A.2d 527 (1979). Applying this maxim to the Sewer Ordinance we find that the requirement that the improved property abut or adjoin any “street, road, lane, alley, court, public square or highway” in which a sewer line is located excludes any sewer line that is located in an easement. We hold, therefore, that Appellant did not violate the Sewer Ordinance.

The relevant section of the 1972 Plumbing Code reads as follows:

P-302.2 Public Systems available A public water system and/or public sewer system shall be deemed available to premises used for human occupancy if such premises are within 300 feet measured along a street, alley or easement of the public water supply or sewage system and a connection conforming with the standards set forth in this Code [1970 BOAC Code] may be made thereto. (Emphasis added.)

Section 1933 of the Act, 1 Pa. C. S.

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Cite This Page — Counsel Stack

Bluebook (online)
433 A.2d 146, 61 Pa. Commw. 91, 1981 Pa. Commw. LEXIS 1696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finkelstein-v-commonwealth-pacommwct-1981.