Smith v. Athens Township Authority

685 A.2d 651, 1996 Pa. Commw. LEXIS 492
CourtCommonwealth Court of Pennsylvania
DecidedNovember 27, 1996
StatusPublished
Cited by8 cases

This text of 685 A.2d 651 (Smith v. Athens Township Authority) 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
Smith v. Athens Township Authority, 685 A.2d 651, 1996 Pa. Commw. LEXIS 492 (Pa. Ct. App. 1996).

Opinion

FLAHERTY, Judge.

In this consolidated appeal, Roscoe and Rosalyn Smith (Smith), Barry and Diane Schoenly (Schoenly), and John and Nancy DeSisti (DeSisti), eoüectively Appeñants, appeal from an order of the Court of Common Pleas of Bradford County which determined that Ordinance No. 69, adopted by the Athens Township Supervisors (Supervisors) on August 10,1989, which purported to establish a tap-in fee for the municipal sewer system at a cost of $600 for “each property upon which a residence shah be located,” and $1600 for each commercial property, was invalid and that the resolution of the Athens Township Authority (Authority)1 dated July [654]*65426, 1989,2 which established a tap-in fee of $600 for “each residence,” controlled over the minutes of the July 26,1989, Authority meeting and correctly set forth the cost of sewer connection fees.

The issues in this case are: (1) whether the trial court erred in denying Appellants’ motion to amend their complaint to include constitutional issues after the close of testimony, (2) whether Ordinance No. 69 passed by the Supervisors, or the resolution adopted by the Authority governs tap-in fees, (3) whether a trailer park and an apartment building constitute commercial properties rather than residences, and (4) whether the tap-in fees are reasonable and uniform.

The Schoenlys and the DeSistis each own and operate separate tráiler parks on Elmira Street in Athens Township. The Smiths own and operate an apartment complex on the same street.

In 1989, a municipal sewer was installed on Elmira Street. The DeSistis and Schoenlys excavated and constructed sewer lines within their trader parks in order to service each of the trader lots and expended $47,000 and $72,600 respectively. On September 16, 1989, the Schoenlys and DeSistis submitted applications to the Authority for tap-in permits and each tendered $600. The Authority denied the applications, informing the DeSis-tis that, to tap into the sewer line, they were required to pay $22,000, and informing the Schoenlys that they were required to pay $31,200 to tap into the sewer line. These fees represented a $600 tap-in charge for each of the units within the DeSisti’s and Schoenly’s trader parks.

On October 11, 1990, the Schoenlys and DeSistis filed a suit against the Authority seeking to compel them to accept $600 or $1,600 as fidl payment for the tap-in fee. On October 16, 1990, the Authority filed an action against the Smiths seeking to require them to connect to the municipal sewage system and demanding a total of $23,400, which represented a tap-in fee of $600 for each of the apartments within their complex. One week later, on October 23, 1990, the Authority enacted a resolution ratifying and confirming the resolution dated July 26,1989, reciting that questions had been raised because it was not signed nor physically attached to the minute book, and it was allegedly ambiguous. (R.R. at 236a-237a.) The Smiths filed suit against the Authority on January 31,1991. The Sehoenly, DeSisti and Smith proceedings were then consolidated for trial, which commenced on November 23, 1991. (R.R. at 2a.)

At the hearing, Appellants argued that Ordinance No. 69 enacted August 10, 1989, by the Supervisors established the tap-in fees because it was in effect at the time they applied for their tap-in permits.3 Ordinance No. 69 provides, in relevant part, that “each property upon which a residence shall be located” shall pay a tap-in fee of $600. Additionally, “each property on which a commercial or industrial facility shall be located” shall pay a tap-in fee of $1,600. In accordance with Ordinance No. 69, Appellants argued that they are required to pay only $600 to tap their properties into the sewer system. In the alternative, Appellants argued that, at most, they are required to pay $1,600 if their properties are deemed a commercial or industrial facility.

The Authority argued, and the trial court agreed, that Ordinance No. 69 is not valid and does not control tap-in fees.4 The Su[655]*655pervisors who enacted Ordinance No. 69 purporting to establish these fees did not have the authority to do so. The court determined that, in accordance with the Act, the Authority has the exclusive power to regulate sewer rates and tap-in fees. As such, the trial court held that the Authority’s resolution of July 26, 1989, which was ultimately ratified on October 23, 1990, properly established the tap-in fees. In accordance with that resolution, a tap-in fee of $600 is required for “each residence”. Commercial or industrial properties are required to pay a tap-in fee of $1,600. Moreover, the court determined that the October 23,1990 resolution, which also defined residence to include mobilehomes, was not an ex post facto law but merely ratified the previous resolution of July 26, 1989. In addition, if the resolution of July 26, 1989 was not properly enacted, the trial court determined that the resolution of October 23, 1990, was applicable to Appellants retrospectively.

Accordingly, the trial court determined that Appellants were required to pay a $600 tap-in fee for each residence on their property. The trial court also denied Appellants’ motion to amend their complaint at the conclusion of trial to include constitutional issues. Appellant filed post-trial motions which were denied by the court.5 This appeal followed.

The burden is upon the challenging party to prove that the Authority abused its discretion by establishing a rate system which was either unreasonable or lacking in uniformity. The court must consider whether the factual findings are supported by substantial evidence and whether the law was properly applied to the facts. West v. Hampton Township Sanitary Authority, 661 A.2d 459 (Pa.Cmwlth.1995).

Initially, Appellants Schoenly and De-Sisti contend that the trial court erred by refusing to grant their motion to amend their complaint for the third time because the testimony had been concluded, the opposing party would be prejudiced and there was not a reasonable possibility that the proposed amendment would be successful.

After the close of testimony, Schoenly and DeSisti sought to include a claim that the imposition of the fees is an unconstitutional taking of private property without just compensation. Pa. R.C.P. No. 1033 provides: “A party, either by filed consent of the adverse party or by leave of court, may at any time ... amend his pleading.” Because Appellants did not have the consent of the Authority, they sought leave to amend from the trial court. This court held in Simmons v. Township of Moon, 144 Pa.Cmwlth. 198, 601 A.2d 425 (1991), that “leave to amend a complaint is within the sound discretion of the trial court.” Moreover, “where amendment is sought after the testimony has been concluded, prejudice will always result to the extent that the opposing party has not contemplated the subject matter of the proposed amendment in the preparation and trial of the case.” Newcomer v. Civil Service Commission, 100 Pa.Cmwlth. 559, 515 A.2d 108, 111 (1986), petition for allowance of appeal denied, 514 Pa. 626, 522 A.2d 51 (1987).

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685 A.2d 651, 1996 Pa. Commw. LEXIS 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-athens-township-authority-pacommwct-1996.