Appendix — Saxony Construction Co. v. Board of Supervisors

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APPENDIX A.

Ix tHe Court or Quarter Sessions or THE PEACE IN AND FOR

THE County oF DELAWARE, PENNSYLVANIA.

AppreaL oF Saxony ConstTRUCTION }

CoMPANY FROM REFUSAL OF THE

Boarp oF Supervisors oF}

MarpLe TownsuHip To APPROVE

A CERTAIN SuBDIVISION PLAN.

Mise. Q. S. Docket A-18

Page 437.

June Sessions, 1953.

ADJUDICATION.

This is an appeal by a property owner from the refusal

of the Board of Supervisors of Marple Township to ap-

prove without qualification a subdivision plan of its prop-

erty. Testimony was taken before Ervin, P. J., on June

10 and 11, 1953. Both parties have submitted requests for

findings of fact, conclusions of law and briefs in support

thereof.

From the testimony, exhibits and requests we make

the following

Finpines or Fact.

1. Saxony Construction Company (hereinafter called

owner) is a corporation organized and existing under the

laws of the Commonwealth of Pennsylvania, with its prin-

cipal place of business at 8 West Baltimore Avenue,

Lansdowne, Delaware County, Pennsylvania.

2. The Township of Marple (hereinafter called town-

ship), is a township of the second class situate within

Delaware County, Pennsylvania.

3. Saxony Construction Company is the legal owner

of a certain tract or piece of ground situate in the Town-

ship of Marple, Delaware County, Pennsylvania, which is

described more particularly on a certain plan called Sec-

tion ‘‘*K’’ Rose Tree Woods, made by G. D. Houtman,

(13)

14 Appendix A

Civil Engineers, a copy of which is filed of record in the

case.

4. The tract contains forty-eight lots of at least 12,000

square feet each and is situated in the Trout Run Outfall

West of Sproul Road and North of Cedar Grove Road in

Marple Township.

5. Owner also owns an adjoining area which can be

subdivided into five additional lots.

6. Section ‘‘K’’ of Rose Tree Woods is an area that is

tributary to Trout Run and Whiskey Run, both of which

drain into Crum Creek, a stream, the water from which is

impounded by the Philadelphia Suburban Water Company

for domestic and commercial purposes by the residents of

Delaware County.

7. The tract, in most part, is located in R-1 zoning dis-

trict which requires 12,000 square feet minimum area per

lot. The appellant intends to build 3 bedroom, single

family homes selling for $15,250.00.

8. On March 17, 1953, the said plan of Section ‘‘K”’

was approved by the Delaware County Planning Commis-

sion.

9. On April 6, 1953, owner submitted to township the

aforesaid plan for approval in accordance with the Second

Class Township Code as amended last by the Act of July

10, 1947, P. L. 1481, Section 17, et seq, and Ordinance No.

49-1, enacted and ordained March 17, 1949, of the Town-

ship of Marple.

10. At the said meeting on April 6, 1953, the said plan

was approved by the Supervisors of Marple Township,

provided that a sanitary sewer be installed by Saxony

Construction Company within the boundaries of the streets

appearing in the said plan, however, the supervisors agreed

to issue building permits for the contruction of twelve

homes in the tract on condition that streets and cartways

should not be constructed until this appeal should be heard

Appendia A 15

and disposed of by final judgment by a court of final resort

and jurisdiction.

11. It is the policy of Marple Township to require

sanitary sewers for all homes to be constructed on a lot

area of less than 20,000 square feet.

12. In R-C zoning district, which requires a minimum

lot area of 20,000 square feet, the Supervisors of Marple

Township permit the construction of homes with cesspools

or septie tanks and without sanitary sewer lines.

13. At the present time, there are no sewage disposal

facilities, such as trunk lines and laterals to which a sewage

system installed in Section ‘‘K’’ can be connected.

14. The most feasible sewer connection for Section

‘*K’’ is connection with the Central Delaware County Sewer

Authority (hereinafter called authority) line.

15. The present terminus of the authority’s pipe line is

at the intersection of the Red Arrow Trolley Line and

Crum Creek in Springfield Township.

16. To extend the present terminus for service to Sec-

tion ‘‘K’’ requires construction of 6700 feet of pipe through

Springfield and Nether Province Townships; then 5300 feet

of pipe through Marple Township to the intersection of

Crum Creek and Trout Run; then 12,000 feet of pipe to

Section ‘‘K’’, a total distance of approximately 24,000 feet

or four miles.

17. In the spring of 1952, Marple Township initiated

proceedings to bring all the municipalities tributary to

Crum Creek together for the purpose of studying sanitary

sewer problems in that area and to find a solution thereto.

