85 Pa. Super. 210 | Pa. Super. Ct. | 1924
Argued December 2, 1924. This appeal involves the validity of a municipal claim filed by the City of Allentown to the use of a contractor for paving and curbing part of 19th Street along land of appellee, after a trial in which the learned court below denied recovery on two grounds: holding (1) that the claim was a second, and therefore unauthorized, assessment under the ordinance providing for the improvement; and, (2) that the amount claimed was not calculated on the foot-front basis as required by the ordinance, but was obtained by multiplying the paved area in front of the abutting property (to the centre-line of the street) by the contract price per square yard.
Allentown is a city of the third class. In 1916 the city council passed an ordinance providing for the paving, and setting of curbs, on a number of designated streets, one of them, 19th Street from Liberty Street to Roth Avenue. The appellee, with other abutting owners, had signed and filed the required petition for the improvement. The ordinance provided for obtaining proposals to do the work; for paying for it by assessments on abutting property; for assignment by the city to the contractor of such assessments in full payment, with authority, in the name of the city, to file liens therefor and to collect the cost. The ordinance also provided that upon approval of the work by designated city authorities, and after and in accordance with notice to the abutting owner, that the assessment should be made by the city engineer by the foot-front method and by assigning to each lot the actual cost of the curbing in front thereof. The ordinance was followed by resolution of the city council awarding the contract to improve all the streets designated in the ordinance, to the Barber Asphalt *213 Paving Company, the use-plaintiff, in accordance with its proposal; a contract dated April 29, 1916, so providing was executed and delivered. Various unit prices applicable in different contingencies, were specified in the contract, but the prices applicable on 19th Street were $1.89 per square yard for paving and 50c per linear foot for the curb. Work was begun. The area to be paved in 19th Street (about 5,185 linear feet) was 22,278 sq. yds. On November 7, 1917, after about 5,676 sq. yds. had been paved, (about 1,344 linear feet of street), and when the curb had been put in for the entire distance from Liberty Street to Roth Avenue, the work was stopped. Two reasons were assigned by appellant for the cessation of work; as appellee concedes one of them, reference to that is sufficient; his brief states "the appellee admits that the paving was postponed by sewer construction on the part of the city......" The evidence justifies the conclusion that the city authorities thereupon treated what had been done up to that time as a completed improvement, for in January, 1918, the real estate abutting on the then paved portion was assessed and liened for the cost of the improvement in front thereof, pursuant to the contract; the filing of those liens was an assertion by the city that the paving of the 1,344 feet of street was a completed improvement, and each claim filed, we assume, contained the statutory averment that the city engineer had certified to the completion of the improvement. Those liens are not before us, though there is evidence that they were filed. From the time when work was stopped until 1920, no paving was done on the remainder of the section covered by the ordinance, but it was not repealed; the ordinance remained in force.
On June 21, 1919, a resolution was adopted, notifying the contractor to discontinue all work under the contract, and this was followed on May 24, 1920, by a resolution formally rescinding the contract. The rescission was accepted by the contractor. *214
Paving of the remainder of the unpaved section of 19th Street was not resumed until August, 1920, when, pursuant to a resolution of July 26, 1920, the municipal officers were directed to advertise for bids to do it. By resolution, approved August 9, 1920, the contract was awarded to the same contractor, — the use-plaintiff — pursuant to a new bid received in response to advertisement, and a contract dated August 12, 1920, was executed and delivered. The price per square yard of paving was $4.46. These resolutions of the city council, each duly approved by the mayor and certified by the city clerk, were produced by the city clerk, who testified they were, or were taken from, the "official records" of the city; they had the legislative effect of ordinances duly passed, approved and recorded: Third Class City Act of June 27, 1913, P.L. 568, art. VI, sec. 6, P.L. 592; Marshall v. Mayor, etc. of Allegheny,
The paving under the contract of August, 1920, was completed on November 10, 1920, and was approved and accepted. Thereupon, in compliance with the mandate of the ordinance for the collection of the cost by assessment on the foot-front basis, the city engineer and the proper authorities then assessed the cost of the paving under the contract of 1920 against the real estate on 19th Street abutting on the paving done under that contract. In doing so, however, appellee says (and the learned court below held) that they erroneously charged this abutting real estate with the cost per square yard of paving the area in front of the property (to the centre of the street), thereby charging a sum in excess of what would have been chargeable by dividing the cost of the paving done under the second contract on the foot-front basis. There is not sufficient evidence in the record to enable us to determine whether the amount charged is greater or not. After stating that the claim is filed for *215
paving the cartway of the street with asphalt, on the west side thereof, in front of the property of appellee, the claim as filed states: "The amount of assessment for which this claim is filed and the costs thereof, is as follows: To 212.63 sq. yds. of cartway paving with asphalt at $4.46 per sq. yd., $947.89; 240 sq. ft. gutter at 45c, $108; 152.13 linear feet curb at 50c, $76.06, [making a total of] $1,131.96." But as Judge PORTER said of an averment quite like that in a lien which came before this court in Phila. v. Ramsay,
The municipal legislation already described, indicates that what was done under this contract was considered a separate improvement. Indeed, that appears in the claim filed: "The work for which this claim was filed was done under and by virtue of a contract dated the 12th day of August, 1920, between the City of Allentown of the one part and The Barber Asphalt Paving Company of the other part. The kind and character of the work for which this claim is filed is the paving of the cartway of North Nineteenth Street with asphalt on the west side thereof, in front of the above described property. The date of completion of the improvement for which this claim is filed, as certified by the city engineer, was the 10th day of November, 1920." And the certificate of the engineer "supervising the improvement" is "conclusive of the time of completion thereof": sec. 10, Act of June 4, 1901, amended 1909, P.L. 194.
