Opinion
No. 633 C.D. 2012
02-12-2013
Donald Wenrich and Rosina Wenrich, on Behalf of Themselves and All Others Similarly Situated, Appellants v. Pine Grove Joint Treatment Authority and Pine Grove Township Supervisors
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
Donald and Rosina Wenrich (Appellants) appeal from the January 27, 2012 order of the Court of Common Pleas of Schuylkill County (trial court), which sustained preliminary objections filed by the Appellees, Pine Grove Joint Treatment Authority (Authority) and Pine Grove Township Supervisors (Supervisors), dismissed Appellants' Complaint for failure to state a claim, and denied class action status. Appellants' Complaint stated one count in equity seeking relief from the Authority's directive that Appellants' were required to attach their property to the public sewer system. We affirm.
I. Background
Appellants own a home at 530 Suedberg Road in Pine Grove Township, Pennsylvania. In 1992, the Township enacted Ordinance No. 1992-48 (Ordinance) requiring Township residences to connect to a public sewer system and granting the Authority the power to acquire and construct the public sewer system. Section 2.01 of the Ordinance provides:
The owner of an Improved Property benefited, improved, or accommodated by a Sewer shall connect such Improved Property with such sewer, in such manner as this Township may require, within 45 days after notice to such Owner from this Township to make such connection, for the purpose of discharging all Sanitary Sewage and Industrial wastes from such Improved Property; Subject, however to such limitations and restrictions as shall be established herein or otherwise shall be established by this Township, from time to time.(Ordinance § 2.01, Supplemental Reproduced Record (S.R.R.) at 3b.)
Section 3.06 of the Ordinance provides:
A Building Sewer shall be connected to a Sewer at the place designated by this Township or by the Authority and where, if applicable, the Lateral is provided.(Ordinance § 3.06, S.R.R. at 3b.)
The invert of a building Sewer at this point of connection shall be at the same or a higher elevation than the invert of the Sewer. A smooth neat joint shall be made and the connection of the Building Sewer to the Lateral shall be made secure and watertight.
In 2001, the Township, Pine Grove Borough (Borough), and the Authority entered into an Intermunicipal Agreement, pursuant to which the Authority would take over and expand the municipalities' existing sewage treatment facilities. (Oct. 31, 2001 Intermunicipal Agreement, Appendix B to Appellants' Brief.) In 2004, the Authority adopted Regulations mandating connection to the public sewer line for any property within 150 feet thereof, and addressing properties that are below the public sewer line. Section 6.02 of the Regulations provides:
MANDATORY CONNECTION(Regulation § 6.02, Appendix D to Appellants' Brief.)
The owner of all houses, buildings, or properties used for human occupancy, employment, recreation, or other purposes, situated within the Sewer Treatment Area and abutting on any street, alley, or right of way in which there is now located or may in the future be located in a public sanitary sewer of the Authority, is required at his expense to install suitable toilet facilities therein, and shall connect such facilities directly with the proper public sewer within sixty (60) days after date of official notice to do so if provided that said public sewer is within one hundred fifty feet (150') of the primary building.
Section 7.05 of the Regulations states:
SERVICE TO BASEMENT LEVEL OF STRUCTURES(Regulation § 7.05, Appendix D to Appellants' Brief.)
Whenever possible, the building sewer shall be brought to the building at an elevation below the basement floor. In all buildings in which any building drain is too low to permit gravity flow to the public sewer, sanitary sewage carried by such building drain shall be lifted by an approved means and discharged to the building sewer.
In 2005, the Authority required Appellants and other similarly situated property owners to install grinder pumps in order to connect to the low pressure sewerage collection system, which grind and pump the waste into the system. (Complaint ¶21, Reproduced Record (R.R.) at 11a.) The grinder pumps were supplied by the Authority and property owners, including Appellants, were expected to operate, maintain, and repair them at their expense. (Id.)
The facts imply that Appellants' property is situated below the sewer line, requiring the grinder pumps, however, that fact is not expressly in the record.
