Swissvale Borough v. Dickson , 269 Pa. 19 ( 1920 )

Opinion by

Mr. Justice Moschzisker,

These two appeals involve the same question, and it is agreed between the parties litigant that they be disposed of as one.

The Borough of Swissvale liened certain real estate of defendants, to recover for municipal improvements made in front thereof; when the cases came to trial, binding instructions were given against plaintiff, and it has appealed.

In an opinion sustaining the judgments, the court below states: “The fundamental question involved in all these cases was whether Schoyer avenue was a public street, as contended by plaintiff, or a mere private road,” as contended by defendants. The opinion then goes on to say that this controlling question was decided in a prior action, on another lien, against the contention of plaintiff, and that this decision was affirmed on appeal, in Swissvale Borough v. Dickson et al., 68 Pa. Superior Ct. 160.

There is no question about the liened property being the same in all these cases, and plaintiff’s statement of questions involved, on the present appeal, concedes the parties to be the same here as they were in the Superior Court.

In the last-mentioned case it was definitely decided, on the same or similar evidence as that offered here, that Schoyer avenue, at the location in question was not a public highway in 1907; and, considering the. fact that this determination represents an adjudication of a legal controversy on the point, in the present instance the burden was on plaintiff to prove that, after 1907, and before the improvements here litigated were officially authorized, in 1911, the locus had, in some formal manner, become a public street. This, plaintiff, failed to do; hence the court below did not err in giving binding instructions for defendants.

Philadelphia Parkway, 250 Pa. 257, is properly distinguished from the present case by Judge Henderson in Swissvale v. Dickson, supra; and, as he there says, that case “stands on its own facts.”

We recently decided, in State Hospital for Criminal Insane v. Consolidated Water Supply Co., 267 Pa. 29, 39, that, “while the decisions of subordinate appellate courts are not stare decisis in a higher court, yet, when all other circumstances essential to the application of the doctrine of res adjudicata exist, such decisions will be treated, in a subsequent suit between the same parties [involving the same subject-matter], as conclusive”; this doctrine applies here.

The assignments of error are overruled and the judgment affirmed.