Lakemont Civic Ass'n v. Central Blair County Sanitary Authority

Opinion by Rhodes, P. J., Plaintiff filed a complaint on September 9, 1961, and an amended complaint on October 6, 1961 (hereinafter called “complaint”), in the Court of Common Pleas of Blair County, seeking to prevent the defendant, Central Blair County Sanitary Authority, from accepting a newly constructed sewer system from the contractor until wet weather tests proved the system met the contract requirements. On January 8, 1960, the authority signed a contract with New Enterprise Stone and Lime Company, Inc., providing for the construction of a system that would collect sewage and transmit it to the system of Hollidaysburg Sewer Authority for disposal. On September 12, 1961, or three days after the filing of the complaint, defendant authority accepted the sewer system but did not put it into operation. Defendant filed preliminary objections to the complaint on September 26, 1961, and to the amended complaint on October 26, 1961. Plaintiff alleged that water seepage and infiltration from outside the system during wet weather would exceed substantially that allowable under the contract; that the acceptance without proper tests deprived the authority of the benefit of the contractor’s performance bond; and that such acceptance was an abuse of discretion. The court was requested to cancel acceptance of the sewer system until satisfactory wet weather tests and inspection proved the requirements of the contract [127] had been met. The complaint farther stated that “plaintiff . . . questions the adequacy, safety and reasonableness of the Defendant Authority’s services in finally accepting the said sewer system from the Contractor before the said sewer system conclusively met the infiltration and seepage requirements of the contract,” and alleged that the court of common pleas had jurisdiction under section 4 of the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended by the Act of October 7, 1955, P.L. 671, 53 PS §306 B(h), giving the court jurisdiction over “rates and services” of municipal authorities. Defendant’s preliminary objections set forth, inter alia, that the Municipality Authorities Act of 1945, as amended, 53 PS §306B(h), gave the court jurisdiction only over “rates and services,” whereas, “in this case, the Plaintiffs are trying to question the services of the Defendant before they have been put into effect.” After argument the court below dismissed the complaint on the ground that it did not state a justiciable cause of action, and that the facts averred in the complaint did not, in any event, show an abuse of discretion upon the part of the defendant authority in accepting the sewer system from the contractor. The contentions of appellant on its appeal are (1) that the court of common pleas had jurisdiction to determine whether or not the defendant authority provided adequate, safe, and reasonable services to its citizens in accepting from the contractor the sewer system in controversy; (2) that the court below acted improperly in dismissing the complaint on the grounds that it did not plead facts sufficient to constitute an abuse of discretion on the part of the defendant authority. Section 4B(h) of the Municipality Authorities Act of 1945, as amended by the Act of October 7, 1955, P.L. 671, 53 PS §306B(h), gives the authority the [128] power, inter alia, “to determine by itself exclusively the services and improvements required to provide adequate, safe and reasonable service, including extensions thereof, in the areas served.” The same section of the Municipality Authorities Act, as amended, gives the court of common pleas jurisdiction over rates and services, as follows: “Any person questioning the reasonableness or uniformity of any rate fixed by any Authority or the adequacy, safety and reasonableness of the Authority’s services, including extensions thereof, may bring suit against the Authority in the court of common pleas of the county wherein the project is located, or if the project is located in more than one county then in the court of common pleas of the county wherein the principal office of the project is located. The court of common pleas shall have exclusive jurisdiction to determine all such questions involving rates or service.” See Yezioro v. North Fayette County Municipal Authority, 193 Pa. Superior Ct. 271, 278, 164 A. 2d 129. The court below was correct in dismissing the complaint which did not set forth a cause of action within the court’s jurisdiction as relating to a question of “rates or service” of the authority as defined in section 4B(h) of the Municipality Authorities Act of 1945, as amended, 53 PS §306B(h). Acceptance or rejection of the sewer system, and enforcement of the terms of the construction contract were essentially matters of internal managerial discretion and were not related to questions of rates or service. Cf. Pennsylvania Telephone Corporation v. Pennsylvania Public Utility Commission, 153 Pa. Superior Ct. 316, 326, 33 A. 2d 765; Duquesne Light Company v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 166, 172, 63 A. 2d 466. Appellant’s complaint alleging that the sewer system would not meet the contract requirements in a future wet weather test did not set forth presently existing factual matters. [129] There is no allegation that competent tests of the system were not made or that there were any present defects. It merely averred that tests during a wet season will in the indefinite future show the system to be defective. This is pure speculation and would not justify judicial interference. Moreover, the managerial act of acceptance of the sewer system had no direct relation to the question of the authority’s rates or service. Any possible relationship was contingent and remote. We find no merit in appellant’s argument that the word “service” covers the acceptance of the sewer system. As the court below aptly stated: “The purpose of the Authority in the present case is to provide a system for the performance of a service to a designated community, namely the collection and disposal of sewage. The act of accepting the system from the contractor is preliminary to providing this service to the public. It is purely an administrative act solely within the jurisdiction of the Authority, and as such is not subject to review by the court in the absence of an abuse of discretion, fraud, misconduct, or arbitrary and capricious action.” Matters of corporate policy and management preliminary to rendition of service are distinct from those directly involving rates or service after service has commenced. On the other hand, for example, questions as to who shall be served and what lines shall be abandoned are concerned directly with “service.” Cf. Yezioro v. North Fayette County Municipal Authority, supra, 193 Pa. Superior Ct. 271, 164 A. 2d 129. Appellant apparently relies upon the Yezioro case. We there held that the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended by the Act of October 7, 1955, P.L. 671, 53 PS §306B(h), gave the court of common pleas jurisdiction to pass upon “the adequacy and reasonableness of the utility service rendered by a water authority” with special reference [130] to proposed abandonment by the authority of service to certain consumers. The Yezioro case therefore is clearly distinguishable as a case in which the court of common pleas had jurisdiction over a question of “rates or service” as defined in the Municipality Authorities Act of May 2, 1945, P.L. 382, as amended by the Act of October 7, 1955, P.L. 671, 53 PS §306B(h). Although the appellant in this statutory appeal attempts to question the internal management and the discretion of the authority in accepting the sewer system, its remedy, if any, would be in equity where it is established that the courts will not review the actions of governmental bodies or administrative tribunals in the absence of bad faith, fraud, capricious action, or abuse of power. Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 573, 109 A. 2d 331; Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 455, 456, 160 A. 2d 539. The order of the court below dismissing complaint is affirmed. Dissenting Opinion by