18. On July 22, 1952, representatives of Springfield

Township, Newtown Township, Upper Providence Town-

ship, Marple Township, Nether Providence Township,

Swarthmore Borough, representatives of the Central Dela-

ware County Sewer Authority, and a representative of the

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16 Appendix A

Delaware County Planning Commission, and of the State

Sanitary Water Board met to confer about the sanitary

sewer problems in the Crum Creek Watershed,

19. The said group, after organizing, requested Damon

and Foster, Civil Engineers, the Delaware County Plan-

ning Board and the State Sanitary Water Board to make

a joint engineering study of ways and means of extending

the existing Crum Creek Interceptor sewer, owned and

operated by the Central Delaware County Sewer Authority,

up the Crum Creek Valley to reach the municipalities in the

upper portion of the watershed.

20. Central Delaware County Sewer Authority has

plans to extend the trunk line 5300 feet to the Springfield

Township line but no starting date or commitments have

been made by the authority.

21. The construction of a sanitary sewer from the

present interceptor sewer terminus to Section ‘‘K’’ would

require approximately from 120 to 140 days.

22. The present Central Delaware County Authority

Sewage treatment plan, is designed to have a capacity to

accommodate a 70,000 population.

23. The said interceptor sewer was designed and is

sufficiently large to accommodate and meet the sanitary

sewer requirements of the up stream areas.

24. Preliminary engineering and related studies for the

extension of the said interceptor sewer are now being made

and have progressed without delay.

25. At the present time there is no provision in the

budget of township for the construction of a sewer line to

accommodate Section ‘‘K.’’

26. At the present time there are no ordinances or

minutes relating to legislation by township for the construc-

tion of a sewer line to accommodate Section ‘‘ K.’’

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Appendia A 17

27. At the present time township has not attempted

to obtain rights of way for the construction of a sewer line

to accommodate Section ‘*K.’’

28. The number of homes in the Crum Creek Water-

shed has inereased from approximately 100 in 1949, 715

in 1953 (at time of hearing) and is estimated to increase to

a potential of 4400 houses with a 14,000 population war-

ranted by present zoning.

29. The cost of a cesspool will be approximately

$300.00,

30. The estimated cost of constructing sanitary sewers

within Section ‘‘*K’’ before streets are constructed is

$10,100.00 or approximately $210.40 per each of the 48

lots within it.

31. If such installation is after the streets are con-

structed, the cost will be at least $114 per foot of frontage

additional, aside from the then damage to paved cartways.

32. Owner has graded a large portion of Section ‘‘K”’

to solid rock, pushing the earth to other areas within Sec-

tion ‘‘K’’ to various depths up to six feet.

33. Before being disturbed by grading the geological

structure of the soil consisted of a shallow layer of top

soil, several feet of decomposed mica schist, below which is

undecomposed mica schist, which is hard rock, massive,

tight and very deep.

34. Test borings in Section ‘‘K’’ show that the layer

of decomposed mica schist is very porous and that sewage

from cesspools would descend rapidly to the top of the un-

decomposed mica schist, which is impervious; that the soil

bacteria would have little chance to work on the sewage

and that it would run along the top of the undecomposed

mica schist in practically a pure state and would be dis-

charged into Trout Run in a few hours.

35. The average soil in Section ‘‘K’’ absorbs water at

the rate of approximately 21 gallons per square foot.

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18 Appendix A

36. The average consumption of water in the average

home is 150 gallons per day.

37. The area has developed so rapidly that it is reason-

able municipal planning to require sanitary sewers to be

constructed within the development and before streets are

constructed, notwithstanding the fact that trunk lines are

not yet beyond the planning stage.

38. Under all of the evidence, it is not unreasonable,

arbitary or capricious to require the construction of sani-

tary sewers within a development prior to the approval

of a subdivision plan.

Discussion.

This in an appeal by a property owner from the refusal

of the Board of Supervisors of Marple Township to ap-

prove without qualification a subdivision plan of its prop-

erty. The qualification in question was the requirement

by the Supervisors that a sanitary sewer be installed by

the appellant within the boundaries of the streets appearing

in the plan. The subdivision plan submitted showed the

appellant was the owner of forty-eight losts of at least

12,000 square feet each, which are situated in the Trout

Run Outfall Watershed. Trout Run and Whiskey Run

both drain into Crum Creek, the water from which is

impounded by the Philadelphia Suburban Water Company

for domestic and commercial purposes by the residents of

Delaware County. It is the policy of Marple Township

to require sanitary sewers for all homes to be constructed

on a lot area of less than 20,000 square feet. It does permit

the construction of homes with cesspools or septic tanks

if the lot area is in excess of 20,000 square feet. The

authority upon which the Township acted can be found

in Article XII-A, which was added to the Second Class

Township Code by the Act of May 24, 1951, P. L. 370,

See. 16.