On September 9, 2009, the Authority issued a letter to Appellants informing them that their property may not be compliant with the mandatory connection ordinance and ordering them to comply within 90 days. (Complaint ¶23, R.R. at 11a.) On November 17, 2009, the Authority enacted a mandatory low pressure connection ordinance that described the steps the Authority will take to enforce its connection mandate. (Mandatory Connection Ordinance, Appendix I to Appellants' Brief.) After receiving no response from Appellants to its September letter, the Authority issued a second letter on December 21, 2009, informing Appellants that they had two weeks to contact the Authority's Regulatory Enforcement Committee to request a hearing. (Dec. 21, 2009 Letter, Appendix J to Appellants' Brief.)
On December 22, 2009, Appellants filed this action alleging a class action and one count, in equity, seeking a preliminary and permanent injunction (1) prohibiting the Authority and the Supervisors from requiring Appellants to connect to any sewer system by any means other than a gravity flow system, and (2) prohibiting the Authority and Supervisors from condemning Appellants' property or imposing fines or legal costs on them. (Complaint, R.R. at 12a-13a.) Appellants also sought to compel the Supervisors to enforce section 3.06 of the Ordinance, which they contend requires the Township to install a gravity flow sewage collection system and the installation of sump pump stations within 150 feet of their buildings. Instead, the Township implemented a low pressure collection system and required Appellants to connect to that system using the grinder pumps, which Appellants contend is not authorized under the Ordinance. Appellants sought to represent a class of approximately 80 similarly situated plaintiffs who they alleged own and occupy buildings within 150 feet of the public sewer system and purported to seek relief on their behalf. (Complaint ¶¶7-8, R.R. at 8a.)
At a December 22, 2009 telephone conference, the trial court denied Appellants' request for a preliminary injunction, but the Authority agreed to temporarily suspend enforcement of the mandatory connection regulation. On May 27, 2010, Appellees filed preliminary objections to the Complaint. The first preliminary objection challenged the Complaint on the basis that Appellants had not exhausted their administrative remedies. The second preliminary objection asserted that the Complaint failed to state a claim or cause of action upon which relief could be granted under Pennsylvania Rule of Civil Procedure 1028(a)(4). The third preliminary objection asserted that the Complaint failed to establish the requirements of a class action pursuant to Pennsylvania Rule of Civil Procedure 1702.
On July 8, 2010, the trial court issued an order finding that Appellants had failed to exhaust their administrative remedies and ordered the parties to conduct an administrative hearing, as provided for in the regulations, to address Appellants' objections to connecting to the sewer line. Rather than dismiss the Complaint, the trial court ordered that resolution of the preliminary objections would be held in abeyance. The administrative hearing was held on August 24, 2010, but it did not resolve Appellants' claims. (Trial Ct. Op. at 6.)
In June 2011, Appellants responded to the preliminary objections and Appellees filed a reply brief. On January 27, 2012, without a hearing, the trial court entered an order dismissing the first preliminary objection as moot and sustaining the other two preliminary objections for failure to state a claim. The trial court held that the Commonwealth Court had previously interpreted identical ordinance language in Bloom v. Commonwealth, 461 A.2d 910 (Pa. Cmwlth. 1983), and that our holding there was controlling. Accordingly, the trial court held that the Authority's low pressure sewer system was legal because the Ordinance does not require a gravity flow system. The trial court also denied Appellants' request for class action status and dismissed the Complaint. This appeal followed.
In reviewing a lower court's decision to grant a demurrer, our Court's standard of review is de novo. Stilp v. Commonwealth, 601 Pa. 429, 435, 974 A.2d 491, 494 (2009); Insurance Adjustment Bureau, Inc., v. Allstate Ins. Co., 588 Pa. 470, 480 n.4, 905 A.2d 462, 468 n.4 (2006).
II. Discussion
Appellants' first argument is that the trial court applied the incorrect standard in sustaining the preliminary objections and dismissing the Complaint. More specifically, Appellants claim that the trial court failed to accept their factual allegations as true and instead impermissibly acted as a fact finder by reviewing and interpreting the Ordinance, Rules and Regulations, and other documents in making its ruling.
