James H. McHale, Philadelphia, for appellant.
Michael H. Egnal, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 55]
This municipal claim was filed in the name of the City of Philadelphia against the defendant for improvement of the street abutting his property. A writ of scire facias sur municipal lien was issued, to which the defendant filed an affidavit of defense. The use-plaintiff, Eastern Asphalt Company, obtained a rule for judgment for want of a sufficient affidavit of defense, and the court below, although it sustained the use-plaintiff's objections to the affidavit of defense, granted the defendant leave to file an amended affidavit. Defendant filed an amended affidavit of defense, and the use-plaintiff again entered a rule for judgment for want of a sufficient affidavit of defense. After argument, the rule was made absolute and judgment entered
[ 168 Pa. Super. Page 56]
in favor of the use-plaintiff. From that judgment the defendant appeals.
The municipal claim is for work done and materials furnished under a contract between the city of Philadelphia and the use-plaintiff pursuant to an ordinance passed by the city council on March 23, 1949. This ordinance authorized the 'paving of the track area and the repaving of the intersections of Sixty-third Street from Lansdowne Avenue to Lebanon Avenue and the resurfacing of the shoulders of Sixty-third Street', and provided further: 'It shall be a condition of the contract that the contractor shall accept assessment bills for any portion of the work which is legally assessable according to law'. Since only original paving as distinguished from repaving or resurfacing is 'legally assessable' against abutting property owners Mt. Lebanon Township v. Scheck, 159 Pa. Super. 189, 48 A.2d 53; Philadelphia to use v. Eddleman, 169 Pa. 452, 32 A. 639; Harrisburg v. Segelbaum, 151 Pa. 172, 24 A. 1070; Hammett v. City of Philadelphia, 65 Pa. 146, it is clear that the use-plaintiff is seeking to recover only for the work done in the track area as this is the only paving authorized by the ordinance.
The principal contention of the defendant is that the work done was not an original paving but rather a repaving for which he cannot be assessed, and the question before us is whether the amended affidavit of defense sets out this defense with sufficient particularity to entitle the defendant to have a jury pass on it. It is our conclusion that this question must be answered in the negative as it was in the court below. The amended affidavit of defense avers that by ordinance dated April 6, 1911, as amended by ordinance of May 15, 1912, the Department of Public Works of the city of Philadelphia was authorized to enter into contracts with competent payers to pave Sixty-third Street; and that said ordinances provided that the cost of said paving should
[ 168 Pa. Super. Page 57]
be assessed against the owners of property fronting on Sixty-third Street. The affidavit continues, 'The defendant is informed, believes and therefore avers that pursuant to the authority of the said Ordinances' the Department of Public Works entered into a contract with the Union Paving Company, dated October 1, 1912, wherein the said Company agreed to pave Sixty-third Street and accept assessments against owners of property fronting on said street as payment. It is further averred: 'The defendant is informed, believes and therefore avers that in accordance with the Ordinances referred to above, and in accordance with the contract between the City of Philadelphia and the Union Paving Company referred to above', Sixty-third Street was paved by the said company and the cost thereof was assessed against and paid by 'the owners of property fronting on Sixty-third Street'.
There is a presumption against the existence of a former city paving, and the burden is on the property owner to show that he is entitled to an exemption from assessment. Philadelphia to use v. Burk, 288 Pa. 383, 135 A. 635. Specifically, the burden was on the defendant -- if he is to maintain his chosen defense -- to aver, inter alia, that there had been an original paving of the track area of Sixty-third Street at some prior time and that the abutting owners had paid assessments for such paving. This burden is not met merely by quoting a prior ordinance authorizing the 'paving of Sixty-third Street' and then averring upon information and belief that pursuant to such ordinance a contract was entered into, the paving done and the assessments therefor paid by the abutting property owners. That more particularity ...