Tri-Community Sewer Authority v. F.E. Krebs ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tri-Community Sewer Authority, :
Appellant :
:
v. : No. 1188 C.D. 2020
: ARGUED: October 21, 2021
Florence E. Krebs :
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER FILED: November 30, 2021
Tri-Community Sewer Authority appeals from the order of the Court of
Common Pleas of Indiana County denying the Authority’s request for injunctive
relief in the nature of an order requiring Florence E. Krebs (Owner) to connect her
garage, which has a bathroom, directly to the sewer system or authorizing the
Authority to make the connection and place a lien on the property if Owner refused.
We affirm.
The operative facts, which are not disputed, are as follows. Owner
owns and resides at a property in West Wheatfield Township, Indiana County. There
are two separate structures on the property: a house occupied by Owner and a garage
constructed in 2003. The garage contains a bathroom, including a toilet, sink, and
shower,1 that emit sewage but are attached to the Authority’s sanitary sewage system
1
The trial judge, who conducted a view of the garage, did not find, nor does the record contain
evidence that, besides the bathroom, the garage was otherwise fitted out for habitation. The chair
(Footnote continued on next page…)
through the house’s connection, rather than having separate connections as required
by rules adopted by the Authority in 2012 (2012 Regulations). In late 2017, the
Authority confronted Owner with its concerns that the garage was a residential
structure and demanded her to bring the property into compliance with its current
rules and regulations, Owner refused, and the Authority initiated its complaint in the
trial court.
The trial court conducted a nonjury trial in August 2020, at which it
received testimony and during which the trial judge conducted a view of the property
at issue. After receiving post-trial memoranda, the trial court issued an order in
September 2020 denying the relief sought by the Authority; determining that the
2012 Regulations adopted by the Authority did not apply to the garage that was built
in 2003; and concluding that Owner was in compliance with the 1984 Regulations,
because the garage was not a separate “property.” The Authority appealed.
The Authority raises two issues: first, whether the 2012 Regulations
apply to Owner’s garage retroactively, and second, whether the terms “property” and
“improved property” referred to in the 1984 Regulations refer to structures as
opposed to lots or parcels of land. The Authority styles its second issue as two
separate issues, corresponding to separate sections of the 1984 Regulations, but as
we deem this distinction irrelevant, we address it as one issue.
First, the Authority argues that its 2012 Regulations apply retroactively
to require a separate sewer connection for the garage. Section 6.1 of the 2012
Regulations provides, in pertinent part, as follows:
of the Authority testified that she had seen lights and a television on in the garage in the evenings
from the exterior, and a car parked there. (Notes of Testimony “N.T.” at 38-40; Reproduced
Record “R.R.” at 128a-30a.) Owner and her son, who lives with her, both testified that no one had
lived in the garage.
2
The main drainage system of every house or building shall
be separately and independently connected with the street
sewer. Where existing conditions preclude separate
connections, the Authority will consider granting a waiver
of this regulation.
[2012 Regulations at Section 6.1 (emphasis supplied); Reproduced Record “R.R.”
at 209a.] The relevant sections of the 1984 Regulations provide, in pertinent part,
as follows:
Section 1. DEFINITIONS
....
1.6 Improved Property: Any property upon
which there is erected any structure intended for
continuous or periodic habitation, occupancy or use by
human beings or animals and from which structure
Sanitary Sewage . . . shall be or may be discharged.
....
Section 4. INDIVIDUAL SERVICE LINES AND
CONNECTIONS
4.1 Each property must have its own individual
Service Line. Each unit of a double house or townhouse
having a solid vertical partition wall shall be considered a
separate property requiring individual sewer Connections.
(1984 Regulations at Sections 1.6 and 4.1; R.R. at 176a and 180a.)
The trial court did not identify its grounds for declining to retroactively
enforce the 2012 Regulations.2 However, it is an undisputed rule of statutory
2
The Authority cites Wood v. City of Pittsburgh, 460 A.2d 390, 392 (Pa. Cmwlth. 1983), for
the proposition that because retroactive enforcement of a municipal ordinance in that case did not
run afoul of the constitutional prohibition of ex post facto laws, which addresses only penal
statutes, the updated regulation of the Authority may be enforced retroactively. However, the
appellant in Wood apparently did not effectively raise and preserve other grounds in opposition to
(Footnote continued on next page…)
3
construction that laws, other than those affecting procedural matters, must be
construed prospectively except where there is an express legislative intent that they
shall apply retrospectively.3 R & P Servs., Inc. v. Dep’t of Revenue, 541 A.2d 432,
434 (Pa. Cmwlth. 1988); see also Section 1926 of the Statutory Construction Act of
1972, 1 Pa.C.S. § 1926 (“[n]o statute shall [be] construed to be retroactive unless
clearly and manifestly so intended by the General Assembly”). It is equally true that
a regulation promulgated by an administrative agency shall not be construed to have
a retroactive effect unless it was clearly and manifestly intended to be so applied.