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Appendix A 19

See. 1206-A (¢) (53 PS 19093-1256) is as follows:

‘Before approving any subdivision plan for recording,

the board of township supervisors shall either require

that the necessary grading, paving and other street

improvements, including, where specified by the board,

curbs, sidewalks, street lights, fire hydrants, water

mains, sanitary sewers and storm sewers, shall have

been installed in striet accordance with the standards

and specifications of the township, or that the township

be assured by means of a proper completion guarantee,

in the form of a bond or the deposit of funds or seeu-

rities in escrow sufficient to cover the cost of the re-

quired improvements, as estimated by the township

engineer or township supervisors, that the said im-

provements will subsequently be installed by the

owner.”’

The appellant, however, contends that the requirement

is arbitrary and unreasonable in this case because of the

fact that at the present time there are no sewage disposal

facilities such as trunk lines and laterals to which a sew-

age system installed in this property can be connected.

The most feasible sewer connection is with the Central

Delaware County Sewer Authority, the present terminus of

which line is approximately four miles away. However,

since the spring of 1952 Marple Township, together with

other municipal subdivisions, the Delaware County Plan-

ning Commission and the Sate Sanitary Water Board, have

been making joint engineering studies of the ways and

means of extending the Central Delaware County Sewer.

It is true that these studies are still in the planning stage

but they are far beyond the ‘‘dream’’ stage. The enormous

growth of the territory involved indicates that the exten-

sion of the sewer is a necess'ty and that it is only a question

of time until it must become a reality. The question before

the Court, therefore, is whether the Supervisors of Marple

Township must wait until it becomes a reality before re-

20 Appendix A

quiring subdivisions to connect with it or whether they can

require developers to be in a position to connect with it

at that time. It is clear that it is not only cheaper to lay

sewers before streets are constructed than it would be to

open a street after it was once laid but it is also a wise pre-

caution since the opening of streets disrupts traffic and im-

pairs the operation of fire equipment, ete.

In order not to prevent the appellant from having the

present use of its property, the Township has agreed to the

construction of homes at the present time by the installation

of cesspools as a temporary measure. The appellant com-

plains that this is double expense. However, when we look

into the future we find that this additional expense is only

being accelerated. It is true that at that time the builder

would probably be out of the picture and that the subse-

quent expense of the cost of a sanitary sewer would then

devolve upon the buyers of the properties. However, any

reasonable buyer with knowledge of the circumstances

would certainly place a higher present value on a prop-

erty where the sanitary sewer was already laid than he

would for one which he knew would be subject to a future

assessment for such facility.

Both parties have referred to the case of Appeal from

Radnor Township Disapproval of Subdivision Plan, 40 Del.

Co. Repts. 106. We do not believe that that case is control-

ling. It was held in that case that it is not reasonable for

a municipality to require a developer to construct a trunk

line beyond his own development. It is true that in its dis-

cussion the Court commented on the fact that there were

at that time no connecting sewers and that the segment in-

volved would be simply a dead end sewer and that there

was no evidence as to when, if ever, the connecting sewers

would be built. However, in the present case the evidence

shows that it is only a question of time until the Central

Delaware County Authority Sewer will be extended.

We therefore find that it is reasonable municipal plan-

ning to require sanitary sewers to be constructed within a

—

Appendix A 21

development before streets are constructed, notwithstand-

ing the fact that connecting trunk lines are not yet beyond

the planning stage. In this particular case there is an ad-

ditional reason justifying the Township’s position. The

tract in question consists of a shallow layer of top soil, sev-

eral feet of decomposed mica schist, below which is un-

decomposed mica schist, which is hard rock, massive, tight

and very deep. The layer of decomposed mica schist is very

porous and sewage from cesspools would descend rapidly

to the top of the undecomposed mica schist, which is im-

pervious. The soil bacteria would have little chance to work

on the sewage and it would run along the top of the unde-

composed mica schist in practically a pure state and because

of its close proximity to Trout Run it would be discharged

into Trout Run in a few hours.

It follows that under all the evidence it is not unrea-

sonable, arbitrary or capricious to require the construction

of sanitary sewers within the development prior to the ap-

proval of the subdivision plan submitted.

Concuiusions or Law.

