City of Pittsburg ex rel. Flanagan v. Fay , 1898 Pa. Super. LEXIS 57 ( 1898 )

Opinion by

Reeder, J.,

This is an action of • assumpsit to recover the actual cost of paving in front of the defendant’s property on Hazlewood avenue in the city of Pittsburg. The only defense was that she had never been notified to lay the sidewalk before the city did the work.

Before a city can file a municipal lien with the added penalty for laying a sidewalk the provisions of the act of May 16, 1891, must be complied with, one of which requires notice to be given to the owner of the property. That however is not this case.

This is not a proceeding under the act of 1891, but is an action of assumpsit to recover upon a quantum meruit for the actual cost of work done and materials furnished for the benefit of defendant’s property with her full knowledge and without objection by her, until the work was completed and payment of the cost demanded.

It is the primary duty of property owners along a street to lay the sidewalks and keep them in repair. It is the duty of the city to see that property owners perform this obligation and if they neglect to do so the city is liable for any injury that may result. If the property owner neglects this dutjr the city may do it, and if it is done with the actual knowledge of the owner and without his protest the city may recover the actual cost of the pavement or repairs in an action of assumpsit, or if the provisions of the act of 1891 are complied with, may file a municipal lien against the property with the penalty added for srich neglect. In the city of Pittsburg, however, the method by which the city shall lay sidewalks where the property owner neglects to do so is regulated by ordinance, and therefore the ordinance must be strictly conformed to. The act of assembly requires that notice shall be given to the property owner. The city ordinance provides that written notice shall be given to the property owner and that twenty days after service of written notice if the property owner does not lay tbe pavement tbe city may do so. Under tbe act of assembly tbe notice may be verbal or written ; under the ordinance it must be written. In this case the fact has been determined by the verdict of the jury that a written notice was served more than twenty days before the city commenced the work. The only question in the case is, Was this notice a sufficient notice within the terms of the ordinance to entitle the plaintiff to recover ?

The notice was to “ Patrick Fay’s Estate, per Mrs. B. Fay.” It read, “ You are hereby notified to lay 5 ft. flagstone pavement in front of your lot on Hazlewood Avenue.” Her husband, Patrick Fay, had been dead ten years and left no property on Hazlewood avenue. She, in her own right, owned this property. She knew when she received this notice-that it could only refer to the property to which she held the title. The obligation was hers to comply with its terms and if she refused or neglected to do so it was clearly the right of the city to proceed to collect the cost of the same by an action of assumpsit or to file a municipal lien upon the property. This view of the case disposes of the question. It can make no difference whether she knew or did not know that the sidewalks were being laid. Therefore the admission of that testimony could not affect the final determination of the case. While it is true, as we said in Pittsburg v. Daly, 5 Pa. Superior Ct. 528, the liability of the lot owner is a primary one which exists independently of the statute. The liability of the city is secondary to compel the performance by the lot owner of this duty. In Phila. v. Meighan, 159 Pa. 495, the Supreme Court affirmed the proposition that in the absence of notice the plaintiff is entitled to recover not what the cost of laying the pavement was to the city, but the amount which it would have cost the defendant to lay it. But this question is not one in controversy under the pleadings. The city rests its right to recover because of written notice according to the provisions of the ordinance. The defendant did not contend upon the trial of the case that it was not put down as cheaply as she herself could have had it done.

Judgment affirmed.