East McKeesport Boro. v. Thos. P. Heirs

Argued April 24, 1923. These appeals are from judgments entered by the court below for want of a sufficient affidavit of defense in actions of scire facias upon a municipal claim filed under the provisions of the Act of June 4, 1901, P.L. 364, and the amendments thereof.

Viewers were appointed, under the provisions of the Act of May 16, 1891, P.L. 75, and the supplements and amendments thereof, to ascertain the costs, damages and expenses and to assess the benefits arising from the grading, paving and curbing of Greensburg Avenue, in the borough of East McKeesport. The report of viewers was filed and confirmed nisi on February 9, 1912, and benefits assessed on the property of the appellant to the amount of $1,595.71. Within thirty days from the filing of the report, Mary Park, the present appellant, appealed and demanded a jury trial, which trial resulted, on September 23, 1915, in a verdict in favor of the borough in the sum of $850.00. Judgment was duly entered upon that verdict on January 19, 1916, and no appeal therefrom was taken. We thus have it determined by a judgment upon the verdict of a jury that the property of this appellant was benefited by the improvement and the amount of that benefit conclusively determined.

The defense asserted in the affidavit is alleged to be founded upon the action of the court below in dealing with the final confirmation of the report of viewers, subsequent to her appeal therefrom and while that appeal was pending, which resulted in the alleged failure of the borough to file the claim in time. The report of viewers having been confirmed nisi on February 9, 1912, was confirmed absolutely by the court on March 13, 1912, the appellant in the meantime having taken her appeal and demanded a jury trial. Other parties to the proceeding subsequently presented a petition to the court praying the court to strike off the absolute confirmation of the viewers' report, upon the ground that notice of the filing of the report of viewers had not, prior to the final confirmation, been published in a newspaper, as provided by the Act of April 2, 1903, sec. 1, P.L. 124. The court granted a rule to show cause why the confirmation should not be stricken off, which rule was made absolute on September 8, 1913. The viewers' report was then duly advertised and, upon proof of such advertisement, was on October 24, 1913, confirmed absolutely. The contention of the appellant is that the original absolute confirmation of the report, on March 13, 1912, was as to her a final judgment and that the subsequent proceedings were a nullity; that in order to preserve the lien of the claim the borough was required by the Act of June 4, 1901, P.L. 364, and the supplements thereto, to file the municipal claim within six months from the final confirmation, which period expired on September 13, 1912, and the lien not having been filed until December 12, 1913, the claim was wholly lost.

It may well be doubted whether the failure to publish in a newspaper notice of the filing of the report, is such a jurisdictional defect in the proceeding, as to render the absolute confirmation of the report a nullity, or merely to render the assessments nonconclusive: Erie City v. Willis,26 Pa. Super. 459. That question we do not decide. It was an irregularity which it was within the power of the court to correct, and this it did by striking off the confirmation, and ordering publication. The subsequent final confirmation was a final judgment, and not having been appealed from became conclusive. This appellant was not deprived of any right because of the failure to publish notice of the filing, for she knew that the report had been filed and from it took her appeal: Marshall Avenue, 213 Pa. 516. If the first absolute confirmation of the report, on March 13, 1912, was a mere nullity then the court had power to correct the error at any time and the final absolute confirmation was the only such confirmation in the case. What we here say must be understood as applying only to the peculiar facts of this case. It was only necessary, for the reason hereinafter stated, for the borough to show that there had been an absolute confirmation of the viewers' report and that a lien had been subsequently filed in proper form.

The failure to file the claim within six months was an act which the legislature might have dispensed with by a prior statute, and it was within the legislative power to remedy the defect by a retroactive statute: Towanda Boro. v. Fell, 69 Pa. Super. 468; Huntingdon Boro. v. Dorris, 78 Pa. Super. 469. The Act of May 12, 1921, P.L. 545, seems to have escaped the attention of the court below and of the learned counsel in this appeal. That statute cured all defects of the nature of that with which we are now dealing in proceedings by boroughs to collect claims for grading, paving and curbing streets; for it not only validated defects in proceedings by the council authorizing and directing the improvement, but also provided that when "the proceeding in the filing of any municipal claim or lien therefor, are for any reason defective or invalid, and especially in any case in which the borough solicitor has failed to file said lien in the prothonotary's office within the time provided by law, such proceedings, authorizing the improvement, and any municipal claim or lien filed therefor, are hereby validated and made binding for the amount justly and equitably due and payable on account of such grading, paving and curbing." The specifications of error are dismissed.

The judgments in the appeals Nos. 56 and 57, April Term, 1923, are affirmed.