Philadelphia v. Katz
| Citation | 58 Pa. D. & C. 69 |
| Decision Date | 07 October 1946 |
| Docket Number | 4371 |
| Parties | Philadelphia, to use, v. Katz et al |
| Court | Commonwealth Court of Pennsylvania |
June term, 1946.
F F. Truscott, city solicitor, and E. L. Rosen assistant city solicitor, for plaintiff.
M H. Egnal, L. S. Hecht, and M. C. Selig, for use plaintiffs.
I Packel, for defendants.
Motion to strike off municipal lien.
Four property owners (in this and three accompanying cases), filed a motion and rule to strike off a municipal lien. All four are identical in reason and purpose; a disposition of one is a disposition of the four. Each lien is for a proportionate share of the expense (and penalty) of repaving and regarding private driveways backing on the four properties (and many other properties) and was filed by the contractor (as use plaintiff), who furnished the material and did the work, under the Act of July 11, 1923, P. L. 1032, as amended by the Acts of June 22, 1931, P. L. 841, [1] and May 17, 1939, P. L. 151; [2] 53 PS § 3681 and supplement, et seq.
The procedure is undebated, the record being free of unagreed circumstance: Borough of Berwick v. Smethers et ux., 105 Pa.Super 40 (1932). Removal of the liens is sought through an attempt to have the court strike the act from the statute books.
It is urged that the act is unconstitutional; that it infringes on the principles of our Federal (article 14) and State (article 1, sec. 9) Constitutions, in a word, that the act is not due process. Of course, without a compelling consideration to stifle it, the act ought to stand: Statutory Construction Act of May 28, 1937, P. L. 1019, art. IV, sec. 52(3), 46 PS § 522(3); Hadley's Case, 336 Pa. 100, 104 (1939); Brereton Estate, 355 Pa. 45.
It is quite to the point to give the act's provisions. In sum: (1) Improper grading or defective paving of a private driveway in Philadelphia (cities of the first class) is in effect made a nuisance; (2) the board of health declares it so, and certifies it as a nuisance to the department of public works; (3) the registered owner or user of the driveway must abate it upon 10 days' notice by the department of public works to the registered owner; (4) upon failure or neglect of the owner or user to do so, the department of public works does the necessary work of abatement in accordance with the surveyor's lines, by itself, or if without funds for the purpose, through a contractor; (5) the cost, or a proportionate part (proportionate to the width of the abutting properties, or in proportions deemed just and proper by the department of public works), is a lien, and is collectible by law, as in similar cases.
Petitioners claim unconstitutionality because of (1) the arbitrary power in the board of health to declare the nuisance, and in the department of public works to repave and regrade at the owner's expense; (2) the arbitrary power in the department of public works to apportion charges; and (3) because 10 days for the owner or user to do the work is unreasonably short. Petitioners limit their complaint to driveways that are private. [3]
I can suppose by this day the sureness of the existence of nuisance in the law. Tracings of it go back to Glanvill and Bracton, and the " Assize of Nuisance" mentioned in Pollock and Maitland, History of English Law, vol. 2, p. 53. The concept has been generalized into acceptance. " Whatever worketh hurt, inconvenience, or damage, is a nuisance. 3 Black. Com. 215; 2 Greenleaf's Evid. 465" : Lancaster Turnpike Co. v. Rogers, 2 Pa. 114, 115 (1845); Nesbit et al. v. Riesenman et al., 298 Pa. 475, 482 (1930). And for our purpose I can see no point to argue on the meaning of nuisance.
" It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement [Commonwealth v. Cassidy, 1865, 6 Phila., Pa., 82] to a cockroach baked in a pie [Carroll v. New York Pie Baking Co., 1926, 215 A.D. 240, 213 N.Y.S. 553]" : Prosser on Torts, p. 549, Bamford v. Turnley, 122 Eng. Rep. 27, 31 (1862).
Suffice it that we find definition and limitation as circumstances arise, and thus get to what is, and what is not a nuisance, and how properly it is to be abated.
And I can suppose too the absence of doubt to put an end to conduct which hurts or damages or annoys, or (laterly) that affects the esthetic sense. Organized society impels to that kind of mutuality. A nuisance and its abatement comes well within the view of the general good and the comprehensive reach of the police power.
