Sharp v. Conewago Township

CONCURRING AND DISSENTING OPINION BY

JUDGE FRIEDMAN.

I agree with the majority that the order of the Court of Common Pleas of York County (trial court) declaring Ordinance No. 99-251 (Ordinance 2) invalid had the effect of causing Ordinance No. 98-247 (Ordinance 1) to continue as though Ordinance 2 never had been enacted. However, I do not agree that section 2612 of The Second Class Township Code (Code)1 allows Conewago Township (Township) to use Equivalent Dwelling Units (EDUs) to assess the public water surcharge for the mobile home park owned by Richard E. Sharp and Miriam Sharp (the Sharps).

Section 2612 of the Code provides, in pertinent part, as follows:

*304The board of supervisors may provide for the payment of the cost of water lines or water systems in the township or in districts thereof by an assessment upon the properties accommodated or benefited by one of the following methods:
(2) By an equal assessment on all properties abutting on the mains in proportion to the total cost of construction. The amount of the charge on each property shall be determined by the board of supervisors.

53 P.S. § 67612 (emphasis added).

Section 1903(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1903(a), states that words and phrases shall be construed according to rules of grammar and according to their common and approved usage. Here, the word “properties” in section 2612 of the Code refers to “Land, and generally whatever is erected or growing upon or affixed to land.” Black’s Law Dictionary 1218 (6th ed.1990). Mobile homes are not erected upon land, do not grow upon land and are not affixed to land. See Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963) (stating that, if the wheels of a mobile home are removed and the mobile home is bolted to a concrete block foundation, the mobile home will be rendered immobile and will become a permanently affixed structure). Thus, the calculation of an equal assessment on “properties” abutting the mains does not involve the number of mobile homes on a property.

When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. Section 1921(b) of the Statutory Construction Act of 1972,1 Pa.C.S. § 1921(b). I submit that the statutory language in section 2612 of the Code is clear. The majority does not explain how the phrase “properties abutting on the mains” could mean “EDUs abutting on the mains.”

Even if such a construction were possible, I suspect that many of the mobile homes in the Sharps’ mobile home park do not abut the water main. Only the mobile homes closest to the street containing the water main would be “abutting on the mains.” See Black’s Law Dictionary 11 (6th ed.1990) (defining “abut” to mean “touch” or “border on”). Thus, if the Township were correct in assessing EDUs, the Township could assess only those mobile homes on the Sharps’ property that “abut” the water main.2 For whatever reason, the majority ignores this critical statutory language.

For the foregoing reasons, I would reverse.

. Act of May 1, 1933, P.L. 103, added by section 1 of the Act of November 9, 1995, P.L. 350, 53 P.S. § 67612.

. Considering that all of the mobile homes would benefit from the public water supply, I note that such a result is absurd, and, in ascertaining the intention of the legislature. we must presume that it does not intend a result that is absurd. Section 1922(1) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(1).