Appeal, No. 192, Oct. T., 1959, from judgment of Court of Common Pleas of Schuylkill County, Sept. T., 1954, No. 654, in case of Borough of Schuylkill Haven v. Oscar R. Bolton et al. Judgment affirmed.
Ralph M. Bashore, with him Cletus C. Kilker, for appellants.
H. G. Stutzman, with him Calvin J. Friedberg, for appellee.
Before Rhodes, P.j., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).
[ 190 Pa. Super. Page 159]
We are here concerned with an action by the Borough of Schuylkill Haven against Oscar R. Bolton and Lilly Bolton to recover a penalty imposed by Ordinance No. 321 requiring owners of improved property
[ 190 Pa. Super. Page 160]
to connect with the sewer system. The borough obtained judgment before a justice of the peace, and the Boltons appealed to the court of common pleas. That tribunal dismissed the complaint for want of jurisdiction, and we reversed on appeal. See Schuylkill Haven Borough v. Bolton, 181 Pa. Superior Ct. 364, 124 A.2d 485. The case then proceeded to trial, and the jury returned a verdict in favor of the borough. Motions filed by the Boltons for a new trial and for judgment n.o.v. were overruled by the court en banc, and judgment was entered on the verdict. This appeal followed.
Appellants' first contention is that there was a fatal variance between the pleadings and the proof. Paragraph 3 of the second amended complaint avers that appellants "are the owners of a certain lot and house situate thereon, known as No. 309 St. Peter Street ... which lot or piece of ground is more particularly described in Deed, recorded in the Office for the Recording of Deeds in and for the County of Schuylkill in Deed Book No. 623, page 27, which by reference thereto is made a part hereof". The sewer lateral actually extended to the curb of a lot described in Deed Book 796, page 32, which was a fifteen foot strip of land adjoining the lot first mentioned. The record clearly discloses that the two lots were used by appellants as one property. Furthermore, appellants indicated where the lateral should be placed or, at the very least, acquiesced in its location. The spot selected was marked with green paint at the curb, which mark was still visible at the time of trial and was observed by the jury. Any possible question in this regard was resolved by appellants' stipulation at the pre-trial conference.*fn1 While appellants later objected to the admission
[ 190 Pa. Super. Page 161]
of this stipulation on the ground that it was irrelevant and incompetent, the court below properly declined to countenance the attempted repudiation.
Appellants cite several cases for the proposition that the proof must conform to the facts alleged, among them Aland v. P-G Publishing Co., 337 Pa. 259, 10 A.2d 5, which holds that pleadings and proof must conform sufficiently to enable a defendant to meet at trial the same cause of action disclosed by the complaint. This rule is based on the sound reason that a defendant should not be taken by surprise at trial by being called upon to defend against matters of which he had no notice in the pleadings, or against a different cause of action. However, there need be only substantial conformity between what is alleged and what is proved: Stuart v. Scharff, 178 Pa. Superior Ct. 629, 114 A.2d 86; Smith v. Sheraden Bank, 178 Pa. Superior Ct. 621, 116 A.2d 346. We are all of the opinion that the proof offered at the trial in the case at bar substantially conformed to the allegations of the complaint. In view of the lengthy and involved procedural history of the instant matter, see ...