82 Pa. Super. 1 | Pa. Super. Ct. | 1923
Argued April 16, 1923. The borough, in February, 1916, filed a municipal claim for paving a street against the property of the defendant and, in August, 1920, issued a scire facias to enforce the collection of the claim. An affidavit of defense was filed challenging the validity of the lien upon the ground that no ordinance had been legally passed, adopted and transcribed in the ordinance book prior to the making of the improvement, nor had such ordinance been published in a newspaper and advertised by hand bills either before or after its passage, as by law required. When the case came to trial the plaintiff offered the lien in support of the action, but instead of relying on the prima facie evidence of the right to recover thus presented, as it might have done under the provisions of the sixth section of the Act of May 28, 1915, P.L. 599, it elected to present its whole case in evidence and offered the ordinance, evidence of the publication thereof prior to its final passage, as required by the Act of May 12, 1911, P.L. 288, and the record of the ordinance transcribed in the borough ordinance book, duly certified by the proper officers and approved by the burgess. The court below entered a nonsuit, upon the ground that the ordinance had not been published, after its passage, in the manner required by the third section of the Act of April 3, 1851, P.L. 320; which judgment it subsequently *3 refused to take off. The plaintiff assigns this ruling for error.
The opinion filed by the learned judge of the court below, in refusing to take off the judgment of nonsuit, clearly indicates that he gave to the question involved conscientious consideration. He arrived at the conclusion that the Act of May 8, 1919, P.L. 137, dealt entirely with defects in ordinances and assessments, and could not avail to render valid a claim when the ordinance had not been duly advertised after its passage. It is unfortunate that the decision of this court in the case of Huntingdon Boro. v. Dorris,
The judgment is reversed and the record remitted for further proceedings. *5