Borough of Dunmore v. Conrad , 1921 Pa. Super. LEXIS 172 ( 1921 )

Opinion bt

Linn, J.,

In numerous assignments appellant presents the following matters for review: invalidity of the assessment because (1) made by an illegal application of the foot-fiont method; (2) three lots were joined in one assessment; (3) the borough modified the contract; (4) it was not substantially performed; (5) he also asserts that pursuant to section 10 of the Act of June 4, 1901, P. L. 367; Act of April 2, 1909, P. L. 194, the lien expired before verdict or judgment on the claim; (6) that amendment of the claim should not have been permitted.

The record shows a trial on the merits of a scire facias sur municipal claim to recover a special assessment by the foot-front method on defendant’s real estate for its share of the cost of a sewer laid in front of it. This trial was conducted before a referee by agreement of the parties approved by the court pursuant to the local reference Act of April 6, 1869, P. E. 725, supplemented by the Act of June 22, 1871, P. L. 1363. Appellant has not brought up the testimony, his counsel having stated at the argument that they would present their contentions as apparent on the record without the evidence. Some eighty exceptions were filed to the referee’s findings of fact and conclusions of law and all were dismissed.

In 1909 an ordinance was approved providing for the construction of a system of public sewers in section “S” of the second sewer district of the borough, specifying in considerable detail what should be done and the streets in which the sewer should be laid and appropriating for payment the sum of “$33,759.40, or so much thereof as may be necessary, which sum shall be derived from assessments on the properties fronting, adjoining and abutting on and along the line of the said sewers according to the foot-front rule; provided, that on all corner lots more than eighty feet in depth, where the sewer passes on both sides, or where a sewer has previously been constructed on the short side or will hereafter be constructed on the short side, an allowance of two-thirds of the length of the long side shall be made; and on all lots where the sewers pass at both ends, an allowance of one-half of one end shall be made, and on all lots less than seventy feet in depth, where the sewer passes along the long side only, an allowance of one-half of the length of the lot shall be made, and on all lots where the sewer passes at both ends and on one side, an allowance of the side and one-half of the shortest end shall be made, and which allowances are deemed just and equitable by the council.”

Pursuant thereto a contract for the work was duly executed but before it was completed a supplemental agreement was made providing that the diameter of the sewer be reduced in some streets and that a change in level be made for a large part of its length, thereby reducing the amount of excavation required as well as the cost of the work. Performance of this contract was the subject of litigation reported as Conrad v. O’Boyle et al., 61 Pa. Superior Ct. 467. The sewer was completed in front of defendant’s property in 1910 and on October 31, 1910, this municipal claim was filed; on October 29, 1915, a sci. fa. to revive was filed. An affidavit of defense was put in May, 1916, and on March 24, 1920, the parties made the agreement of reference and waived trial by jury. The report of the referee was filed Octor 27, 1920, and on December 30, 1920, the court dismissed the exceptions and confirmed the report of the referee who in this report had directed the prothonotary to enter judgment for plaintiff for $1,110.88 (apparently according to established local practice under the reference statutes: Torrey v. Scranton, 133 Pa. 173, 179; McCarthy v. Masters, 142 Pa. 82, 83). The referee found that the change in level of the sewer resulted in reducing the cost of the excavation not only by $1,335.90 as the engineer had reported and the council had approved, but by $5,874.08 or at the rate of fifty cents per lineal foot of sewer and that “the defendant is entitled to a deduction of twenty-five cents each foot front from the amount of the assessment and no other reductions.”

1. In the municipal claim filed it is stated that “. the assessment was made in and by said ordinance and was according to the foot-front rule with certain allowances for corner, triangular and other irregularly shaped lots and the amount of foot frontage with which the said lot was assessed is 348 feet.” Appellant complains that the referee and the court declined to hold the assessment invalid for alleged misapplication of the foot-front rule. Assessments by that method are authorized by the statute governing the borough’s action. Section 2 of the Act of May 15, 1889, P. L. 220, provides: “Whenever any borough shall determine to construct any public sewer, it shall have power, by ordinance or ordinances duly passed, to assess the cost thereof as a sewage tax upon the property adjoining or adjacent to the same, either by the foot-front or in such other manner and in such proportions and amounts as to the burgess and town council may seem just and equitable.” It has frequently been said that tbe foot-front rule is not a principle of taxation but merely a convenient method reasonably certain to produce a substantially fair result in built-up sections, adopted and sustained as a practical adjustment of proportional benefits; tbe decisions were considered by Judge Portee in Scranton v. Koehler, 14 Pa. Superior Ct. 1, at page 20, etc. (see same case in 200 Pa. 126), and by President Judge Rice in Harrisburg v. McPherran, 14 Pa. Superior Ct. 473 at 488, etc. As tbe method furnishes only a working rule for the practical adjustment of proportional benefits conferred upon property by a local improvement, the cost of which shall be collected out of the property, it is obvious that we cannot determine whether the rule was misapplied in this case without considering the evidence which we do not have. If the assessment was too large because of misapplication of the rule, an adjustment would have been proper under Witman v. Reading, 169 Pa. 375, 392, and Park Avenue Sewers, 169 Pa. 433. We must assume that there was sufficient evidence .to justify the conclusion of the referee that appellant was entitled only to a deduction of twenty-five cents per foot-front upon the whole case.

We cannot say that the part of the ordinance providing for allowances on corner lots, etc., quoted renders the ordinance invalid. The presumption is in favor of validity and it had been held that article I, section 9, of the Constitution providing that “all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax” does not apply to assessments for the cost of such local improvements ; the decisions are collected in Judge Simonton’s opinion in Harrisburg v. McPherran, 14 Pa. Superior Ct. 473 at 482, etc. In their brief counsel for appellant say, “It may be admitted that as to corner lots where the sewers extend along both sides, an assessment on both is liable to be excessive; and so also where there are sewers along both ends. And the provisions of the ordinance may probably baye been intended to try and limit tbis. _|.,.Tbe amount wbicb was not put upon tbe corner or double-end lots bad to be borne by others increasing tbeir assessments and thus operating to tbeir disadvantage. And wbo shall say what is tbe proper allowance for lots wbicb are expected because of tbe possibility of a sewer on tbe short side being sometime built? Tbe uncertain and difficult rule wbicb was so adopted by tbe ordinance we submit was invalid.” It is not necessarily either uncertain or difficult; that may depend upon tbe general sewerage plan adopted by tbe borough of wbicb section “S” of tbe second district is only part, or on other considerations of wbicb tbe record does not inform us. But it is a question of fact whether an assessment can be sustained by tbe foot-front rule: McKeesport v. Soles, 165 Pa. 628, and 178 Pa. 863, and that fact has been determined against appellant. Without tbe evidence we cannot determine that tbe rule prescribed in tbe ordinance will not furnish such substantially fair and equal apportionment as tbe law of Pennsylvania requires. “It is in tbe application of tbe rule its legality in each case is to be determined”: Keith v. Phila., 126 Pa. 575 at 581.

2. Joining three lots in one assessment is not necessarily harmful. In tbis case it saved defendant costs incident to having three claims filed against bis property instead of one. While tbe ordinance describes tbe land apparently as three separate lots, each with a frontage of 116 feet with an assessment of $266.80 against each lot, tbe claim filed states tbe amount as $800.40, and describes tbe property as “lot No. 1A, 2A, 3A.and is situate.being 348 feet in width in front.” No question was made of tbis in the affidavit of defense; there is no suggestion that tbe lot is not in fact a single lot as described in tbe claim: Borough v. McCoacb, 52 Pa. Superior Ct. 527, is directly against appellant. ,

3. Tbe modification of tbe contract has not been shown to be wrong. After tbe work bad begun tbe borough council by supplemental agreement with the contractor agreed to use sewer pipes of less diameter in certain streets than originally proposed and reduced tbe contractor’s compensation accordingly. The borough engineer also changed the sewer level, as has been stated and in the language of the referee “also in certain minor matters [made changes] as set forth in his final estimate and report which estimate and report was approved by the council.” There is no suggestion in the argument that these changes were induced by fraudulent or other improper conduct. The ordinance authorized the borough engineer to make the changes he ordered and 'they were approved by the borough council.

4. The contract was substantially performed. The referee found “The contract was performed in accordance with its terms and the terms of the ordinance as modified by the borough council and by the borough engineer, whose modifications were approved by the borough council.” In affirming numerous requests for findings of fact stating the same result in various ways, he also found that the sewer had been substantially constructed in accordance with the contract and its supplement, and had been accepted and used by the borough and by the appellant for years. Without any evidence to show he was wrong, we conclude he was right. The obligation to pay for accepted substantial performance is settled: Pepper v. Phila., 114 Pa. 96; Filbert v. Phila. 181 Pa. 530; Pressy v. McCornack, 235 Pa. 443, 447.

5. We cannot agree with appellant’s contention that there was failure to comply with the Act of June 4, 1901, section 10, P. L. 367 (amended 1909, P. L. 194) ; and that in consequence the lien was lost. Section 10 provides: “Upon each tax or municipal claim a writ of scire facias, in the form hereinafter set forth, must issue within five years from its filing, and verdict must be recovered or judgment entered on the scire facias within five years after it is issued. Final judgment must be entered on the verdict within five years after its recovery. After judgment is entered, it must be revived by writ of scire facias to revive the judgment; or by judgment thereon within each recurring period of five years. If a claim be not filed within the time aforesaid, or if it be not prosecuted in the manner and at the times aforesaid; it shall be wholly lost: Provided, however, If a verdict be recovered before a jury after trial or judgment be entered on such verdict, the lien thereof shall continue for' five years from such recovery or entry, though a new trial be granted or the judgment be reversed on appeal.” Appellant’s position is that as the sci. fa. to revive issued October 29, 1915, the act required that a “verdict must be recovered or judgment entered on the scire facias within five years after it is issued,” but as the report of the referee was filed within only two days of the expiration of the five-year period, the lien was lost on October 29, 1920, because there was then neither verdict nor judgment within the meaning of the 10th section quoted. In the referee’s report filed October 27, 1920, as we have stated, he said “judgment should be entered in favor of the plaintiff and against the defendant in the sum of $1,110.88.,” and directed the prothonotary so to enter judgment; such an entry was made upon that date by the prothonotary in the continuance docket and also upon the judgment index where under “Nature of lien” it was stated to be a referee’s report. The cases already cited show that apparently this was the practice pursued locally under these reference statutes, for in the Torrey case the Supreme Court considered that the referee “entered judgment against” defendant: 133 Pa. 173, 179. Appellant however says that since these statutes provide that, exceptions may be filed to the report, of the referee, as was done here, and require that they be considered and disposed of by the court, which could not be done until after the expiration of the five years, the requirements of the 10th section of the Act of 1901 were not complied with. It is of course settled that the Act of 1901 must be followed strictly: Scranton v. Genet, 232 Pa. 272. But the construction of the reference statutes, the established practice thereunder, the agreement of the parties to waive a jury trial and submit to tidal before the referee are also elements in the problem, and we are of opinion that in the circumstances of this case there has been adequate compliance with the 10th section. The report shows that a number of municipal claims to recover sewer assessments under the same ordinance were referred to the same referee and apparently tried together, and the referee quotes a stipulation signed by counsel for the parties agreeing that requests for findings of fact and law filed in this case shall be considered with the same effect as though separately filed in each suit, the parties agreeing that “the referee may make the findings binding upon all cases” save as differences in names, description of property, frontage, “the amount assessed in the original assessment and the revised assessment” require changes and which “findings binding upon all cases” shall include “the amount of judgment and all other like matters.” We need not go into the changes made in the practice established by the Act of April 6,1869, P. L. 725, when its provisions were extended by supplement of June 22,1871, P. L. 1363; they are considered in Butterfield v. Lathrop, 71 Pa. 225, and Thornton v. Enterprise Insurance Co., 71 Pa. 234, 239, 240, where Justice Shaks-wood, speaking for the court, concludes, “It is our duty to mould the course of proceedings under the special acts providing for the reference of civil cases, so as most nearly to conform to the common law, and to be regulated by principles and rules most familiar to all.” While immaterial in this discussion, it may be that pursuant thereto the practice arose by which referees direct judgment to be entered as was done in this case. Nor is it necessary now to consider the practice established under the General Reference Act of 1874, P. L. 166, and its supplements.

These parties waived a jury trial and agreed upon a mode of trial under a statute providing that “The trial by the referee shall be conducted in the same manner as a trial by the court with a jury.” (1869 P. L. 726; Naugle v. Nescopeck Twp., 225 Pa. 68) subject to the right of the parties to have the court pass upon exceptions as stated in the supplementary Act of 1871, P. L. 1363. We have referred to the apparently established practice under these reference statutes and to the stipulation authorizing the referee to state “the amount of the judgment”; it has been held that in such references “the finding of facts is equivalent to a special verdict.”: Butterfield v. Lathrop, 71 Pa. 225; Marr v. Marr, 103 Pa. 463, 468. In selecting this mode of trial the parties must be held to have agreed that it be treated as appropriate and adequate to try the primary issue presented, and in the words of Justice Stewart in speaking for the Supreme Court about the 10th section of the Act of 1901 in Scranton v. Genet, that issue was why appellant’s “property should not be under judicial subjection to á municipal claim”,: 232 Pa. at 277; and appellant ought not now be heard to question its adequacy for any cause urged upon us.

6. The amendment of the claim was proper. The petition to amend set forth “by mistake the details of the kind and character of said work were not minutely set forth” and an amendment was duly allowed adding to the claim as originally filed certain details of the kind and character of the work done. The objections were two-fold: (a) that.there was no lien to amend; (b) that more than six months had elapsed since the work was done in front of claimant’s property. As we have already shown the claim was not invalid. The second objection is also without merit. Section 35 of the Act of June 4, 1901, P. L. 364, provides: “Any claim, petition, answer, replication, scire facias, affidavit of defense, or other paper filed of record, may be amended from time to time.by leave of the court upon petition for that purpose.setting forth the amendment desired, that the amendments therein contained are true in fact, and that by mistake they were omitted. .Such amendments shall be of right, saving intervening rights.” The amendment was within the provisions of the act: New Castle v. Berger’s Heirs, 74 Pa. Superior Ct. 548. The assignments of error are overruled and the judgment is affirmed.