1. Because of the rapid development of the area in

which the appellant’s property is situated, it is reasonable

municipal planning to require sanitary sewers to be con-

structed within the development and before streets are con-

structed, notwithstanding the fact the trunk lines are not

yet beyond the planning stage.

2. Under all the evidence it is not unreasonable, arbi-

trary or capricious to require the construction of sanitary

sewers within the development prior to the approval of a

subdivision plan.

3. The appeal should be dismissed at the cost of the

appellant.

22 Appendiz A

Decree Nist.

Awnp Now, to wit: December 17th, A. D. 1953, upon con-

sideration of the foregoing case, it is ordered, adjudged

and decreed that the appeal of Saxony Construction Com-

pany from the refusal of the Board of Supervisors of

Marple Township to approve a certain subdivision plan be

and it is hereby dismissed.

The appellant shall pay the costs.

OrpeER.

The Clerk of Court is directed to give notice imme-

diately to the parties or their attorneys of record of the

filing of the above Decree Nisi and if no exceptions be filed

thereto within ten days after the service of such notice to

enter the Decree Nisi as a final decree.

Haroup L. Ervin,

President Judge.

A LT FS SES

APPENDIX B.

In THE Court or QuaRTER SESSIONS OF THE PEACE IN AND FOR

THE County or DeELawarE, PENNSYLVANIA.

AppeaL or Saxony Consraucrion | Mise. Q. S. Docket A-18

ComPpaNY FROM REFUSAL OF THE Page 437.

Boarp or Swupervisors oF}

MarpLe TownsHip To APPROVE

i 1953.

a Certaty Susprvision Pian. June Sessions, 195

Oprnion.

Saxony Construction Company, Appellant, owners of

a tract of land in Marple Township, submitted under Ordi-

nance No. 49 a plan for subdivision of Section ‘‘K’’ of said

tract, known as Rose Tree Woods in said Township. The

Township Supervisors approved said plan, upon condition

that Saxony would construct local sanitary sewer lines

within the boundary of the streets appearing on said plan.

The Supervisors agreed to issue building permits for the

construction of twelve houses in the tract, on condition that

streets and cartways should not be constructed until this

Appeal should be heard and disposed of by final judgment

of a court of final resort. Saxony was permitted also to

install cesspools or septic tanks to permit immediate use of

these houses because there was no trunk line sewer to which

the local sewer lines could be connected in the immediate

future.

Saxony appealed to this court and complained of the

Township’s requirement that sanitary sewers be installed

when the streets are laid. After hearing and submission of

requests for Findings of Fact and Conclusions of Law this

Court, Ervin P. J., adjudicated that under the facts it is

reasonable municipal planning to require sanitary sewers to

be constructed within the development, and the Appeal

should be dismissed. Appellant filed Exceptions which have

(23)

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24 Appendix B

now been argued before the court en bane with written

briefs having been filed by both sides. These Exceptions

are now ready to be disposed of.

This case does not involve a question of requiring the

developer to construct a trunk line or interceptor sewer

outside of the boundary lines of his own property. It deals

with a requirement of the Township that before the streets

and cartways are laid out and completely paved that local

sanitary sewer lines be laid and constructed in the bed of

each street. This requirement is the ordinary and usual

one specified by most Townships in order that the subdivi-

sion plan may be approved and the said streets eventually

taken over by the Township after all the utilities including

local sanitary sewer lines have been installed and approved.

The Appellant certainly could have no valid objection to

the requirement that he construct local sanitary sewer lines

in his development if there were no other facts in the case

which said Appellant says should act to excuse him from

constructing the sewer lines at this time. He contends that

the requirement is arbitrary and unreasonable in this case

because of the fact that at the present time there are no

sewage disposal facilities such as trunk lines and laterals

to which a sewage system installed in his property can be

connected. The most feasible sewer connection is with the

Central Delaware County Sewer Authority, the present

terminus of which line is approximately four miles away.

He further says that the area of his building lots is such

that the use of cesspools or septic tanks is a sanitary and

safe method of sewage disposal and that the public health

would be properly safe-guarded, as the Delaware County

Planning Commission has ruled that lots of 10,000 square

feet or more in area can safely be equipped with on the site

sewage disposal by use of cesspools and septic tanks. The

Appellant’s lots vary from 12,000 square feet up to ap-

proximately 20,000 square feet. The Appellant further

says that it is unreasonable to require him to pay to con-

struct sanitary sewer lines in the bed of the streets and also

Appendiaz B 25

to pay to construct a cesspool or septic tank on each prop-

erty and that this amounts to double assessment or taxation

for an improvement which does not service his property.

