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PHILADELPHIA v. NORTHWOOD TEXTILE MILLS (03/16/59)

March 16, 1959

PHILADELPHIA
v.
NORTHWOOD TEXTILE MILLS, INC., APPELLANT.



Appeal, No. 340, Jan. T., 1958, from judgment of Court of Common Pleas No. 2 of Philadelphia County, March T., 1957, No. 5586, in case of City of Philadelphia v. Northwood Textile Mills, Inc. Judgment affirmed.

COUNSEL

Richard R. Ransom, with him James C. Crumlish, Jr., and Davis, Marshall & Crumlish, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Karl I. Schofield and James L. J. Pie, Assistant City Solicitors, and David Berger, City Solicitor, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Cohen

[ 395 Pa. Page 113]

OPINION BY MR. JUSTICE COHEN

The two questions for our determination are (1) whether or not the City of Philadelphia is estopped from asserting its statutory lien for unpaid water and

[ 395 Pa. Page 114]

    sewer rents because it failed to notify the owner of the real estate (Northwood Textile Mills, Inc.) of the delinquency as required by Title 19, Section 1606(3) of the Code of General Ordinances, and (2) is it also estopped from asserting its lien where the City negotiated only with the tenant for payments of the delinquent water and sewer rents?

A lien was filed against the defendant-property owners for excess water and sewer rents pursuant to the Act of May 16, 1923, P.L. 207, as amended, 53 P.S. ยง 7107. Subsequently, an amended Writ of Sci. Fa. was issued and served on defendant to which defendant filed an affidavit of defense and counterclaim. The City filed a motion for judgment for want of sufficient affidavit of defense and also preliminary objections to the defendant's counterclaim. After both motions were sustained the defendant took this appeal from the judgment of the lower court.

It is undisputed that the services were supplied by the City; that the unpaid water charges amount to $21,938.73, and that a lien was filed against the premises pursuant to the Act of 1923.

The Act of 1923 creates a remedy for the collection of delinquent water and sewer rents by providing that: "The lien ... for water rates ... or sewer rates ... shall exist in favor of, and the claim therefor may be filed against the property thereby benefited by, the municipality extending the benefit ...." The action is one in rem, Girard Trust Corn Exchange Bank v. Ermilio, 178 Pa. Superior Ct. 316, 319, 115 A.2d 922 (1955), and is enforceable against the property benefited. No personal liability can be asserted by the City against either tenant or owner.

Title 19, Section 1606(3) of the Code of General Ordinances of the City of Philadelphia provides: "(3) If any water or ...


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