In re Pittsburgh

79 Pa. Super. 401 | Pa. Super. Ct. | 1922

Opinion by

Keller, J.,

The City of Pittsburgh, by ordinance No. 60, approved March 5, 1920, ordained the grading, regrading, paving, repaving and otherwise improving of Mount Oliver Street from South 18th Street to a point 50 feet north of Loyal Way and provided that the costs, damages and expenses of the same should “be assessed against and collected from properties specially benefited thereby, in accordance with the provisions of the Acts of Assembly of the Commonwealth of Pennsylvania relating thereto and regulating the same.”

It appears that some years previously Mount Oliver Street, by proper proceedings, had been graded, paved and curbed and the damages in connection therewith duly adjudicated. Later, the grade was reestablished and the street widened from thirty to fifty-four feet and the damages occasioned by such widening were duly adjudicated.

The ordinance of March 5, 1920, provided for the improvement of the highway as thus widened. It contemplated as parts of one improvement, the grading of the enlarged highway so as to conform to the new grade, including such regrading as was necessary for the portion which had been previously improved, and the paving of the street for the full width, including the repaving of so much thereof as had been paved in connection with the first improvement. It was necessary, or, in any event, advisable to handle it as a single improvement, but in the petition filed by the city for the appointment of viewers the foregoing facts were set forth at length and no attempt was made to assess the abutting properties for any part of the cost of the work which was embraced within the lines of the first improvement; but only for the cost of paving the additional width which had not1 been improved before: Phila. v. Ginhart, 48 Pa. Superior Ct. 648; Alcorn v. Phila., 112 Pa. 494.

In their report, the viewers found that the total cost of the entire improvement was $58,205.38, of which they assessed $10,351.17, against the abutting properties specially benefited by the improvement, $375 being assessed against appellant’s property. They also found that out of the cost1 of the entire improvement, $3,960 was expended for repaving. In this connection they reported: “This amount has been charged to the City of Pittsburgh and is not' assessed against the abutting property as benefits. Nor is any portion of the cost of paving between tracks of Pittsburgh Railway Company and one foot outside included within or charged against’ abutting property.” It thus appears that appellant’s property was assessed not otherwise and no more than if the present improvement1 had been restricted to the grading and paving of the unimproved portion of the street. It was not assessed for any costs to which it should not have been subjected. That being the case appellant1 has no just ground of complaint because it was necessary or was deemed advisable to do the entire work as a single improvement, under one contract: Wilmington Ave., 213 Pa. 238, 240.

In Phila. to use etc. v. Ehret, 153 Pa. 1, a strip in the middle of Allegheny Avenue had been macadamized under authority of a city ordinance. Afterwards an ordinance was passed for the paving of the entire street with vulcanite pavement. It was held that the abutting property could not be charged for any part of the cost of paving the strip which had been previously improved, but it was not even intimated that it was not legally liable for the cost of paving so much of the street as had not been improved before.

The ordinance contemplated and provided for a single improvement. It was, therefore, not invalid as containing more than one subject, though it included the repaving of a part of the street which had been previously paved: Phila. v. Ginhart, supra; Phila. v. Ehret, supra; West Liberty Ave., 70 Pa. Superior Ct. 348.

Nor was it invalid because it provided that the costs and expenses of the same should be assessed against and collected from the properties specially benefited thereby, “in accordance with the provisions of the Acts of Assembly of the Commonwealth of Pennsylvania relating thereto and regulating the same.” Even without this qualifying provision, the procedure for assessing and collecting benefits would necessarily have to be in accordance with and regulated by the laws of the Commonwealth. The City could not lawfully assess any part of the repaving on the abutting property: Hammett v. Phila., 65 Pa. 146; Phila. v. Ehret, supra. But this did not prevent a lawful assessment and collection thereunder of so much of said cost as could be legally assessed against such abutting property, that is, for so much as constituted a first1 improvement. This is all that was done in the instant case. It matters not whether the improvement was called a paving, as in Phila. v. Ehret, supra, or a repaving, as in Phila. v. Yewdall, 190 Pa. 412, provided the abutting property was not assessed with anything that did not form part of an original improvement.

The order of the court is affirmed at the costs of the appellant.