Somerset Borough v. Sweitzer , 54 Pa. Super. 283 ( 1913 )

Opinion by

Porter, J.,

The borough of Somerset, under the authority conferred by the Act of April 23, 1889, P. L. 44, paved a street, caused two-thirds of the cost of the improvement to be assessed against properties abutting thereon, and filed claims against said properties, among which was that of this defendant, in strict conformity with the provisions of sec. 11 of the Act of June 4, 1901, P. L. 364. A writ of scire facias was issued upon the claim filed against the property of the defendant and the trial resulted in a judgment in favor of the borough, from which the defendant appeals. The appellant states the question involved to be: “Is it not necessary to entitle plaintiff to recover, that it prove on the trial that a petition of at least two-thirds of the owners of the properties on the street graded and paved, was presented to council before the ordinance was passed and improvement made, where there is no reference in the lien filed that such petition had been presented?”

The claim conformed to the requirements of the act of June 4,1901, and sec. 20 of that statute makes it evidence of the facts thus necessarily averred, and it was not incumbent on the plaintiff in the presentation of its case in chief, to disprove allegations of the affidavit of defense: Allentown v. Ackerman, 37 Pa. Superior Ct. 363. There had been a petition presented to council for the improvement of this street. The petition was offered by the defendant and admitted in evidence by the court. The appellant has not printed it in his paper-book and we might quash the appeal for that reason, but, instead of quashing, we will accept the statement in the opinion of the court below, that the petition was verified by the affidavit of W. L. Morrison, one of the petitioners. Counsel for the defendant made a formal admission, at the trial, that, within ten days after the passage and approval of the ordinance authorizing the improvement, there were posted along the line of the proposed improvement notices which strictly and fully complied with the provisions of the Act of April 14,1905, P. L. 168. The borough having thus given notice that the petition for the improvement had been signed by two-thirds of the owners of property,, representing not less than two-thirds of the number of feet of the property fronting on the street, had brought itself within the protection of the act of April 14, 1905, and it became incumbent on anyone who desired to question the sufficiency of the signatures to the petition to do so in the manner provided by that statute. The remedy was by an appeal to the court of common pleas, within the time limited by the statute, under penalty of estoppel. The question as to whether the signers of the petition were, in interest and numbers, sufficient is, in this case, set at rest by the act of 1905: Beechwood Avenue: O’Mara’s App., 194 Pa. 86. The offer of evidence by the appellant, tending to show that some of the signers of the petition did not own the property which they undertook to represent, was properly excluded. When a borough gives the notice necessary to bring it within the protection of the act of 1905, one of the results is to avoid the necessity of trying a number of ejectment suits in the proceeding to enforce a municipal claim.

The judgment is affirmed.