76 Pa. Super. 473 | Pa. Super. Ct. | 1921
Lead Opinion
Opinion bt
In numerous assignments appellant presents the following matters for review: invalidity of the assessment because (1) made by an illegal application of the foot-fiont method; (2) three lots were joined in one assessment; (3) the borough modified the contract; (4) it was not substantially performed; (5) he also asserts that pursuant to section 10 of the Act of June 4, 1901, P. L. 367; Act of April 2, 1909, P. L. 194, the lien expired before verdict or judgment on the claim; (6) that amendment of the claim should not have been permitted.
The record shows a trial on the merits of a scire facias sur municipal claim to recover a special assessment by the foot-front method on defendant’s real estate for its share of the cost of a sewer laid in front of it. This trial was conducted before a referee by agreement of the parties approved by the court pursuant to the local reference Act of April 6, 1869, P. E. 725, supplemented by the Act of June 22, 1871, P. L. 1363. Appellant has not
In 1909 an ordinance was approved providing for the construction of a system of public sewers in section “S” of the second sewer district of the borough, specifying in considerable detail what should be done and the streets in which the sewer should be laid and appropriating for payment the sum of “$33,759.40, or so much thereof as may be necessary, which sum shall be derived from assessments on the properties fronting, adjoining and abutting on and along the line of the said sewers according to the foot-front rule; provided, that on all corner lots more than eighty feet in depth, where the sewer passes on both sides, or where a sewer has previously been constructed on the short side or will hereafter be constructed on the short side, an allowance of two-thirds of the length of the long side shall be made; and on all lots where the sewers pass at both ends, an allowance of one-half of one end shall be made, and on all lots less than seventy feet in depth, where the sewer passes along the long side only, an allowance of one-half of the length of the lot shall be made, and on all lots where the sewer passes at both ends and on one side, an allowance of the side and one-half of the shortest end shall be made, and which allowances are deemed just and equitable by the council.”
Pursuant thereto a contract for the work was duly executed but before it was completed a supplemental agreement was made providing that the diameter of the sewer be reduced in some streets and that a change in level be made for a large part of its length, thereby reducing the amount of excavation required as well as the cost of the work. Performance of this contract was the subject of litigation reported as Conrad v. O’Boyle et al., 61 Pa. Superior Ct. 467. The sewer was completed in
1. In the municipal claim filed it is stated that “. the assessment was made in and by said ordinance and was according to the foot-front rule with certain allowances for corner, triangular and other irregularly shaped lots and the amount of foot frontage with which the said lot was assessed is 348 feet.” Appellant complains that the referee and the court declined to hold the assessment invalid for alleged misapplication of the foot-front rule. Assessments by that method are authorized by the statute governing the borough’s action. Section 2 of the Act of May 15, 1889, P. L. 220, provides: “Whenever any borough shall determine to construct any public sewer, it shall have power, by ordinance or ordinances duly passed, to assess the cost thereof as a sewage tax upon the property adjoining or adjacent to the same, either by the foot-front or in such other manner and in such proportions and amounts as to the burgess and town council may seem just and equitable.” It has frequently
We cannot say that the part of the ordinance providing for allowances on corner lots, etc., quoted renders the ordinance invalid. The presumption is in favor of validity and it had been held that article I, section 9, of the Constitution providing that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax” does not apply to assessments for the cost of such local improvements ; the decisions are collected in Judge Simonton’s opinion in Harrisburg v. McPherran, 14 Pa. Superior Ct. 473 at 482, etc. In their brief counsel for appellant say, “It may be admitted that as to corner lots where the sewers extend along both sides, an assessment on both is liable to be excessive; and so also where there are sewers along both ends. And the provisions of the ordinance
2. Joining three lots in one assessment is not necessarily harmful. In tbis case it saved defendant costs incident to having three claims filed against bis property instead of one. While tbe ordinance describes tbe land apparently as three separate lots, each with a frontage of 116 feet with an assessment of $266.80 against each lot, tbe claim filed states tbe amount as $800.40, and describes tbe property as “lot No. 1A, 2A, 3A.and is situate.being 348 feet in width in front.” No question was made of tbis in the affidavit of defense; there is no suggestion that tbe lot is not in fact a single lot as described in tbe claim: Borough v. McCoacb, 52 Pa. Superior Ct. 527, is directly against appellant. ,
3. Tbe modification of tbe contract has not been shown to be wrong. After tbe work bad begun tbe borough
4. The contract was substantially performed. The referee found “The contract was performed in accordance with its terms and the terms of the ordinance as modified by the borough council and by the borough engineer, whose modifications were approved by the borough council.” In affirming numerous requests for findings of fact stating the same result in various ways, he also found that the sewer had been substantially constructed in accordance with the contract and its supplement, and had been accepted and used by the borough and by the appellant for years. Without any evidence to show he was wrong, we conclude he was right. The obligation to pay for accepted substantial performance is settled: Pepper v. Phila., 114 Pa. 96; Filbert v. Phila. 181 Pa. 530; Pressy v. McCornack, 235 Pa. 443, 447.
