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WEST MIFFLIN BOROUGH v. O'TOOLE (03/23/71)

decided: March 23, 1971.

WEST MIFFLIN BOROUGH, APPELLANT,
v.
O'TOOLE



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1959, No. 3508, in case of Borough of West Mifflin v. Martin S. O'Toole and Norma J. O'Toole, his wife, owners or reputed owners, or whoever may be owners.

COUNSEL

John A. Metz, Jr., with him Henry G. Beamer, and Richard G. Zeleznik, Borough Solicitor, for appellant.

Helen M. Witt, with her Edward A. Witt, and Cleland, Hurtt and Witt, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Cercone, J., joins in this dissenting opinion.

Author: Per Curiam

[ 218 Pa. Super. Page 147]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Montgomery, J.:

This case involves the vital question of when a municipality can be estopped from liening real property benefited by improvements made by it. I dissent from the action of the majority in affirming the lower court since, in my opinion, this is not a factual situation in which an estoppel can be invoked.

This is an action of Scire Facias sur Municipal Claim by the Borough of West Mifflin (Borough), the appellant, against Martin S. O'Toole and Norma J. O'Toole, his wife, owners or reputed owners, or whoever may be owners of Lot No. 76 in Livingston Manor Plan of Lots No. 12, which is located in West Mifflin Borough, Allegheny County. The claim is for the amount of $300, which was assessed against the O'Toole property for benefits derived from a sewage treatment plant built by the Borough. The assessment not having been paid, a lien therefor was filed against said property on January 23, 1959, on which lien this proceeding is based. Hon. Joseph Weis, Judge (now Judge of the United States District Court for the Western District of Pennsylvania), who tried this case without a jury, concluded that the Borough was estopped from asserting its lien against the O'Tooles and entered judgment in their favor. Hence, the present appeal by the Borough.

[ 218 Pa. Super. Page 148]

Most of the facts were stipulated. However, some testimony was taken in addition; but it adds little in the establishment of the facts. From the record thus made, the ...


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