The authority upon which the Township acted is found

in Article XIX-A, which was added to the Second Class

Township Code by the Act of May 24, 1951, P. L. 370, See.

16, See. 1206-A-(e) (53 P. S. 19093, 1256). This provides

that the Township, before approving any subdivision plan

for recording, shall among other things require that . . .

‘sanitary sewers and storm sewers, shall have been in-

stalled in strict accordance with the standards and specifica-

tions of the Township, or that the Township be assured by

means of a proper completion guarantee . . . that the

said improvements will be installed by the owner’’.

There is no question, therefore, but that the Township

had the authority to require the construction of the sanitary

sewers under the provisions of the Code. The real ques-

tion now is, ean the Township require the local sewer lines

to be built before a connecting trunk line or interceptor line

is in existence, ready to serve the Appellant’s property?

We are of the opinion that this question must be an-

swered in the affirmative and the Exceptions heretofore filed

by the Appellant must be dismissed. We will not discuss

each exception separately as the answer to the problem is

found in the fundamental law controlling the police power

and its application to municipal improvements designed to

protect the public health, safety, morals and welfare. The

authority is recognized, but how it is exercised may at times

be questioned.

The Pennsylvania Supreme Court has passed on this

question in the case of Oil City Appl. v. Oil City Boiler

Works, 152 Pa. 348, 353, in the following language:

‘*As we have seen, the authority ‘to cause sewers

of all kinds to be constructed or reconstructed,’ is

vested exclusively in councils. In the exercise of their

legislative judgment, enlightened by the skill and ex-

perience of the city engineer, they have an undoubted

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26 Appendix B

right to adopt a system of sewerage for each sewer

district, and in doing so determine the location of

main, as distinguished from merely local or lateral

sewers. Whether a main sewer or a merely local or

lateral one is necessary on a particular street or por-

tion of a street is a question of engineering and legis-

lative judgment, vested exclusively in councils, and not

reviewable, except under extraordinary circumstances.

?

Whether or not a ‘‘proper’’ outlet has been provided

for a proposed sewer is a matter left to the discretion of

the village authorities, with which the court will not inter;

fere by injunction restraining the construction of the sewer,

unless such discretion has been grossly abused. Johnson

v. Avondale, 1 Ohio C. C. 229.

A municipal board has the power to contract for the

construction of a sewer, although it has no outlet except

through a plan or system of which it is a part but which

cannot be completed ; since it is open to the board to adopt

plans to dispose of sewage in some other mode, and may

gather it for that purpose. Harney v. Benson, 113 Cal.

314, 45 Pac. 687.

The fact that each of the Appellant’s properties will

have to be serviced by two methods of sewage disposal is

advanced earnestly by him as a reason why such require-

ments are unreasonable, unjust and oppressive. We cannot

agree with the Appellant that he is being victimized or

treated unfairly. Let us suppose that the Township relaxed

its regulations as to local sewer lines and were to approve

the subdivision plan provided cesspools or septic tanks only

were permitted. The record in this case shows that the

population growth in Marple Township is increasing at an

exceptional rate and that within a reasonably short time

the entire Township will have to be equipped with sanitary

sewers. Eventually sewers will have to be installed in the

tract of the Appellant and then the cartway of each street

aa

Appendix B 27

would have to be excavated at increased cost and incon-

venience. The individual property owner would then be

liable for the increased cost of the sewer line at that time.

Under the present regulations the sewer line will be in-

stalled in the streets before they are paved and will cost

less and obviate the necessity of tearing up paved streets.

The installation of the sewer line will add value to each

property and every likely the cost of same can be absorbed

in the sale price of each property.

A search of the cases has not disclosed a case in point

on this specific question in Pennsylvania. However, a case

closely in point was decided by the Illinois Supreme Court

in City of Chieago v. Hirsehl, 275 Ill. 60, 113 N. E. 899.

The city ordained that in wide streets two water mains

would have to be installed, one on each side. The reason

advanced for this was that most wide streets would ac-

commodate trolley lines and, to permit only one water main

would result in inconvenience and hazard when the trolley

tracks would have to be disturbed to reach the water main.

In narrow streets only one water main was required by

the city regulations. The plaintiff appealed the regulation

as unreasonable, unjust, oppressive and discriminatory.