5. We cannot agree with appellant’s contention that there was failure to comply with the Act of June 4, 1901, section 10, P. L. 367 (amended 1909, P. L. 194) ; and that in consequence the lien was lost. Section 10 provides: “Upon each tax or municipal claim a writ of scire facias, in the form hereinafter set forth, must issue within five years from its filing, and verdict must be recovered or judgment entered on the scire facias within five years after it is issued. Final judgment must be entered on the verdict within five years after its recov
6. The amendment of the claim was proper. The petition to amend set forth “by mistake the details of the kind and character of said work were not minutely set forth” and an amendment was duly allowed adding to the claim as originally filed certain details of the kind and character of the work done. The objections were two-fold: (a) that.there was no lien to amend; (b) that more than six months had elapsed since the work was done in front of claimant’s property. As we have already shown the claim was not invalid. The second objection is also without merit. Section 35 of the Act of June 4, 1901, P. L. 364, provides: “Any claim, petition, answer, replication, scire facias, affidavit of defense, or other paper filed of record, may be amended from time to time.by leave of the court upon pe
Dissenting Opinion
Dissenting Opinion by
The Borough of Dunmore, in pursuance of an ordinance duly adopted, undertook the construction of “a system of public sewers, with the necessary branches, extensions, house connections, etc.,., to be constructed and laid along and in certain streets in ‘Section S’ of the second sewer district.in accordance with the plans,.the said sewers to be constructed and laid through and along the said routes hereinafter described.” The ordinance then designated the streets in which the sewers and branches were to be laid. It provided for the construction of sewers in at least ten different streets; some of the sewers being twenty-four inches in diameter, others fifteen inches and the branch sewers in some of the streets being of smaller dimensions. This ,was not the construction of one sewer through a number of streets bearing different names, but it was the construction of two main sewers, connecting with the trunk sewer in -Drinker Street, each of said main sewers having lateral sewers and branches therewith connected. The ordinance provided that: “For the purpose of paying for the cost and expenses of the construction of the said sewers, branches, house connections, etc., .there is hereby appropriated the sum of $33,-759.40, or so much thereof as may be necessary, which sum shall be derived from assessment on the properties fronting, adjoining, and abutting on and along the line of the said sewers, according to the foot-front rule; provided, that on all corner lots more than
Municipalities cannot subject property to a local tax except by the lawful exercise of their powers. If the law prescribes the manner in which the corporation or its officers must act they must follow the requirements of the law under which they propose to act: Fell v. Phila., 81 Pa. 58. If it be assumed that the cost of the construction of this entire system of sewers, with its mains and branches, could lawfully be imposed as a tax by an equal assessment according to the foot-front rule upon the properties which had a frontage upon any one of the sewers or branches, then the rule should have been consistently applied. It has been held in many
The borough took the aggregate cost of all the sewers, main and branch, in the system, and divided this aggregate sum by the aggregate frontage of the abutting lots, computing the frontage in the irregular manner above indicated, to establish a rate of cost and then assessed this rate so ascertained, against each lot in accordance with its frontage. By this method the properties in front of which the smaller sewers are laid, including the property of this appellant, are assessed with more than the cost of those sewers. They thus have to pay the cost of other sewers, through which their properties are not drained and from which they derive no benefit. The property of the appellant ought not to be assessed for the cost of any part of the sewer from which it derives no benefit. The measure of assessment is the amount of benefits, and it is limited to the cost of the improvement. If the cost is only one dollar per foot, that is all that can be assessed on the property, though the benefit may be equal to two dollars per foot. Some of the sewers in this system may have involved very expensive construction, through solid rock or other unusual obstacles. The argument in favor of assessing the cost of the entire system upon all the properties abutting upon any sewer in the system, according to the foot-front rule, is open to the serious objection that it presents no principle upon which the limitation of such charges can be fixed. With regard to such an attempt to assess the aggregate cost of all the main and local sewers in a district, according to the foot-front rule, upon the properties abutting on the different sewers it was said in Whitman v. Reading City, 169 Pa. 391: “The main sewer into which any particular branch shall empty is not located or its size determined by the needs or convenience of that branch alone or even chiefly, but by the requirements of the whole district. This includes or may include many branches, of different situations and very various cost.