Borough of Freeland v. Poltrok ( 1933 )

Argued March 7, 1933. This appeal arises out of a scire facias on a municipal lien arising out of the construction of a sewer. There was an affidavit of defense filed, followed by a motion for judgment for want of a sufficient affidavit of defense. The court below refused to enter judgment deeming the matters involved in the defense were sufficiently pleaded and should be submitted to a jury. The defendant, inter alia, alleged that the cost of a main sewer was included in the assessment without lawful authority, that other improper items, mentioning them, were included, that the assessment was unequal because of the omission of assessable properties specifically named, and that the cost of a sewer in another water shed was included. These facts, in the present discussion, must be taken as verity. Lackawanna Trust Co. v. Carlucci, 264 Pa. 226, 107 A. 693. As has been repeatedly stated, it is only in cases where it is clear that the court erred in refusing judgment that we disturb the order appealed from. We all agree that in this case the facts should be developed at a trial.

The order of the court is affirmed.