The Supreme Court said no in the following language:

‘*We cannot say that an ordinance requiring two water

mains in a street is so unreasonable as to constitute an

abuse of discretion by the council or an arbitrary im-

position of an unjust burden upon the owners of prop-

erty. The necessity, character and extent of the im-

provement are committed to the judgment of the city

council, and their judgment is conclusive, unless the

court is clearly satisfied that their action has been op-

pressive and without reasonable grounds. This case is

not of that character. There may be a fair room for

difference of opinion as to the desirability of having

two water mains, but we cannot say that the decision of

that question by the council was unreasonable, unjust

or oppressive.’’

co Re Aint WS als ants

Denes te Hotei tai Ps ees

28 Appendix B

The record in the case at bar indicates that the Super-

visors of Marple Township have not and are not now deal-

ing with the Township sewer problem haphazardly. On

the contrary, much consideration and intelligent applica-

tion has been put forth in an endeavor to serve and protect

the public interests and to prevent the occurence of future

inequities. It certainly amounts to intelligent and proper

municipal management to require a developer of land in the

Township to install all of the required utilities, ete. that

are usually a part and parcel of modern living. If the

developer does not do this, then it remains for the unfor-

tunate individual property owner to foot the bill at some

future date and, usually at greatly increased cost.

The Exceptions filed by the Appellant to the Adjudica-

tion of this court heretofore handed down must be dis-

missed. Therefore the following is made:

Frvat Decree.

Anpb Now, to wit: this 27th day of April A. D. 1954, a

Decree Nisi having been filed in the above case on December

17, 1953 and certain exceptions thereto having been filed

on behalf of the Appellant Saxony Construction Company

and the said matter having been argued before the Court

en bane and after due consideration it is hereby Orperep,

Apsupcep and Decreep:

(1) That the Exceptions filed in the said case be and

the same are hereby dismissed, and;

(2) The appeal of said Saxony Construction Company

from the refusal of the Board of Supervisors of Marple

Township to approve a certain subdivision plan be and it is

hereby dismissed.

The Appellant shall pay the costs.

(3) An exception is hereby allowed to Saxony Com-

pany to the action taken by the Court herein.

By THE COURT,

Ws. R. Toat,

Judge.

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SGT ET Wess

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Serr

APPENDIX C.

No. 113

In tHe Superior Court or PENNSYLVANIA

Puabeveuia District.

In RE: APPEAL OF Saxony ConsTRUC- )

TION Company FROM Decree Dis-

MISSING APPEAL FROM Boarp or }

Supervisors oF Marpte Town-

SHIP.

No. 44 October Term,

1955.

4

Appeal from the Final Decree of the Court of Quarter Ses-

sions of the Peace in and for the County of Delaware

as of June Sessions, 1953, Mise. Q. S. Docket A-18,

Page 437.

Fiiep: April 18, 1955.

Opinion by Woopsmnr, J.

This is an appeal by the Saxony Construction Com-

pany from the decree of the Quarter Sessions Court of Del-

aware County dismissing its appeal from the refusal of the

board of supervisors of a second class township to approve

a subdivision plan submitted to the supervisors by the com-

pany.

Paragraph (c) of Section 1206-A, added to The Second

Class Township Law of May 1, 1933, P. L. 103 by the Act

of May 24, 1951, P. L. 370 § 16, 53 P. S. § 19093-1256, pro-

vides that the board of township supervisors before approv-

ing any such plan ‘‘shall either require that the necessary

grading, paving and other street improvements, including,

where specified by the board, . . . sanitary sewers and

storm sewers shall have been installed in strict accordance

with the standards and specifications of the township’’ or

(29)

30 Appendia C

that the township receive guarantee that it will be done.

Section 1140 of The Second Class Township Law, supra, as

amended 53 P.'S. § 19093-1140 provides for the approval

by township supervisors of plans for roads to be con-

structed, opened or dedicated in the township.

When the construction company submitted its subdivi-

sion plan, which included roadways, to the Board of Super-

visors of Marple Township the supervisors approved it

provided that a sanitary sewer be installed by the construc-

tion company within the boundaries of the streets appear-

ing in said plan. This amounts to a refusal unless the ap-

pellant complies with the conditions.

There is no sanitary sewer system in the immediate

vicinity with which the sewer pipes required by the super-

visors to be installed by the appellant could be connected,

nor has the township made any legally binding commitments

for the construction of, or connection with any such system.

The sewers thus required could not be presently used.

The appellant, contending that under all the circum-

stances the requirement of the supervisors was arbitrary,

capricious, unreasonable and without legal authority, ap-

pealed to the Quarter Sessions Court of Delaware County.

Paragraph (f) of the aforesaid section 1206-A (53 P. S.

§ 19093-1256(f) provides for appeal as follows:

‘‘In any case where the board of township super-

visors disapproves a subdivision plan, any person ag-

grieved thereby may, within thirty days thereafter,

appeal therefrom, by petition to the court of quarter

sessions of the county, which court shall hear the mat-

ter de novo and after hearing enter a decree affirming,

reversing or modifying the action of the board, as may

appear just in the premises. The court shall designate

the manner in which notices of the hearing of any such

appeal shall be given to all parties interested. The

decision of the court shall be final.’’

