Appeal, No. 240, April T., 1962, from order of Court of Common Pleas of Allegheny County, July T., 1959, No. 2996, in case of Township of Mount Lebanon v. Dorrance F. Hobbes et ux. Order affirmed.
Adolph L. Zeman, with him Robert L. Zeman, Jack W. Plowman, and Rose, Houston, Cooper & Schmidt, and Zeman & Zeman, for appellants.
Frank L. Seamans, with him Barton Z. Cowan, and Eckert, Seamans & Cherin, for appellee.
Before Rhodes, P.j., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).
[ 201 Pa. Super. Page 32]
The plaintiff, a first class township, filed a writ of sci. fa. sur municipal claim against the defendant property owners for the cost of construction of a sidewalk in front of their premises. In their affidavit of defence, Mr. and Mrs. Hobbes claimed that the township gave them no notice and no opportunity to construct their own sidewalk as is required by § 7 of the Municipal Claims Act of May 16, 1923, P.L. 207 (53 PS § 7141). The township then filed a motion for judgment for want of a sufficient affidavit of defence, contending
[ 201 Pa. Super. Page 33]
that § 7 of the Municipal Claims Act is superseded by § 2303 of The First Class Township Code of June 24, 1931, P.L. 1206, as amended, May 27, 1949, P.L. 1955, 53 PS § 57303, which authorizes the township to lay the sidewalk and assess the abutting owner for the cost without affording the owner an opportunity to lay his own sidewalk. The court below, in an opinion and order filed March 2, 1961, discharged the rule for judgment, holding this provision of The First Class Township Code unconstitutional and void as a local and special law in violation of art. III, § 7 of the Constitution of Pennsylvania.
1. We shall dispose first of the appellant's contention that the decision of the court en banc holding unconstitutional the questioned provision of The First Class Township Code is unappealable at this time. It is contended that the order entered March 2, 1961, was a final order and that the time for appeal expired ninety days thereafter. However, this order was not final, but interlocutory, since it was merely an order discharging the plaintiff's motion for judgment for want of a sufficient affidavit of defence. Such an order is appealable, if at all, only by virtue of the Act of April 18, 1874, P.L. 64, 12 PS §§ 1097-8. However, while the language of that act specifically authorizes an appeal by the plaintiff upon a decision against his right to judgment for want of a sufficient affidavit of defence whenever such judgment is authorized by any act of assembly or rule of court, the Supreme Court has said that the act applies only to assumpsit actions. Reading Co. v. Willow Development Co., 407 Pa. 469, 189 A.2d 316 (1962). But even if this interlocutory order were appealable and the plaintiff had proceeded without appealing it and eventually lost the case in the lower court, it could have appealed from the final judgment against it and could have questioned this interlocutory order at that time. Bracht v. Connell,
[ 201 Pa. Super. Page 34313]
Pa. 397, 167 A. 304 (1933). Since it finally prevailed in the lower court and is now the appellee, it has the right to urge any valid ground for sustaining the final judgment in its favor. Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955).
In fact, the plaintiff did not appeal from the interlocutory order but filed an amended affidavit setting forth the facts upon which it relied to show waiver. To this defendants filed an affidavit of defence and again a rule for judgment for want of a sufficient affidavit of defence was filed by the plaintiff. This rule was also discharged but, upon rehearing, the previous orders were vacated and on May 3, 1962, the plaintiff's rule for judgment was made absolute in reliance upon the validating acts of December 15, 1959, P.L. 1774, 53 PS § 7444, and July 26, 1961, P.L. 882, 53 PS § 7447. This is a final order, from which this appeal has been taken by the defendants. ...