Hosp. Ass’n of Pa., Inc. v. Foster, 629 A.2d 1055, 1060 (Pa. Cmwlth. 1993).
Moreover, administrative agencies may adopt retroactive regulations only so long as
they do not destroy vested rights, impair contractual obligations, or violate the
principles of due process of law and ex post facto laws. R & P Servs., 541 A.2d at
434.
The power of a municipal authority to adopt regulations is a legislative
delegation by the General Assembly—the 2012 Regulations were adopted by the
retroactive enforcement of ordinances—as we noted in Wood, the appellant raised thirteen
questions in his statement of questions involved but waived the great majority of them by failing
to raise them before the trial court and/or failing to address them in his brief. Id. at 391 & n.4. At
all events, our jurisprudence contains other grounds besides the prohibition of ex post facto laws
upon which retroactive enforcement of regulations may be challenged.
3
The rules of statutory construction have been applied with equal force to other delegations
of legislative authority, including regulations of administrative agencies, see R & P Services, Inc.
v. Department of Revenue, 541 A.2d 432, 434 (Pa. Cmwlth. 1988), and municipal ordinances, see
Trojnacki v. Board of Supervisors of Solebury Township, 842 A.2d 503, 509 (Pa. Cmwlth. 2004).
4
Authority by resolution dated May 9, 2012 under authority of Section 5607(d)(17)
of the Municipality Authorities Act,4 which provides, in pertinent part, as follows:
Every authority may exercise all powers necessary or
convenient for the carrying out of the purposes set forth in
this section, including . . . the following rights and powers:
....
(17) To do all . . . things necessary or convenient for the
promotion of its business and the general welfare of the
authority to carry out the powers . . . including, but not
limited to, the adoption of reasonable rules and regulations
that apply to . . . sewer lines located on a property owned
or leased by a customer . . . .
53 Pa.C.S. § 5607(d)(17). As with regulations promulgated by administrative
agencies, we believe that it is appropriate for an authority’s rules to apply
retroactively only where they are clearly and manifestly intended to be so applied
and do not destroy vested rights, impair contractual obligations, or violate principles
of due process of law. Here, we do not find the requisite intent of retroactive
application clear and manifest in the 2012 Regulations.5
With respect to the Authority’s other argument, that the 1984
Regulations required Owner to have a separate sewer line for both buildings because
they each constituted “improved property” or “property,” we find that the trial court
4
As authority, the resolution mistakenly refers to Section 5607(b) of the Municipality
Authorities Act, 53 Pa.C.S. § 5607(b) (relating to limitations). (See R.R. at 189a.)
5
Owner cites Hempfield Township v. Hapchuk, 620 A.2d 668 (Pa. Cmwlth. 1993), which
applied the longstanding rule relating to “grandfathered” uses in the zoning context, more
commonly referred to as preexisting nonconforming uses. Since we find that the regulation in
question does not have retroactive application, we need not address the applicability of the doctrine
of preexisting nonconforming uses to the type of regulation involved here. Similarly, we will not
address the issues of vested rights, contractual obligations, or due process since Owner has not
raised such arguments.
5
correctly interpreted these terms to mean Owner’s lot or parcel, not the buildings
erected upon them. “Improved property” is defined in Section 1.6 of the 1984
Regulations as “[a]ny property upon which there is erected any structure . . .,”
obviously referring to “property” as the parcel of land upon which a structure can be
built. If, as the Authority suggests, the use of the term “property” in the regulation
referred to structures rather than land, Section 1.6 would make no sense. Finally,
Section 4.1 provides two exceptions to the requirement of one separate line for each
“property.” One of these states that where commercial or industrial premises have
multiple buildings in single ownership, the Authority reserves the right, on a case-
by-case basis, to decide whether each building must have a separate sewer
connection or whether all buildings may share a single connection. The second
states that double houses or townhouses with shared walls require a separate sewer
line for each unit.6 This suggests that the general rule did not include accessory
buildings in single ownership as separate “properties”—both as a matter of logical
inference and under the doctrine of expressio unius est exclusio alterius, the
inclusion of a specific matter in a statute implies the exclusion of other matters. See
Thompson v. Thompson, 223 A.3d 1272, 1277 (Pa. 2020).
In light of the foregoing, we affirm the order of the trial court.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
6
Moreover, we note that double houses and townhouses are usually separately owned, or at
least occupied by separate, different, and/or unrelated residents/households, making the need for
separate connections obvious, unlike the situation of an accessory building like a garage.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tri-Community Sewer Authority, :
Appellant :
:
v. : No. 1188 C.D. 2020
:
Florence E. Krebs :
ORDER
AND NOW, this 30th day of November, 2021, the order of the Court of
Common Pleas of Indiana County is AFFIRMED.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita