City of Chester v. Holden , 1920 Pa. Super. LEXIS 41 ( 1920 )

Opinion by

Head, J.,

The action was scire facias sur municipal lien. The defendant filed an affidavit of defense and the plaintiff took a rule for a summary judgment because of its alleged insufficiency. The court below discharged the rule and the plaintiff appeals.

It seems to be necessary to occasionally remind ourselves that summary judgments which involve the denial of a trial by jury are properly entered only where it is manifest from the record that there exists no meritorious defense to the claim of the plaintiff. The gist of the defense in the case before us is that the plaintiff city is seeking to assess the cost of a second paving or repaving of a street against the abutting property owners. Everyone concedes that the right of the city to so assess abutting- property is confined to cases of first paving. The correctness of this conclusion is obvious when we keep in mind that while it is the right of the city to permanently improve a street and assess the cost of such improvement upon the abutting properties, when such improvement is once made it is the plain obligation of the city at large to keep in repair the street so improved.

What is a first pavement within the meaning of the principle just stated? The question has been answered many times and usually in the language of Mr. Justice Mitchell in Philadelphia v. Eddleman, 169 Pa. 452: “A first pavement therefore, in the legal sense, which exempts the abutting property owner from liability for any subsequent improvement, may be defined generally as one that is put down originally or adopted or acquiesced in subsequently, by the municipal authority, for the purpose and with the intent of changing an ordinary road into a street. It may be of macadam or of anything else. That is a matter of evidence only. If the purpose and intent be wanting, a mere surfacing of the road, however carefully or expensively done, will not be a paving, but if the intent and purpose are present, or to be fairly inferred, then there is a paving whatever the material may be. It may perhaps be safely stated as a corollary that, prima facie, macadamizing is not a street paving in Philadelphia or probably in other large cities, while on the other hand there may be a presumption the other way in smaller cities or towns.” The affidavit'avers that the entire roadway of the street in question had previously been macadamized by and under the authority of the city; that the work done by the city consisted primarily of grading the roadway and then macadamizing the same, first, by putting large stones on the bottom, smaller stones, thereon, and then a top dressing,* that this work was done from curb to curb, by the city, with the intention of turning a country road into an improved city street.

It is not the obligation of a defendant, in filing an affidavit of defense, to set forth the evidence by which he expects to prove the facts he avers to the end that the court may, in limine, determine questions as to the competency of witnesses or the admissibility and sufficiency of the evidence to be produced. Nor is it necessary that he should aver in any particular set form of words the essential facts referred to in the language of Mr. Justice Mitchell we have quoted. It is distinctly averred that an improvement of the street was made by the city, that it extended over the full width of the street, that it was of a nature adequate to measure up to the standard of a permanent improvement; that it was done by the authority of the city, with the intent and purpose, on the part of the municipality, of converting what had before been an unimproved road or highway into an improved city street. If, upon the trial of the case, the defendant is able to offer evidence to warrant a jury in finding the truth of these averments, we think it reasonably plain that the learned court below was correct in making the order appealed from.

The appeal is dismissed at the cost of the plaintiff without prejudice, etc.