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MCCARTHY v. TOWNSHIP MCCANDLESS (02/27/73)

decided: February 27, 1973.

MCCARTHY, ET AL.
v.
TOWNSHIP OF MCCANDLESS



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Richard A. McCarthy and Lenore McCarthy, his wife; Andrew P. Tiglio and Angeline Tiglio, his wife; Nicholas P. Mangieri and Josephine M. Mangieri, his wife; Theodore J. Beitner and Charlotte G. Beitner, his wife; Anthony J. Furlann; W. R. Corsello and Doris D. Corsello, his wife; Oliver A. Smith; Robert T. Randig and Margaret M. Randig, his wife; Donald J. Ramsey and Vivian V. Ramsey, his wife v. The Township of McCandless, No. 1974 January Term, 1970, in Equity.

COUNSEL

James W. Dunn, Jr., for appellant.

John A. Robb, with him Royston, Robb, Leonard, Edgecombe, Miller & Urbanik, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Dissenting Opinion by Judge Kramer. Judge Blatt joins in this Opinion.

Author: Mencer

[ 7 Pa. Commw. Page 613]

On November 27, 1967, the Board of Commissioners (hereinafter Board) of the Township of McCandless (hereinafter Township), Allegheny County, passed Ordinance No. 485 which authorized the grading, paving, curbing, and drainage of Belvedere Road and portions of Center Oak Drive and Albemarle Road (now collectively known as Center Oak Drive). Section 2 of that ordinance provided: "Upon completion of the said improvement, the total costs and expenses thereof shall be determined, and two-thirds of the said costs and expenses shall be assessed by Township Ordinance against the owners of real estate abutting thereon by an assessment based on the front foot, and collected in accordance with the assessing Ordinance." The Township assumed one-third of the total cost for street intersections and nonassessable properties.

When the work was completed, the Board, by Ordinance No. 530, enacted July 28, 1969, assessed the abutting property owners for two-thirds of the cost and expenses of the installation of the roadway.

Appellees, abutting property owners, then instituted an action against the Township by a complaint in equity filed December 5, 1969, seeking to have Ordinance No. 485 declared void (hereinafter the first case). The roads were alleged to be public roads or highways dedicated to the Township and accepted by it in 1948. This acceptance was confirmed by order of the Court of Quarter Sessions of Allegheny County dated June 17, 1948.

In its answer filed March 30, 1970, the Township alleged that the roads had never been paved because they were previously surfaced only with red dog, cinders, and boney, and that in all other aspects the roads

[ 7 Pa. Commw. Page 614]

    had never been improved. Therefore, the Township asserted, the improvements constituted an original paving for which the abutting property owners could be assessed under Section 2060 of the First Class Township Code, Act of June 24, 1931, P.L. 1206, § 2060, as amended, 53 P.S. § 57060.

After the case was tried on December 9, 1970, the chancellor, in his adjudication dated December 29, 1970, concluded that at the time the Township accepted the roads in 1948 it adopted the roads as they were then constructed as permanent installations. Therefore, the improvement authorized by Ordinance No. 485 was not a new street for which abutting property owners could be assessed. Since municipalities are liable for all repairs and maintenance on improved streets, Erie's Appeal, 305 Pa. 134, 157 A. 476 (1931), the chancellor issued a decree "that Section 2 of Ordinance 485 of 1967 of the Township of McCandless is void. The township and its officers are enjoined and restrained from filing or enforcing any municipal claims or liens for such improvement against the parties plaintiff herein." Neither were exceptions filed, nor was an appeal taken from this decree.

On February 22, 1971, the Township enacted Ordinance No. 574 assessing abutting property owners the full cost of widening a portion of Center Oak Drive. The ordinance reads in part: "Whereas the Board of Commissioners of the Township of McCandless has caused to be prepared a recalculation of the costs and quantities in accordance with the Court ruling so as to compute the cost of only that portion of the improvement whereby the road was widened, curbed and drained beyond the original road width and a new schedule indicated an assessment of $8.904576 per front foot against the abutting properties."

Appellees filed a petition on April 8, 1971, at the same number and term as in their initial action, asking

[ 7 Pa. Commw. Page 615]

    for a rule to show cause why Ordinance No. 574 should not be declared invalid also (hereinafter the second suit). By order dated June 23, 1971, the lower court made the rule absolute, declaring Ordinance No. 574 null and void and restraining the Township from filing any municipal claims or liens based on that ordinance. The Township filed exceptions to that order, and, after a hearing before the court en banc in December, 1971, the court dismissed the Township's exceptions in an ...


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