Section 1141 of The Second Class Township Law,

supra, as amended, 53 P. 8. § 19093-1141 provides for an

i

Appendix C 31

appeal in practically the same language from refusal of the

township supervisors to approve road plans under section

1140, supra.

The Quarter Sessions Court of Delaware County after

hearing de novo, decree nisi and argument before the court

en bane dismissed the appeal.

Both the aforesaid sections provide that the decision

of the Quarter Sessions Court shall be final. This has the

same effect as if the legislature had said that no right of

appeal is permitted. White Township School Directors

Appeal, 300 Pa. 422, 150 A. 744 (1930). Where the legis-

lature expressly denies the right of appeal, this court’s

scope of review is limited to the question of the lower

court’s jurisdiction and the regularity of the proceedings ;

the merits of the controversy cannot be considered.

In Kaufman Construction Co. v. Holeomb et al., 357

Pa. 514, 517, 518, 519, 55 A. 2d 534 (1947) the present Chief

Justice of our Supreme Court said: ‘‘Where a statute ex-

pressly denies the right of appeal to a court from the ac-

tion of some agency of government, or to an appellate court

from the decision of a court of original jurisdiction, to what

extent is a disappointed claimant thereby prevented from

obtaining a complete judicial review of his claim? After

some vacillation by the courts in regard to the proper an-

swer to that question (citing), the law is now reasonably

clear, a distinction being made between the effect of a stat-

ute which merely fails to provide for a right of appeal and

the effect of one which expressly denies that ae

The distinction thus made has been reiterated and rein-

forced in a multitude of subsequent cases holding that

where a statute expressly provides that there shall be no

appeal the scope of appellate review is limited to the ques-

tion of jurisdiction and the regularity of the proceedings ;

the merits of the controversy cannot be considered even

though the interpretation given to the facts or the law by

the governmental agency or the court below may have been

erroneous. It is only where the statute is silent on the ques-

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32 Appendix C

tion of appeal that a review by certiorari may be had ‘in

the broadest sense’ and the court may consider the record,

including the testimony, to determine whether the findings

are supported by competent evidence and to correct any

conclusions of law erroneously made.”’

This has been repeated as late as 1954 in Delaware

County National Bank v. Campbell, 378 Pa. 311, 316, 106

A. 2d 416 (1954). See also Twenty-first Senatorial Dis-

trict Nomination, 281 Pa, 273, 126 A. 566 (1924); Grime v.

Dept. of Publie Instruction, 324 Pa. 371, 375, 188 A. 337

(1936).

The federal constitution does not require the legis-

lature to give a litigant an appe:' from a lower court.

Hibben v. Smith, 191 U. S. 310, 5. ', 24S. Ct. 88 (1903) ;

Spaulding v. Douglas Aireraft Co., 154 F. 2d 419, 427

(1946).

The questions argued before us relate to the merits of

the controversy and not the jurisdiction or the regularity

of proceedings. There thus being no contention concerning

the only questions we could consider,

The appeal is dismissed.

Rhodes, P. J. and Wright, J. coneur in the result.

Ervin, J. took no part in the consideration or decision

of this appeal.

ae oe

pay adap |.

~ wr

SSE

HAROLD 8. Wit

ln THE

Supreme Court of the Hnited States

October Term, 1955

No, 694

SAXONY CONSTRUCTION COMPANY,

Appellant

v.

BOARD OF SUPERVISORS OF MARPLE

TOWNSHIP,

Appellee

MOTION TO DISMISS APPEAL

Appeal from the Court of Quarter Sessions of Dela-

ware County, Pennsylvania.

Josepn D. CaLHoun,

218 West Front Street,

Media, Pennsylvania,

Attorney for Appellee.

Of Counsel:

LINDENMUTH & CLass,

106 County Building,

Media, Pennsylvania.

Murrelle Printing Com , Law Printers, 201-3 Lockhart St. . Pa.

James Patterson, Delaware County Representative, Media, Pa.

a *

Loi:

LA LOO,

Lote Cee * f

ote

nt mop: re.

