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PHILADELPHIA v. PHILLIPS. (07/21/55)

July 21, 1955

PHILADELPHIA, TO USE, APPELLANTS,
v.
PHILLIPS.



Appeal, No. 151, Oct. T., 1954, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1953, No. 13891, in case of City of Philadelphia, to use of Polselli and Angelucci, to use of Lewis Bokser, to use of Central-Penn National Bank, v. Julius Phillips and Rose Phillips. Order affirmed.

COUNSEL

Lester S. Hecht, for appellants.

Edward J. Hardiman and K. I Schofield, with them Wesley H. Caldwell and Roper & Caldwell, for appellees.

Karl I. Schofield, Assistant City Solicitor, with him Jerome Shestak, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for City of Philadelphia, under Rule 46.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Ervin, JJ. (ross, J., absent).

Author: Woodside

[ 179 Pa. Super. Page 89]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County refusing to enter judgment for want of a sufficient affidavit of defense to a municipal claim. It involves the interpretation of a city ordinance.

The defendants own property abutting Upsal Street, Philadelphia. The street has a width of 52 feet. A middle strip of 33 feet of this street was paved by the city in 1943, and the cost of one-half, or 16 1/2 feet, of this paving was assessed against the predecessors in title to the premises now owned by the defendants.

Once a city has assessed abutting owners for paving a street, no future assessment for repaving or repairing that same area can be made. Hammett v. Philadelphia, 65 Pa. 146 (1870); Phila., to use, v. Scholl, 68 Pa. Superior Ct. 404, 413 (1917). The city may, however, assess for paving the shoulders when only the middle of the street was previously assessed, or vice versa. Philadelphia v. Evans, 139 Pa. 484 (1891), West Liberty Avenue, 70 Pa. Superior Ct. 348 (1918).

Thus the city could never again provide by ordinance or otherwise for the assessment of the abutting property owners on Upsal Street for the 33 feet paved in 1943. But it could thereafter, if it so desired, provide by ordinance for the assessment of the abutting owners for paving the previously unpaved portion.

Prior to 1951 the city assessed all the cost of original paving against the abutting property owners regardless of the width of the paving. That year the city

[ 179 Pa. Super. Page 90]

    adopted an ordinance, the pertinent part of which is as follows:

"Whenever by authority of Council any street or highway or portion thereof is paved, the cost thereof, exclusive of street intersections, shall be proportionately assessed against the owners of the properties abutting on said streets or highways according to their respective fronts except properties exempt by law, from such assessments: Provided that said abutting owners shall not be charged more than the contract price nor for more than an eighteen feet width of paving, and in no cases more than eight (8) dollars in the aggregate per linear foot of assessable property frontage for any type or class of paving, including base and intermediate and surface courses; that no deductions from the assessments so made shall be allowed; that the assessment bills shall be prepared and collected in accordance with existing laws; that any amount in excess of the assessment herein provided shall be paid by the City." (Italics supplied for emphasis)

In 1953 the city, proceeding under the above ordinance, paved the remaining nineteen feet of Upsal Street abutting the defendants' property, and is now attempting to assess the cost of paving 9 1/2 feet against ...


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