The reasons given by the learned president judge for refusing recovery are as follows: "The undisputed facts here found raise the question whether a municipal improvement under the ordinance in question can be assessed in any other way than upon what is known as the `foot-front plan,' involved in which is the question *217
whether an assessment can be made under one of these contracts without taking into account the other. The assessment in question was made for the cost of the improvement along the property of the defendant without respect to the total cost of the improvement, and the assessment was made under a second contract made by the City of Allentown for the unfinished portion of said improvement, upon a basis of $4.46 per square yard for the paving along defendant's properties, while under a prior contract for a part of the same improvement, property owners along which the work had been finished under said first contract, were assessed upon the basis of $1.89 per square yard. While a city of the third class has power to change contracts for municipal improvements without the consent of property owners located along the line of said improvement, when done in good faith: Marshall v. Allegheny City,
For reasons already indicated, we are constrained to differ from that conclusion, as applied to the evidence in the case. The parties acted in good faith. When the first contract was made, the city authorities thought that the work contemplated by the ordinance could be performed as specified in that contract. It turned out that they were mistaken; the construction of a sewer interfered. The municipal authorities then dealt with the situation so presented; they rescinded the contract and the contractor assented. The paving from Roth *218
Avenue to the point of interference by the sewer was then ended, and their conduct shows that the municipal authorities considered it a completed improvement. "Municipal authorities in the making of street improvements authorized by law to be made at the expense of the owners of lands to be benefited thereby, are to a certain extent the agents of such owners. Contracts lawfully made at the discretion of the authorities, are binding upon the landowners though injudiciously made; but the owners are entitled to have such contracts performed substantially in all things according to their terms, and the authorities have no power to dispense with such performance to the gain of the contractor and the loss of the property owners": Pepper v. Phila. to use of Horter,
The legal effect upon appellee's land of the conclusion by the city to treat the work done under the first contract as a single and completed improvement, was precisely what his legal situation would have been if the first contract had provided for the improvement of only 1,344 linear feet of the street; for the city was not bound originally to include the whole of a contemplated improvement in one contract: Art. V, sections 2, 10, of the Act of 1913, supra, P.L. 582, authorizes such city "to cause to be ...... paved ...... any public street ...... or part thereof": Wabash Ave.,
Appellee's brief, however, contends that "the amount due from each owner is for the proportion of the cost of the whole improvement which the frontage of each property bears to the entire frontage paved" (citing Scranton v. Koehler,
We agree with the learned court that the amount for which the assessment is made — the price per square yard multiplied by the paved area — is not the amount recoverable, unless it happen also to be the same amount as the entire cost of the paving under the second contract apportioned by the foot-front method, which fuller evidence on the subject will disclose. If the amount is wrongly stated in the claim filed, it is a proper subject for amendment. 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 agreement of the parties, or by leave of the court upon petition for that purpose, under oath or affirmation, setting forth the amendment desired, that the averments therein contained are true in fact, and that by mistake *221 they were omitted from or wrongfully stated in the particulars as to which the amendment is desired. Such amendments shall be of right, saving intervening rights, except that no amendment of claim shall be allowed, after the time for its filing has expired, which undertakes to substitute an entirely different property from that originally described in the claim; but the description of the property may be amended so as to be made more accurate, as in other cases of amendment."
No intervening rights prevent such amendment in this case. In New Castle v. Berger's Heirs,
The 17th assignment of error is sustained, the judgment is reversed and a new trial is awarded. *222