Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, Nos. 388, 389, and 390, in case of The City of Philadelphia to the use of Tony DePaul and Son v. Philadelphia Authority for Industrial Development.
Michael A. Levin, with him Robert H. Malis, David S. Malis, Martin B. Pitkow, and Malis, Tolson & Malis, for appellant.
Harry P. Voldow, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 230 Pa. Super. Page 227]
This appeal arises from the lower court's denial of the defendant-appellant's exceptions following a verdict for the plaintiff in an assumpsit action. The trial court, sitting without a jury, found that the appellant was liable for the reconstruction of sidewalks and curbing on Paul and Orthodox Streets in Philadelphia performed by the use plaintiff, Tony DePaul and Sons, pursuant to the general Ordinance, § 11-505 of the Philadelphia Code.*fn1 On review of all the evidence, even cast in the light most favorable to the plaintiff, we find the lower court erred and we, therefore, reverse.
On July 3, 1968, the appellant's predecessor in title, Degnan Chevrolet, received notice from the Department of Streets for the City of Philadelphia that it must, within thirty days, "reconstruct" the concrete sidewalk
[ 230 Pa. Super. Page 228]
and driveway, and "construct" a concrete curb abutting its truck showroom and body shop at Orthodox and Paul Streets. Subsequently, and without doing the reconstruction, Degnan Chevrolet ceased doing business at this address, and conveyed the property to the Philadelphia Authority for Industrial Development.*fn2
In the latter part of 1969, coincidentally with the repaving of Orthodox Street, Tony DePaul and Sons performed the required reconstruction of the sidewalk, curbing and driveways. Thereafter, the City of Philadelphia entered a municipal lien to the use of Tony DePaul and Sons. A municipal claim was then filed against the Authority, and resulted in the trial from which the instant appeal arises.
The dispositive issue in this appeal is whether the sidewalk curbing and driveway needed to be reconstructed solely because of the repaving of Orthodox Street, or whether it was in a sufficient state of disrepair that the Department of Streets did not abuse its discretion in ordering the abutting landowner to do the work. The distinction is crucial since a city cannot assess an abutting landowner for the reconstruction of existing sidewalks or curbing when that reconstruction is necessitated by the repaving of an existing street: City of Philadelphia v. Henry, 161 Pa. 38 (1894); Wistar v. Philadelphia, 80 Pa. 505 (1852); Golden v. City of Philadelphia, 162 Pa. Superior Ct. 247 (1948); Braucher v. Somerset Borough, 58 Pa. Superior Ct. 130 (1914); Philadelphia v. Weaver, 14 Pa. Superior Ct. 293 (1900). See also 25 P.L.E., Municipal Corporations § 366 (1960). On the other hand, there is ample authority that a city may properly regulate and police
[ 230 Pa. Super. Page 229]
the condition of its sidewalks, and require abutting landowners to make repairs when necessary: City of Philadelphia v. Monument Cemetery Co., 147 Pa. Superior Ct. 170 (1892). If the landowner fails to comply with that order, the city may contract for the work to be done and assess the cost to the ...