The rule is well settled that in ruling upon preliminary objections, courts must accept as true all well-pleaded allegations of material facts as well as all of the inferences reasonably deducible from the facts. Stilp v. Commonwealth, 910 A.2d 775, 781 (Pa. Cmwlth. 2006), affirmed, 601 Pa. 429, 974 A.2d 491 (2009). For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery, and any doubt must be resolved in favor of the non-moving party. Id. The trial court, however, is not required to accept as true conclusions of law, unwarranted inferences from facts, expressions of opinion, or argumentative allegations. Christ the King Manor v. Dep't of Pub. Welfare, 911 A.2d 624, 633 (Pa. Cmwlth. 2006), affirmed, 597 Pa. 217, 951 A.2d 255 (2008). The trial court is permitted to reach its own conclusion regarding the interpretation of laws and ordinances, which is a legal issue. Holt's Cigar Company, Inc. v. City of Philadelphia, 608 Pa. 146, 153, 10 A.3d 902, 906 (2011); Nutter v. Dougherty, 595 Pa. 340, 353 n.20, 938 A.2d 401, 412 n.20 (2007).
Here, the trial court's ruling on the preliminary objections was based on its examination of the relevant ordinance, regulations, and written documents. Contrary to Appellants' argument, the court was not required to accept Appellants' characterization or interpretation of the law set forth in their Complaint. Appellants fail to identify a single factual allegation that, if accepted as true, would require a ruling in their favor. Accordingly, we find no error in the trial court's application of the legal standard for resolving preliminary objections.
Appellants' second argument is that the trial court erroneously determined that the Ordinance does not mandate that the Township install a gravity flow sewer system. This issue is related to Appellants' third argument, which is that the trial court erroneously followed our holding in Bloom. As the trial court succinctly summarized, "The gist of [Appellants'] foregoing allegations and arguments . . . is that the Supervisors and the Authority are not legally authorized by the Ordinance and the rules and regulations to install a low pressure sewer system and that they must, pursuant to the Ordinance and rules and regulations, install a gravity system." (Trial Ct. Op. at 5.) Appellants relied on the following language in section 3.06 of the Ordinance: "The invert of a building Sewer at this point of connection shall be at the same or a higher elevation than the invert of the Sewer." (Ordinance § 3.06, S.R.R. at 3b.)
We find no error in the trial court's interpretation of the Ordinance. In Bloom, a municipality brought summary criminal charges against a landowner for failing to connect his property to the public sewer system as required by a municipal ordinance. 461 A.2d at 911. The landowner ultimately appealed his conviction to this Court, arguing that the applicable ordinance contemplated only connections that could be accomplished by gravity flow from the house to the sewer system and, as a result, the municipality could not compel him to connect his property to the sewer by any other means. Id. at 911-12. The Bloom ordinance provided: "The invert of a Building Sewer at the point of Connection shall be at the same or higher elevation than the invert of the Sewer." Id. at 912. That is exactly the same language at issue in the instant case (see Ordinance § 3.06, quoted above) and Appellants here raise exactly the same argument that the landowner raised in Bloom. Interpreting that language, we determined:
Clearly, this provision requires that the building sewer be at the same or higher elevation than the public sewer only "at the point of connection," not the whole length of the building sewer.Id.
Relying on our holding in Bloom and on its own interpretation of the Ordinance, the trial court concluded that the Ordinance and the Regulations "are clear that a gravity flow system is not required to be installed by the Authority and that the low pressure system installed by the Authority is not prohibited." (Trial Ct. Op. at 9.) There was no error in that holding.
Appellants argue that the ordinance in Bloom is materially different than the Ordinance here, because in Bloom the ordinance itself required property owners to connect to the sewer system in the manner required by the municipality, whereas the Ordinance here merely requires owners to "connect such Improved Property with such sewer, in such a manner as this Township may require" (Ordinance § 2.01), and it is the Authority, not the Township, that is mandating a grinder pump. This is a distinction without a difference. As explained below, the Township is permitted to create an authority that has the power to issue rules and regulations to fulfill the purpose for which it was created.
