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SAGER v. BURGESS

November 20, 1972

Louis SAGER and Sarah Sager, his wife,
v.
BURGESS and Borough Council of Pottstown et al.



The opinion of the court was delivered by: WEINER

WEINER, District Judge.

This is an action under the Civil Rights Act (42 U.S.C. § 1983), brought as a class action under Fed.R.Civ.P. 23, for a declaratory judgment which seeks an adjudication to the effect that the Pennsylvania Municipal Claims Act, Act of May 16, 1923, P.L. 207, as amended, 53 P.S. § 7101 et seq. unconstitutionally deprives plaintiffs of property without due process of law which is guaranteed by the Fourteenth Amendment to the United States Constitution. *fn1"

 On May 10, 1971, during the course of a public meeting the Borough Council of Pottstown enacted an Ordinance authorizing the paving of certain streets, including a portion of King Street between Adams Street and Bailey Street, the abutting properties to be assessed with a proportionate share of the cost of the paving.

 On May 15, 1971, notice of said Ordinance was published in a newspaper of general circulation.

 On November 15, 1971, the Borough Engineer certified that the construction and paving of a portion of King Street between Adams Street and Bailey Street was completed.

 On November 17, 1971, the Borough of Pottstown served notice by certified mail to the plaintiffs that according to the provisions of Ordinance No. 1252 and the Acts of the Assembly of the Commonwealth of Pennsylvania made and provided, that the plaintiffs were thereby notified that an assessment of $554.35 was made against the plaintiffs.

 The plaintiffs repeatedly questioned the validity of the assessment and requested an opportunity for a hearing prior to any lien being placed on the property. On May 8, 1972, the Borough Council passed a resolution denying the plaintiffs' request.

 On May 12, 1972, the Borough of Pottstown caused a lien to be filed against the property of the plaintiffs for the amount of the assessment.

 Since the facts are not in dispute and have been stipulated there is presented solely an issue of law.

  The plaintiffs' case is predicated upon their contention that the provisions of the challenged Act which permits a municipality without a hearing to impose a lien upon their property constitutes a denial of due process of law. In support of their position plaintiffs rely on Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), (due process of law prohibits a State from denying, solely because of inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriage); Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972), (the double-bond provision as a prerequisite for appealing a landlord and tenant eviction statute violates that equal protection guaranteed by the Fourteenth Amendment); Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), (Florida and Pennsylvania replevin provisions held constitutionally defective in failing to provide a hearing at a meaningful time); Santiago v. McElroy, 319 F. Supp. 284 (E.D.Pa.1970), (distress sales under distraint procedures of Pennsylvania Landlord and Tenant Act amount to a taking of property without procedural due process insofar as sales do not follow a hearing of some sort before the tenant is deprived of his property).

 At this juncture it would appear appropriate to point out that the Commonwealth of Pennsylvania, and the City of Scranton were permitted to intervene as a party-defendant; Community Legal Services (CLS) and Pennsylvania State Associations of Township Supervisors and Pennsylvania State Association of Boroughs were granted leave to appear as Amicus Curiae. Significantly, the Commonwealth urges this Court to adopt the view proffered by the plaintiffs claiming that the present procedure for enforcing municipal liens in Pennsylvania is unconstitutional.

 A review of the pertinent Acts will be of assistance in our determination of the constitutional issue. The Borough Code, 53 P.S. § 46761, et seq. in relevant part provides:

 
"Boroughs . . . may improve streets, or parts thereof . . . and may assess and collect the whole cost thereof, . . . or any part thereof, from the owners of real estate abutting ...

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