City of Philadelphia to Use of Polselli v. Phillips
| Decision Date | 21 July 1955 |
| Citation | 116 A.2d 243,179 Pa.Super. 87 |
| Parties | CITY OF PHILADELPHIA to use of POLSELLI and Angelucci to use of Lewis Bokser to use of Central-Penn National Bank v. Julius PHILLIPS and Rose Phillips. Appeal of CENTRAL-PENN NATIONAL BANK. |
| Court | Pennsylvania Superior Court |
Proceeding upon municipal claim. The Court of Common Pleas No. 2, Philadelphia County, No. 13891, M.L.D., June Term 1953, Vincent A. Carroll, J., refused to enter judgment for want of a sufficient affidavit of defense and an appeal was taken. The Superior Court, No. 151, October Term, 1954 Woodside, J., held that under proper construction of a 1951 ordinance of City of Philadelphia providing that abutting owners should not be charged for more than 18 feet of paving width, property owners who had, prior to 1951, been assessed for 16 1/2 feet of paving width could not be assessed for more than 1 1/2 feet in connection with additional paving done after 1951.
Affirmed.
Lester S. Hecht, Philadelphia, for appellant.
Karl I. Schofield, Asst. City Sol., Jerome I. Shestack, First Asst. City Sol., Abraham L. Freedman, City Sol., Philadelphia, for City of Philadelphia.
Edward J. Hardiman, Wesley H. Caldwell, Roper & Caldwell, Philadelphia, for appellees.
Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
This is an appeal from an order of the court of common pleas of Philadelphia County refusing to enter judgment for want of a sufficient affidavit of defense to a municipal claim. It involves the interpretation of a city ordinance.
The defendants own property abutting Upsal Street, Philadelphia. The street has a width of 52 feet. A middle strip of 33 feet of this street was paved by the city in 1943, and the cost of one-half, or 16 1/2 feet, of this paving was assessed against the predecessors in title to the premises now owned by the defendants.
Once a city has assessed abutting owners for paving a street, no future assessment for repaving or repairing that same area can be made. Hammett v. City of Philadelphia, 1870, 65 Pa. 146; City of Philadelphia v. School, 1917, 68 Pa.Super. 404, 413.The city may, however, assess for paving the shoulders when only the middle of the street was previously assessed, or vice versa. City of Philadelphia v. Evans, 1891, 139 Pa. 483, 21 A. 200, In re West Liberty Avenue, 1918, 70 Pa.Super. 348.
Thus the city could never again provide by ordinance or otherwise for the assessment of the abutting property owners on Upsal Street for the 33 feet paved in 1943. But it could thereafter, if it so desired, provide by ordinance for the assessment of the abutting owners for paving the previously unpaved portion.
Prior to 1951 the city assessed all the cost of original paving against the abutting property owners regardless of the width of the paving. That year the city adopted an ordinance, the pertinent part of which is as follows:
‘ Whenever by authority of Council any street or highway or portion thereof is paved, the cost thereof, exclusive of street intersections, shall be proportionately assessed against the owners of the properties abutting on said streets or highways according to their respective fronts except properties exempt by law, from such assessments: Provided that said abutting owners shall not be charged more than the contract price nor for more than an eighteen feet width of paving, and in no cases more than eight (8) dollars in the aggregate per linear foot of assessable property frontage for any type or class of paving, including base and intermediate and surface courses; that no deductions from the assessments so made shall be allowed; that the assessment bills shall be prepared and collected in accordance with existing laws; that any amount in excess of the assessment herein provided shall be paid by the City .’ (Italics supplied for emphasis.)
In 1953 the city, proceeding under the above ordinance, paved the remaining nineteen feet of Upsal Street abutting the defendants' property, and is now attempting to assess the cost of paving 9 1/2 feet against the abutting property owners on each side of the street.
A municipal claim was filed against the defendants in which the present appellant is a ‘ use-plaintiff’ . The defendants filed an affidavit of defense. They contend that an assessment for paving 16 1/2 feet of the street having already been made against their property, the city is limited by the 1951 ordinance to an assessment for the cost of only 1 1/2 feet, and that under the provisions of that ordinance the city has agreed to pay the balance of the paving costs.
On motion of the use-plaintiff for judgment for want of a sufficient affidavit of defense the lower court decided for the defendants. The use-plaintiff appealed.
The appellant and the city, which has filed a brief under rule 46 of our Court, contend that the 33 feet having been paved prior to the 1951 ordinance, the payment made for its paving cannot be considered in determining the 18 foot limitation, and that the city can assess all of the costs of paving 9 1/2 feet against the defendants.
It is argued that to interpret the ordinance otherwise would be giving it a retroactive effect, which is contrary to the rules of statutory construction. We shall consider this question later.
The rules of construction applicable to statutes are to be applied with equal force and effect when construing an ordinance. Cloverleaf Trailer Sales Co. v. Pleasant Hill Borough, 1950, 366 Pa. 116, 76 A.2d 872.
Rules of statutory construction are but aids in determining the intent of the legislative body, in this instance the city council.
The intention of council may be ascertained by considering the object to be attained and the circumstances under which the ordinance was enacted, the former ordinance on the same subject, and the consequences of a particular interpretation. See Statutory Construction Act of May 28, 1937, P.L. 1019, Sec. 51, 46 P.S. § 551, and cases there cited.
Applying these rules to the ordinance before us it becomes clear what the council intended. Council recognized that the procedure being followed was inequitable in that abutting property owners of certain streets were required to pay for construction which was not primarily for their use or benefit, but for the use and benefit of the city generally, and that in justice and equity that part of the street primarily for general use of the citizens should be paid for by all the taxpayers.
What else could have been the purpose of the ordinance? It certainly could not be merely to limit the amount to be paid by abutting owners at any one time. No person would seriously contend that the city could collect for the paving of a street 108 feet wide, for example, by the simple device of paving and assessing only 36 feet at a time.
What is the equitable share of the cost of street paving to be charged to an abutting property owner? That is the question which the ordinance answered. Why 36 feet was chosen as the answer instead of 30 or 40 feet or some other width is not important. That was a discretionary matter for council. It is to be noted, however, that 36 feet would permit parking on both sides of the street and leave sufficient space for free passage of two-way traffic. Any substantial increase in that width would permit three or four traffic lanes instead of two. It is fair to assume that the council reasoned soundly that paving to provide for more than two lanes of traffic is done not so much for abutting owners as for the city at large. Although this is in a sense speculation, the intent of council seems so self-evident from the mere adoption of such an ordinance that it rises above speculation in the usual meaning of the word.
As to the intent of the proponents of the ordinance we need not speculate. The ordinance was proposed in a letter by the Director of Public Works to the Mayor who in turn recommended it to Council forwarding to that body the Director's letter.[1]We quote from that letter here to substantiate what we have already concluded was the intent of council.
The letter suggests the need of the ordinance ‘ to correct some inequities in the present law.’ Pointing out that ‘ present procedure in assessing new paving calls for the property owner to pay the entire cost of paving in front of his property and extending to the center...
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