City of New Castle v. Berger's Heirs

• Decision Date: 14 July 1920
• Docket Number: 64-1920
• Citation: 74 Pa.Super. 548
• Parties: City of New Castle, Appellant, v. Berger's Heirs
• Court: Pennsylvania Superior Court

74 Pa.Super. 548

City of New Castle, Appellant, v. Berger's Heirs

No. 64-1920

Superior Court of Pennsylvania

July 14, 1920

Argued April 20, 1920

Appeal by City of New Castle, from order and decree of C.P. Lawrence County-1912, No. 42, striking off a municipal lien in the case of City of New Castle v. Geo. B. Berger's Heirs.

Scire facias sur municipal lien. Before Emery, P. J.

Rule to strike off municipal lien.

The facts are stated in the opinion of the Superior Court.

The court made absolute the rule. Plaintiff appealed.

Error assigned was the order of the court.

James A. Gardner, City Solicitor, for appellant. -- A municipal lien, being a proceeding in rem, is valid when filed against George B. Berger's heirs: Northern Liberties v Coates's Heirs, 15 Pa. 245; Wistar v Phila., 86 Pa. 215; Beltzhoover Borough v Beltzhoover's Heirs, 173 Pa. 213; Reese v Haymaker, 164 Pa. 575; Phila. v. Peters, 57 Pa.Super. 275, 279.

A municipal lien can be amended in material matters where there are no intervening rights, and the property continues to be owned by the same person: Allentown v. Hoover, 93 Pa. 232; McKeesport v. Busch, 166 Pa. 46; Phila. v. Church, 16 Pa.Super. 65; Mt. Pleasant v. B. & O. R. R. Co., 138 Pa. 365; Phila. v. Kelly, 24 Dist. R. 143.

Martin & Martin, for appellees.

Before Porter, Henderson, Head, Trexler, Keller and Linn, JJ.

OPINION

TREXLER, J.

The first objection to the municipal lien in question which the lower court struck from the record, is, that the name of the owner is not correctly given. It is filed against " George B. Berger's Heirs."

In Beltzhoover Borough v. Beltzhoover Heirs, 173 Pa. 213, a municipal lien filed against the " Heirs of Jacob Beltzhoover" was sustained. The authorities cited were Wistar v. Phila., 86 Pa. 215; Northern Liberties v. Coates's Heirs, 15 Pa. 245. Freeport Borough v. Robert Miller Estate, 34 Pa.Super. 395, cited by the lower court is not an authority to the contrary. Being an affirmance by a divided court, it furnishes no precedent: Com. v. Reid, 265 Pa. 328.

The next objection is that the claim described the assessment as having been made for " the grading" of Carlisle street, when in fact it was for " the opening and grading." The City of New Castle has the undoubted right to levy an assessment for the grading of a street. The lien being regular on its face, we do not see how the omission of the word " opening" can afford a valid reason for the striking off of the lien. However the real controversy before us is the refusal of the court to allow the lien to be amended so as to make it include the word " opening" in addition to " grading." The cases cited by appellee in regard to mechanics' liens do not aid us in the solution of the question. Whether the lien can be amended in this respect depends upon the scope of section 35 of the Act of June 4, 1901, P. L. 364, which 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 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 the 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." All the details of the apportionment of the cost of the improvement...