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PACE MOTELS v. TOWNSHIP LOYALSOCK (12/07/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 7, 1979.

PACE MOTELS, INC. AND FAXON CONSTRUCTION CO., APPELLANTS
v.
TOWNSHIP OF LOYALSOCK, APPELLEE

Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Pace Motels, Inc. and Faxon Construction Co. v. Township of Lycoming, No. 77-0497.

COUNSEL

Norman M. Lubin, with him Casale & Bonner, for appellants.

Lester L. Greevy, with him Greevy, Greevy & Greevy, for appellee.

Richard H. Wix, Bernadette Barattini, and Wix, Wenger & Weidner, for amicus curiae, Pennsylvania State Association of Township Supervisors.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 47 Pa. Commw. Page 561]

Pace Motels, Inc., and Faxon Construction Co. (petitioners) appeal an order of the Court of Common Pleas of Lycoming County, granting a judgment n.o.v.

[ 47 Pa. Commw. Page 562]

    in favor of the Township of Loyalsock (Loyalsock). We reverse.

Petitioners appealed assessments levied by Loyalsock for the cost of a sidewalk constructed on petitioners' property. The assessments were levied pursuant to Section 1402(b) of The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. ยง 66402(b), which provides, in pertinent part:

Whenever any sidewalks or curbs are constructed by the supervisors pursuant to such ordinance, the expense of the construction of such sidewalks or curbs shall be paid by the abutting property owners in proportion to their frontage, but in no such instance shall any abutting property owner be liable for the construction of such sidewalk in an amount greater than ten percent . . . of the assessed valuation of the abutting property owned by him.

Petitioners alleged that the assessment was invalid because their property was not specially benefited by the construction. Loyalsock moved for judgment on the pleadings, claiming that a special benefit was not required under the statute. The lower court, holding that a special benefit was necessary, denied Loyalsock's motion, and the case went to trial. The jury found that petitioners' property was not specially benefited and returned a verdict in favor of petitioners.

Loyalsock subsequently asked the court to reconsider its earlier ruling and moved for judgment n.o.v. Upon reconsideration by the court, this judgment n.o.v. was granted on the ground that a special benefit was not expressly required by the statute. Petitioners' appeal to this court followed.

It is a well-settled rule of law that, in order for a local assessment to be imposed upon a property owner, a special benefit must be conferred upon the property.

[ 47 Pa. Commw. Page 563]

    an equitable distribution of the special benefit to the property, they contemplated the need for a special benefit to the property in order to sustain the assessment. Harrisburg v. McPherran, 14 Pa. Superior Ct. 473 (1900).*fn2 Thus, since the jury found, on substantial evidence, that petitioners' property was not specially benefited by the sidewalk, as required by both the Constitution and Section 1402(b), we find that the assessment is invalid and that the judgment n.o.v. was improper.*fn3

Loyalsock argues, however, that a special benefit is not required because Section 1402(b) was passed pursuant to the police power and not the taxing power.*fn4

[ 47 Pa. Commw. Page 565]

We disagree. The United States Supreme Court, after an exhausive review of the authorities, concluded that "the assessment of the abutting property for the cost and expense . . . [is] an exercise of the power of taxation." Village of Norwood v. Baker, supra at 277. Likewise, our Supreme Court, in Hammett v. Philadelphia, supra, reasoned: "[T]he power of assessing the cost of local improvements upon the properties benefited . . . is a species of taxation. . . ." 65 Pa. at 150. See also Southwest Delaware County Municipal Authority v. Aston Township, 413 Pa. 526, 198 A.2d 867 (1964); Philadelphia v. United States Housing Corp., 280 Pa. 417, 124 A. 669 (1924); Franklin v. Hancock, 204 Pa. 110, 53 A. 644 (1902); Meadville City v. Odd Fellows' Home, 128 Pa. Superior Ct. 180, 193 A. 662 (1937).

Loyalsock also argues that, on policy grounds, a special benefit should not be required because it would discourage public improvements of this type. Again we disagree, for it is desirable, on policy grounds, to require municipal authorities to exercise care and caution before randomly embarking on curbing and sidewalk improvements. Moreover, we cannot say that the effect envisioned by Loyalsock outweighs the policy of the protection of private property, which underlies the constitutional requirement of a special benefit. Village of Norwood v. Baker, supra; Hammett v. Philadelphia, supra. Nor can we say that public improvement projects of this nature have in fact been discouraged

[ 47 Pa. Commw. Page 566]

    by this long-standing requirement of a special benefit.

Order reversed and case remanded.

Order

And Now, this 7th day of December, 1979, the order of the Court of Common Pleas of Lycoming County, dated July 27, 1978, granting judgment n.o.v., is hereby reversed, and the above captioned case is remanded to the Court of Common Pleas of Lycoming County for entry of judgment in accordance with the jury verdict.

Disposition

Reversed and remanded.


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