SAREE PEE OY

eA) ee

TABLE OF CONTENTS

_—_— Pace

NE UNO 8 nnn dn ese ceh c0ndnb Ceri sas werk eweds 1

ens DOW «6c cn cciai ccccedvesSeeei deed 2

mourn of the Catto ios 65s nds + écnaseveeeceveees 3

Argument on the Jurisdictional Question:

I. The appeal to the United States Supreme

Court was not taken within the time fixed by

law for the taking of an appeal from the state

COUNTS COMIOR: eo Cedi Oetedinnineis caste 6

II. The decision appealed from did not draw in

question the validity of a statute of the state

on the ground of its being repugnant to the

Constitution, treaties or laws of the United

States. The appeal does not present a sub-

stantial Federal question and any conceivable

Federal question sought to be reviewed here

was not timely or properly raised or expressly

passed on in the court below ................ 7

Te Peed Por re es eer eee 11

Appendix A—Appellant’s Exceptions .............. 13

Appendix B—28 U.S.C.A. Section 2101 (ce) ......... 20

Appendix C—Rule 69, Supreme Court of Pennsyl-

MEE cenc chibi oon c0 bn deakeen ees pase aeeans 21

Appendix D—Rule 73, Supreme Court of Pennsyl-

EE oo lak cc cecvcdsaeeseteeesinesciaee 22

OO ET TORO

TABLE OF CITATIONS

Caszs:

Adler v. Board of Education, 342 U.S. 485, 496 ..... 10

Atchison, Topeka & Santa Fe Ry. Co. v. P.U.C. of

Ces SU CI IE vo ocd enteccvdveneveweaes 11

Bailey v. Anderson, 326 U.S. 203, 206-7 ............ 10

Bowe v. Scott, 233 U.S. 658, 664-5 ...........2000- 8

Dewey v. Des Moines, 173 U.S. 193, 198 ............ 10

Edelman v. California, 344 U.S. 357 .............. 9

Ex parte Williams, 277 U.S. 267 ......cccccccccces 11

Grisbord v. Philadelphia, 148 Pa. Super. Ct. 91, 24

i ae a ee en wad op enh’:

Herndon v. Georgia, 295 U.S. 441, 442-3 ............ 8

Hulbert v. Chicago, 202 U.S. 275 ..........cseceees 9,10

Kaseak v. United Societies, 117 Pa. Super. Ct. 423,

Sec lt saci edn cab eh Anesteaheepndesse 9

Levenite v. Lancaster, 215 Pa. 576, 74 A. 782 ........ 9

Live Oak Ass’n v. Railroad Commission, 269 U.S.

NE 5 447-5 panes picdedtareesicbehes 10

Lynch v. New York ex rel. Pierson, 293 U.S. 52,54 .. 10

McLaughlin v. Monaghan, 290 Pa. 74, 138 A. 79 .... 9

Middletown Boro. v. Pa. P.U.C., 143 Pa. Super. Ct.

Et SPE a vilecckeveek ourk scandens vy oo 9

Montgomery Co. B. Assn. v. Rinalducci, 329 Pa. 296,

fe Rn VE tae 2 er aR i eee 9

Muse-Art Corp. v. Philadelphia, 373 Pa. 329, 95 A.

RRSP rn CS Sent bas Sey eae er 9

Nashville, Chattanooga & St. Louis Ry. v. Walters,

EE aso tsdaech ach eseusan neve dese Cee 11

New York Central & H. R. Co. v. New York, 186 U.S.

I eax Asks ak Oe bi v eee SEhTES Ci Rmaes 8

ii

Osborne v. Clarke, 204 U.S. 565, 567-8 .............. 10

Oxley Stave Co. v. Butler County, 166 U.S. 648, 655 .. 7,8

Poulos v. New Hampshire, 345 U.S. 395 ............ 11

Radio Station WOW vy. Johnson, 326 U.S. 120, 128 . 10

Spitzer v. Philadelphia Transp. Co., 348 Pa. 548, 36

DE phe eens se eee sare dhe Phddaiewsc wees os 9

Woldow v. Dever, 374 Pa. 370, 97 A. 2d 777 ........ 9

Whitney v. California, 274 U.S. 357, 362-3 ........ 10

MISCELLANEOUS :

Constitution of the United States:

Sel aac Bae cx dale he hws bce Ga ll

Pe IND iss its owe ninkoeuslans Lksdnwe ll

Fourteenth Amendment ...................... 1l

Rules of the Supreme Court of Pennsylvania:

SEE Sisich dinccdsesnppdeta dc kiwsineceukeus 6, 21

SN BES a Stow 1 ain Ou.2 Oana babe ded dG hick Sok Sa 6, 7, 22

Rules of the Supreme Court of United States:

ME cotsatewsneewusyes astdeks ssl <las eas we 6

et Es an bask dkwhh idadeeewe ae 6

28 U lic I Mas gras ea osc 20

ili