There were acts or omissions established as nuisances at the common law, but the legislature may formulate the common law (see note, 107 American State Reports 201), or change and enlarge upon it to ensure the " articulate voice" and not the " brooding omnipresence", and in public interest and within the limitations of public welfare, establish and declare what is a nuisance: Pittsburg v. W. H. Keech Co., 21 Pa.Super 548 (1902); Commonwealth v. Parks et al., 155 Mass. 531 (1892).
" While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty of choice in the means employed" : Lawton et al. v. Steele, 152 U.S. 133, 140 (1894), 119 N.Y. 226 (1890).
See Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878), Northwestern Laundry v. City of Des Moines, 239 U.S. 486, 491-492 (1916), Philadelphia v. Brabender, 201 Pa. 574 (1902), Bryan v. City of Chester, 212 Pa. 259, 262 (1905), and Smith et al. v. New England Aircraft Co., Inc., et al., 270 Mass. 511, 523 (1930).
The change is an extension, " a growth and adaption" of the common law to the present, its " peculiar boast and excellence" (Hurtado v. California, 110 U.S. 516, 530 (1884)), and is another instance of " the felt necessities of the time", an adequacy to change. Whether as devotee of the common law you refuse to give it an otiose status but on the contrary foresee in it generations of changing social-mindedness is not too much to our matter. The fact is, a defect in a highway is but another form of the nuisance of a log across it. Each is a stern reality and so to be considered and handled.
Coming closer to the point, and with these general considerations before me, it is clear enough that the legislature has a right to say that a defective private driveway -- because of defective grading or paving -- is a nuisance, and that something be done about it. I see no logical difficulty to such conclusion. It is in accord with the declared policy of our legislature for more than 100 years. See Acts of January 29, 1818, 7 Sm. L. 5, April 7, 1830, P. L. 348, April 4, 1866, P. L. 487, and June 25, 1913, P. L. 544. Private driveways, of the kind here before me, may be private in ownership, but public or semi-public in use. The driveways, though called private, open on public highways [4] (see section 4 of the act), and are open to the traffic of the tradesman and the passerby as well as to the owner or occupier. That far at least the driveways are public and of the public interest, and subject to public regulation. They are, in their very nature, a type of private property in which there is a great deal of public interest. They are commonly used by children, peddlers, delivery men, garbage and trash collectors, public utility meter readers and repair men, and others. It is proper for the State to require that some degree of safety be afforded these people. Failure properly to maintain a private driveway can be of danger to this segment of the public, and it is a valid exercise of the police power for the State to declare a bad condition of such driveway a nuisance and provide for abatement. Failure to maintain a proper grade in such driveway is a danger ultimately to the highways the driveway joins. The courts ought not to limit the legislature too closely in this connection. The Act of 1931 has no written legislative history (Statutory Construction Act of 1937, P. L. 1019, art. IV, sec. 51(7), 46 PS § 551 (7)), and I so interpret the word driveway in the act to help to its constitutionality. That the act deserves. See Hotel Casey Co. v. Ross et al., 343 Pa. 573, 578 (1942) and Commonwealth v. Reitz, 156 Pa.Super 122, 125 (1944).
By way of analogy, the right to enjoyment and use of private property is not without restrictions. Possessors of property owe duties even to adult trespassers (A. L. I. Restatement, Torts § 335), as well as to trespassing children: Altenbach et ux. v. Lehigh Valley R. R. Co., 349 Pa. 272, 275 (1944); A. L. I. Restatement, Torts § 339. These duties become greater in the case of nontrespassing visitors, whether gratuitous licensees, business guests, or persons with a privilege to enter independently of possessor's consent. See Fry v. Brubaker, 77 Pa.Super 438 (1921) and A. L. I. Restatement, Torts § § 341, 345. With respect to all such persons, dangerous conditions upon the property may result in the owner being liable for damages in the event of injury. Where the property is of a nature that it is used by a substantial portion of the public, either as tenants, employes, business guests, etc., the legislature may properly declare that a dangerous condition thereon constitutes a nuisance and provide necessary means for its abatement.
Thus it has been held a valid and reasonable exercise of the police power to require that, in the construction of buildings, floors should be laid for the protection of those employed thereon; sanitary plumbing, sufficient fire escapes, appropriate fire alarms and fire extinguishers, sufficient banisters, railings, stairways, etc., may be required in...
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