Welsh v. Stewartstown Borough Authority

43 Pa. D. & C.4th 41, 1998 Pa. Dist. & Cnty. Dec. LEXIS 65
CourtPennsylvania Court of Common Pleas, York County
DecidedNovember 23, 1998
Docketno. 95-SU-05625-07
StatusPublished

This text of 43 Pa. D. & C.4th 41 (Welsh v. Stewartstown Borough Authority) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welsh v. Stewartstown Borough Authority, 43 Pa. D. & C.4th 41, 1998 Pa. Dist. & Cnty. Dec. LEXIS 65 (Pa. Super. Ct. 1998).

Opinion

KENNEDY, J.,

This matter is before the court on motions for summary judgment presented by plaintiff and defendant. For the reasons that [42]*42follow, we will deny plaintiff’s motion and grant defendant’s motion insofar as plaintiff has an adequate remedy at law.

FACTUAL AND PROCEDURAL BACKGROUND

H&M Builders Inc. owned four lots in Ebaugh Creek, a subdivision located in Stewartstown Borough, York County. On September 28, 1994, H&M and the Stew-artstown Borough Authority entered into a tapping fee agreement which, contingent on the payment of the fees or the posting of security, gave H&M permits to connect the four lots in Ebaugh Creek to the Stewartstown sewer and water systems. Sometime in 1995, H&M transferred ownership of the lots to Lambert Construction, retaining the permits for itself. On September 14,1995, H&M and Stuart Welsh executed a form requesting that SBA transfer H&M’s permits to Welsh. At its October 25, 1995 meeting, SBA issued new sewer and water connection permits to Lambert Construction for the lots formerly owned by H&M and also approved H&M’s request for transfer of its permits to Welsh.

Welsh filed a two-count complaint in equity on December 19,1995. Count I was a claim for breach of contract seeking specific performance, or in the alternative, the lost value of the permits. Count II was in mandamus, seeking an order compelling SBA to issue permits limiting Welsh’s connection rights to the four lots previously owned by H&M and revoking the permits issued to Lambert Construction for the same four lots.

SBA filed preliminary objections to Welsh’s complaint. SBA claimed Welsh lacked capacity to sue SBA, that H&M was a necessary party to the suit, and that the complaint failed to state a cause of action due to the exist[43]*43ence of an adequate remedy at law. This court denied SBA’s preliminary objections on March 18,1996, citing insufficient facts of record. In doing so, the court noted that it would entertain a motion for summary judgment when the factual record was sufficiently developed.

SBA filed its answer and new matter on April 11,1996. Thereafter, Welsh filed his reply to new matter on May 8,1996. The parties conducted discovery and have each filed motions for summary judgment.

ANALYSIS

Motions for summary judgment are governed by Pa.R.C.P. 1035.2 which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of material fact as to a necessary element of a cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require issues to be submitted to a jury.”

I. Defendant’s Motion

SBA sets forth three arguments in support of its motion for summary judgment. SBA argues that Welsh lacks standing to sue because he was neither a party to, nor a [44]*44third party beneficiary of, the tapping fee agreement. SBA also argues that Welsh failed to join H&M, a necessary and indispensable party. Finally, SBA argues that Welsh has an adequate remedy at law.

(A) Welsh Has Standing

SBA’s argument regarding standing focuses on Count I of Welsh’s complaint (breach of contract). SBA argues that because Welsh was not a party to, or a third party beneficiary of, the tapping fee agreement, he is not entitled to sue SBA for its breach. In reply, Welsh argues that he possesses standing to sue based on H&M’s assignment of its rights under the tapping fee agreement to him.

“Generally a party to a contract does not become liable for a breach thereof to one who is not a party thereto.” Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961). However, “[wjhere an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of his rights.” Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 285, 687 A.2d 1167, 1172 (1997). “Among these rights are the remedies the assignor once possessed.” Id.

Paragraph 8 of the tapping fee agreement establishes the procedure for transfer of the rights created thereunder. Likewise, section IV of Stewartstown Borough Authority resolution no. 1994-02 outlines the procedure for transferring permits. In fact, H&M and Welsh executed a request for permit transfer, on a form prepared by SBA, on September 14, 1995 for the permits involved in this controversy.

Paragraph 10 of the tapping fee agreement requires a written assignment of the agreement by the owner as a [45]*45precondition to any transfer or approval. SBA points to this provision and argues that there was no valid transfer of rights under the agreement due to H&M and Welsh’s failure to follow the procedure therein. Although the language of the tapping fee agreement is clear, it is equally clear that SBA approved the request for transfer at its October 25, 1995 meeting, thereby waiving the condition. An “obligor may ratify an otherwise invalid or ineffective assignment by his conduct.” Smith, 455 Pa. Super, at 286, 687 A.2d at 1172. If SBA wanted to invoke the condition of written assignment, it should have done so prior to approving the transfer.

SBA also argues that Welsh lacks standing because he is not a third party beneficiary of the tapping fee agreement. Because we have decided that Welsh has standing as an assignee this argument is moot.

(B) H&M Is Not Indispensable

SBA argues that summary judgment is appropriate because Welsh failed to join H&M, an indispensable party. “It is true .. . that unless all indispensable parties are made parties to an action, a court is powerless to grant relief.” Sprague v. Casey, 520 Pa. 38, 48, 550 A.2d 184, 189 (1988). “A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.” Id. “A corollary of this principle is that a party against whom no redress is sought need not be joined.” Sprague, 520 Pa. at 48-49, 550 A.2d at 189. Thus “if the merits of a case can be determined without prejudice to the rights of an absent party, the court may proceed.” Id. at 49, 550 A.2d at 189.

[46]*46In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), the Pennsylvania Supreme Court set forth the following guidelines for determining whether a party is to be considered indispensable in pending litigation:

“(1) Do absent parties have a right or interest related to the claim?

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Bluebook (online)
43 Pa. D. & C.4th 41, 1998 Pa. Dist. & Cnty. Dec. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-stewartstown-borough-authority-pactcomplyork-1998.