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NEW KENSINGTON v. GARDNER (12/06/52)

December 6, 1952

NEW KENSINGTON, APPELLANT,
v.
GARDNER



Appeals, Nos. 145 and 146, March T., 1952, from order and decree of Court of Common Pleas of Westmoreland County striking from the record Municipal Claims filed at Nos. 16146 and 16147, in case of City of New Kensington v. Kenneth M. Gardner, Edward Ross Gardner, Nestor Debay and A. J. Aberman, Inc. Order reversed.

COUNSEL

Robert W. Smith, with Harry W. Crum and Smith, Best & Horn, for appellant.

Fred B. Trescher, with him Kunkle & Trescher, for appellees.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 372 Pa. Page 73]

OPINION BY MR. JUSTICE MUSMANNO

The City of New Kensington, on June 28, 1950, filed two municipal (sewer) claims against certain property located in New Kensington, Westmoreland County, Pennsylvania, owned by Kenneth M. Gardner and Edward Ross Gardner, and Nestor Debay, terre tenant and A. J. Aberman, Inc., terre tenant.

[ 372 Pa. Page 74]

On August 16, 1950, Kenneth M. Gardner, Edward Ross Gardner and A. J. Aberman, Inc., filed a petition to strike off the lien in each case averring that:

(1) the lien shows on its face that the sewer is a main or carrying sewer and the City is and was without authority to assess the whole cost of such a sewer against the owners of adjoining or abutting property.

(2) the lien fails to set forth the date of completion of the sewer in front of the particular piece or pieces of property to be assessed.

(3) the lien contains no averment that the ordinance therein named authorized the assessment of the cost of laying the sewer against anyone.

(4) the lien fails to show it was filed within six months from the time the work was done in front of the ...


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