Appellants' fourth argument is that the Authority lacked the power to issue the rules and regulations in question and, to the extent that power was properly granted to the Authority, Appellants claim the Authority's exercise of it was arbitrary and capricious. As such, Appellants argue that their Complaint states a claim upon which relief can be granted and the preliminary objections should have been overruled.
Section 1.01.A of the Township's Ordinance states that the Township created the Joint Treatment Authority pursuant to the Municipality Authorities Act of 1945. The trial court correctly held that the Township was permitted to create the Authority and that the Authority was authorized to promulgate rules and regulations to advance its purpose of creating, maintaining, and regulating a public sewer system. (Trial Ct. Op. at 10.) See Section 5607(a), (d) of the Municipalities Authority Act, 53 Pa. C.S. §§ 5607(a), formerly 53 P.S. § 306A(a) (authorizing creation of authority to undertake enumerated projects, including "(5) sewers, sewer systems or parts thereof" and "(6) sewage treatment works, including works for treating and disposing of industrial waste"); 5607(d)(17), formerly 53 P.S. § 306B (permitting authority to do all acts necessary and convenient to carry out the powers granted to it). Appellants fail to cite any legal authority, and cited none below, to support their contention that the Township was not authorized to create the Authority for its intended purpose.
Act of May 2, 1945, P.L. 382, as amended, formerly 53 P.S. §§ 301-322, repealed by Section 3 of the Act of June 19, 2001, P.L. 287. The Act of 1945 was repealed and replaced by the current Municipality Authorities Act, 53 Pa. C.S. §§ 5601-5623.
Appellants also contend that the Authority exceeded its grant of authority, or that it is exercising its power in an arbitrary and capricious manner, because the regulations contradict the meaning of the Ordinance. This argument hinges on Appellants' erroneous interpretation of the Ordinance, which they contend requires the Township to use a gravity flow system, which, in turn, would render the Authority's low pressure sewer system impermissible. As we explained above, the trial court properly rejected Appellants' interpretation of the Ordinance. As such, we find no error in the trial court's rejection of Appellants' arguments related to the scope of the Authority's powers.
Appellants' fifth and final argument is that the trial court erred when it sustained the preliminary objection to the class allegations for a lack of numerosity. The trial court found that the administrative hearing conducted on August 24, 2010, indicated that Appellants' property was the only Township property that was within 150 feet of the public sewer system, that was required to connect to the system, and that had failed to do so. (Trial Ct. Op. at 10-11.) Accordingly, the trial court sustained the preliminary objection to the class allegations, finding that the Complaint failed to meet the numerosity requirement to sustain a class action under Rule 1705. (Id.)
Appellants argue that the trial court violated Pennsylvania Rule of Civil Procedure 1705, which provides that issues of fact pertaining to a purported class may not be raised by preliminary objections, but must be raised by an answer to the complaint. See also Pa. R.C.P. 1707 (requiring a certification hearing to determine whether a class may be certified).
It appears that Appellants failed to properly raise the alleged procedural defect by filing preliminary objections to the preliminary objections. We have held that "where a party erroneously asserts substantive defenses in preliminary objections rather than to raise these defenses by answer or in a new matter, the failure of the opposing party to file preliminary objections to the defective preliminary objections, raising the erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections." Scavo v. Old Forge Borough, 978 A.2d 1076, 1078 (Pa. Cmwlth. 2009) (citations omitted). However, because we find that the trial court properly dismissed the Complaint in its entirety, we need not rule on the waiver issue. --------
We find that any error in sustaining the preliminary objection to the class allegations was harmless. Because the trial court properly dismissed the Complaint for failure to state a claim upon which relief could be granted, the trial court could have overruled the preliminary objection to the class allegations as moot, rather than addressing its substance.
For all of the above reasons, the trial court is affirmed.
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 12th day of February, 2013, the order of the Court of Common Pleas of Schuylkill County is AFFIRMED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge