City of Philadelphia, to Use of Union Paving Co. v. O'Brien

• Citation: 176 Pa.Super. 235,107 A.2d 587
• Parties: The CITY OF PHILADELPHIA, TO USE OF UNION PAVING COMPANY, to Use of Lewis Bokser, to Use of Central-Penn National Bank, v. John O'BRIEN and Cecilia O'Brien.
• Decision Date: 30 August 1954
• Court: Pennsylvania Superior Court

Page 587

107 A.2d 587

176 Pa.Super. 235

The CITY OF PHILADELPHIA, TO USE OF UNION PAVING COMPANY, to Use of Lewis Bokser, to Use of Central-Penn National Bank, v. John O'BRIEN and Cecilia O'Brien.

Superior Court of Pennsylvania.

Aug. 30, 1954.

The Opinion of Judge Crumlish follows:

This matter came before us on plaintiff's Rule for Judgment for want of a sufficient Affidavit of Defense. We dismissed the rule because it was not clear that plaintiff was entitled to summary judgment.

The law is that summary judgment on the pleadings should be entered against the defendant only when the answer clearly presents no meritorious defense. Cummings v. Middlebury Township School District, 1951, 79 Pa.Dist. & Co. R. 20. Summary judgment may be entered only when the case is free from doubt. Vrabel v. Scholler, 1952, 369 Pa. 235, 85 A.2d 858. See also: Tide Water Associated Oil Co. v. Kay, 1951, 168 Pa.Super. 263, 77 A.2d 754; In Lepore v. Italian Victory, B. & L. Association, 1952, 171 Pa.Super. 35, at page 38, 90 A.2d 327, at page 329, the rule is stated thus: 'To sustain a judgment on the pleadings they must present a case clear and free from doubt and every doubt must be resolved against the entry of such judgment.' (Citing cases.)

In addition, such a motion is to be treated as a demurrer, and all material averments of fact by the opposing party must be accepted as true. London v. Kingsley, 1951, 368 Pa. 109, 81 A.2d 870. After a consideration of the facts and law involved in this case the reason for the court's dismissal of the rule should be apparent.

On September 25, 1946, the City of Philadelphia passed an ordinance authorizing the paving of 63rd Street from Woodbine Avenue to City Avenue, providing further that the contractor was to collect part of the cost from the abutting property owners.

On April 27, 1953, after the paving was completed, a Sci Fa sur Municipal Lien was issued by the city against defendants to the use of Union Paving Co., to use of Lewis Bokser, to use of Central-Penn National Bank, claiming $238.92 for the paving of the cartway of premises 2047 North 63rd Street.

Defendants then filed an affidavit of defense, which we will consider below. At this point plaintiff filed his present rule for summary judgment, which we dismissed.

In the first count of their affidavit of defense, defendants set forth facts to substantiate the defense that the paving was actually a re-paving, and not an original paving, and therefore there was no liability for the assessment.

In their second count, defendants aver certain facts to show that the City has adopted and acquiesced in the previous paving on 63rd Street as an original paving.

Finally, in their third count defendants aver facts to the effect that the assessment under the circumstances of the present case was unconstitutional.

Let us consider whether defendant has set forth an answer sufficient to permit us to let the case go to trial.

First of all, the law is well settled that once there is an original paving, the city cannot assess and charge for a subsequent re-paving. Hammett v. City of Philadelphia, 1870, 65 Pa. 146; Harrisburg v. Segelbaum, 1892, 151 Pa. 172, 24 A. 1070, 20 L.R.A. 834; City of Philadelphia, to Use of Eastern Asphalt Co. v. Pachelli, 1950, 168 Pa.Super. 54, 76 A.2d 436.

The Superior Court has recently set forth in two opinions some guiding principles on the subject. See: Mt. Lebanon Township v. Scheck, 1946, 159 Pa.Super. 189, 48 A.2d 53 and City of Philadelphia, to Use of Eastern Asphalt Co. v. Pachelli, supra.

In both of the cases last cited, summary judgment was entered by the trial court, and, on appeal, both decisions were affirmed. In the Pachelli case, the principal contention of the defendant was that the work done was not an original paving, but rather a re-paving, for which he could not be assessed. There, as here, the question was whether the affidavit of defense set out this defense with sufficient particularity to entitle the defendant to have a jury pass on it. The court there decided against the defendant, since he was unable to aver with particularity the circumstances of the original paving and the persons who actually paid for it. The statements contained in the affidavit were too general.

In Mt. Lebanon Township v. Scheck, supra, the street was widened, and the city assessed the abutting property owners only for the extra or widened portion of the road, but not for the re-paving of the middle of the cartway. On this set of facts it was obvious the defendant had no real defense. He merely averred generally that the paving was a re-paving, and that consequently he was not liable. Summary judgment was properly entered in that case, since it was manifest from the record that there existed no meritorious defense to the claim.

The instant case, however, is distinguishable from the above cases in several aspects. The case of Mt. Lebanon Township v. Scheck, supra, of course, is clearly a different case on the facts alone. There the city assessed only for that new portion of the road actually paved for the first time. Defendant could have no defense to that and summary judgment was properly entered. In the case of City of Philadelphia, to Use of Eastern Asphalt Co. v. Pachelli, supra, where defendant's affidavit failed to state with particularity the circumstances of the original paving, we again have a situation different from the case at hand. In the instant case, defendants have stated with great care the exact circumstances, to the best of their knowledge, regarding the paving as it originally took place when the houses abutting 63rd Street were constructed. Defendants set forth the names and addresses of the owners of the abutting premises; the dates when the deeds of dedication to the roadbed were accepted by the board of surveyors; the date when the paving was first laid; the firm that laid it; the exact measurements of the pavement, including its exact construction, and the composition of the foundation and the various layers of road material laid thereon; and the fact that the premises now owned by defendants bore a proportionate share of the cost of the original paving laid down by the contractor mentioned above.

The above allegations would seem to be specific and complete enough to carry the case to a jury. There is, of course, the fact that defendants were unable to allege any specific ordinances of the city assessing a certain amount against each abutting land-owner at the time the pavement was put in, but under the doctrine of Hammett v. City of Philadelphia, supra, an early case setting forth in excellent manner the reasons behind the law in this area, we think this is not fatal to defendant's case. Justice Sharswood, in the Hammett case, set forth as the reason for permitting local assessments, the fact that the original paving of a street brings the property bounding upon it into a market as building lots. Before that, it is a road, not a street. It is therefore a local improvement, with benefits almost exclusively peculiar to the adjoining properties. Repairing a street, on the other hand, is as much a part of the ordinary duties of the municipality as lighting or cleaning, and it would be unjust and inequitable to provide for such general expenses by local assessments.

The theory, in other words, is not that assessments must be levied at some time to pay for the original paving, or that there can never be a re-paving unless assessments are first levied. The real reason behind the rule is that a local assessment should be levied to pay only for local improvements where special benefits on the properties assessed are benefited. It is for this reason that the court has stated, in Harrisburg v. Segelbaum, supra, 151 Pa. at page 181, 24 A. at page 1074: 'At first blush, there is apparent plausibility in the position that the expense of one paving, at least, should, at some time or other, be charged against and paid by owners of the abutting property; but, in view of the principle underlying Hammett v. [City of] Philadelphia, and the whole line of cases, including City of Williamsport v. Beck, 128 Pa. 147, 18 A. 329, we think the position is more plausible than sound. That underlying principle is an exception to the general and almost universal rule that the cost of making and maintaining public improvements must be borne by the public. In the case of paving public streets, the circumstances which create the exception and justify its application exist only when the street is first improved by paving or macadamizing it.'

Any special benefit which is the basis of a local assessment must, in other words, be made at the time the paving is laid, and not at the time of a subsequent re-paving.

Under the facts of this case it is difficult to see how defendant benefited from the re-paving of 63rd Street. The law, is, however, that if the present paving was an original...