City of Philadelphia v. Beatty

9 Pa. Super. 255 | Pa. Super. Ct. | 1899

Opinion by

Oblady, J.,

A municipal lien of 1458.94 was filed by the city of Philadelphia to the use of the Vulcanite Paving Company, contractor, against the defendant for work done and materials furnished in paving the cartway on Montgomery street in front of the defendant’s premises. On the trial of the scire facias it was agreed that the paving under tbe contract, in the square in which the defendant’s property is located, was finished more than six months before the filing of the lien, but that the entire work provided for by the contract was not finished until a date within six months. The court directed the jury to return a verdict for the amount claimed, and reserved the question as to whether or not, under the facts, the lien was saved, and subsequently entered judgment in favor of the defendant non obstante veredicto.

It is admitted that the lien in this case was regular in form, filed pursuant to statutory authority; that the amount claimed was correct, and that the work done was of a satisfactory character. The sole defense is that the lien was not filed in time. It appears that the city of Philadelphia, by an ordinance of its councils, entered into a contract with the Vulcanite Paving Company to pave Montgomery street from Thirty-third street to Sedgley avenue with street asphaltum with a bituminous base foundation, and that the defendant’s property is situated on the northwest corner of Montgomery street and Thirty-first street. The work done under this contract, in front of the defendant’s property, was completed in November or December of 1894 and this lien was filed on August 9,1895, though the work on the whole contract was not completed until March 22, 1895.

By the ninth section of the Act of April 16, 1840, P. L. 410, there is no limitation as to the time when the lien shall be filed, but by section 2 of the Act of April 16,1845, P. L. 488, it is provided that “no debt, charge or assessment, for work hereafter done or materials furnished by or under the authority of ... . or any municipal corporation, shall be a lien on real estate for more than six months from the time of doing such work, unless a claim for the same shall be filed in the office of the prothonotary of the proper court, within that time nor shall the same continue a lien longer than five years from the time of filing the claim, unless revived by scire facias in the manner provided by law in the case of mechanics’ claims. ” The proceeding is dependent entirely upon statutory authority, and, to secure the benefits of the special lien, the claimant must conform to the requirements of the statute. To hold that the lien need not be filed rmtil within six months after the entire contract is completed would practically annul the provisions of the act of 1845, and make the time of filing the lien so indefinite as to require, in addition to an examination of the property, the title and incumbrances thereon, and a search of contracts for municipal improvements, which might be unfinished for years after the work done in front of a particular property had been completed. The property owner is asked to pay, in the lien filed in this case, “ for work done and materials furnished within six months last past in paving the cartway on Montgomery street in front of said lot of ground and premises.” He is not a party to the contract with the city, he is not consulted as to the manner of performance, the cost, nor the length of the street to which the paving is to be applied. It may be confined to the square or block in which his property is located, or it may extend a mile beyond it. He may or may not agree to the improvement and his property is liable without his assent, only when the lien is filed with statutory exactness. To be indefinite and uncertain until a contractor had fully completed Ms contract with the city might in many cases seriously disturb values. Councils might decide to enlarge the time for performance of the contract, or abandon it entirely after a particular point was passed; tbe contractor might fail or die, and, on appellant’s contention tbe ownerwould be subjected to the risks and inconveniences flowing from the above or similiar.exigencies. The contract to pave between two certain points, however distant, is an entirety between the city and the contractor, but when the city seeks to proceed against the property for work done and materials, that frontage becomes the unit for tbe computation of time between the city and the property owner. This imposes no hardship on tbe cfiy, as it has full control of the work and can as readily determine the date when the work is completed, as the cost of doing it. The City of Pittsburg v. Knowlson, 92 Pa. 116 does not conflict with the construction given this statute. The question presented for our consideration was not before the Supreme Court in that case, and was not decided. In the act of assembly under which that case arose it is provided, section 19, “ The assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the improvements for which they were made and shall, if filed within six months after tbe completion of said improvements, continue liens,” etc., which is very different from the act of April 16, 1845. The analogous cases of mechanics’ liens have received a construction similar to the one herein given : Britton v. Philadelphia, 32 Pa. 387; Shannon v. Broadbent, 162 Pa. 194. The true intent and meaning of section 2 of 'the act of April 16,1845, is that the lien must be filed within six months from the time the work is done in front of the premises intended fo be lipned and the judgment is affirmed.