# JANNETTA v. Recklitis > Superior Court of Pennsylvania · March 20, 1969 · 214 Pa. Super. 171 URL: https://www.frixlaw.com/law-library/cases/9765130 ## Case - **Full name:** Jannetta Et Al., Appellants, v. Recklitis - **Court:** Superior Court of Pennsylvania - **Decided:** March 20, 1969 - **Citations:** 214 Pa. Super. 171; 251 A.2d 713; 1969 Pa. Super. LEXIS 1389 - **Precedential status:** Published - **Opinion:** Dissent by Hoffman - **Judges:** Wright, Watkins, Montgomery, Jacobs, Hoffman, Spaulding, Hannum - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9765130 ## Opinion text *177 Dissenting Opinion by Hoffman, J.: In my opinion, the majority has ignored the intent of the parties to this contract and has reached its conclusion based on an analysis which ignores the reality of the situation. In November of 1964, the sellers received notice from the Township of Abington, Montgomery County, Pennsylvania to connect their property to the township sewer in accordance with the provisions of §204 of Abington Township Ordinance No. 878. As the majority opinion reflects, that ordinance specifically authorizes the Department of Public Health of the Township to make the connection, charging this service to the landowner. The sellers did not comply with this notice and never made the connection. Over two years later they entered into an agreement to sell the property. The agreement provided that any notices filed prior to the date of the agreement for which a lien could be filed should be complied with at the expense of the seller. After settlement, plaintiffs were required to make the connection at a cost in excess of one thousand dollars. This suit was brought to recover the cost of that connection. It should first be noted that the parties entered into their agreement in a Township where the ordinance allowed the Township to make a sewer connection, if the landowner failed to do so. Such service would result in a “municipal claim” under the General Municipal Law, Act of May 16, 1923, P. L. 207, §1, 53 P.S. §7101, which states: “The words ‘municipal claim’ as used in this act..., mean and include... (1) the claim arising out of, or resulting from, . . . service supplied, work done or improvement authorized and undertaken by a municipality . . . and a lien therefor be not filed, but becomes filable within the period and in the manner herein provided.” *178 Section 3 of the said Act, 53 P.S. §7106, provides that any such municipal claim becomes and is declared to be a lien on said property. In short, the ordinance states that the township might make the connection on its own. The General Municipal Law provides that if it did make such connection, it would constitute a municipal claim and an automatic lien. This would clearly fall within the language of the agreement of sale relating to a municipal notice “for which a lien could be filed.” (Emphasis added). The majority opinion and the appellees do not, apparently, disagree with the above interpretation to this point. The appellees claim that no lien could ever be filed, however, because: “The authority for a Township of the First Class to require connection to a township sewer is found in the First Class Township Code, Act of June 24, 1931, P. L. 1206, Art. XXIV, sec. 2401, as amended; 53 P.S. 57401. The authority to require connection to a township authority’s sewer is found in the next succeeding section of the Code, i.e., 53 P.S. 57401.1. In both sections the Township is given authority to impose penalties for failure to comply with an ordinance that requires connection to the sewer. In neither case is the Township authorized to actually make the connection and file a lien.” The majority accepts appellees’ argument which, reduced to the most simple terms, concludes that the ordinance is illegal to the extent that it authorized the township to make sewer connections on its own. Since the township could not have made the connection, a municipal claim in this regard could never have arisen, and, therefore, no lien could have been filed. On this basis the majority sustained the dismissal of plaintiffs’ complaint before trial. *179 The error in this analysis, in my opinion, arises from the majority’s concern with the legality of the ordinance, whereas its attention should have been focused on the intent of the parties to the contract. In entering judgment on the pleadings, the court has denied the parties the opportunity to establish their intent. In construing any contract, we give primary effect to the intent of the parties manifest at the time of its execution. United Refining Co. v. Jenkins, 410 Pa. 126 , 189 A. 2d 574 (1963); Unit Tending Corp. v. Lacas, 410 Pa. 614 , 190 A. 2d 298 (1963). Here, when the agreement of sale was made, it is probable, that both buyer and seller, or their representative attorneys or real estate brokers, believed that the ordinance authorizing the township to make sewer connections was valid, gave rise to a lien and was binding upon the parties. Indeed, it is improbable that the seller entered into this agreement under the assumption that the township ordinance would be held illegal at some future date. Moreover, the intent of the parties could be established by reference to the practice in Abington Township at that time. If it could be established that the township was in the practice of making sewer connections and filing liens thereon, further proof would be provided that the parties were acting pursuant to that practice. In short, I believe that the sellers may now be seeking to hide behind a technical objection to the ordinance which was not apparent to them at the time of the signing of the agreement. Simply stated, in construing this contract, it was the obligation of the lower court to determine not what liens could be filed but what liens the parties thought could be filed. The intent which we should seek to ascertain is what no *180 tices in the opinion of the parties to the contract were to be the obligation of the seller. 1 This determination, of course, can only be made by the finder of fact after a trial where all of the parties have testified. Judgment on the pleadings should only be entered when a case is free and clear from doubt. Toth v. Philadelphia, 213 Pa. Superior Ct. 282 , 247 A. 2d 629 (1968) ; Mallesky v. Stevens, 427 Pa. 352 , 235 A. 2d 154 (1967). I would vacate the order of the lower court and remand this case for trial. Wright, P. J., joins in this dissent. The significance of the majority’s opinion will extend far beyond the limited issues in this case. Its decision, in effect, holds illegal certain provisions of the township ordinance. Under such circumstances Abington Township should itself have the opportunity to present its argument on this question either in this or some future case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9765130. Public record. Not legal advice.