Appeal from the Order of the Court of Common Pleas of Bradford County in the case of The Borough of Towanda to the use of Raymond L. Shaffer and Ellen A. Shaffer, his wife v. Nora C. Brannaka, David G. Kithcart and Elizabeth Kithcart, his wife, Municipal Lien No. 78-3, Civil No. 79-4351.
Fred N. Smith, Duvall, Reuter and Pruyne, for appellant.
Franklin R. Innes, Griffin and Dawsey, for appellees.
Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 61 Pa. Commw. Page 623]
In this appeal we address what we perceive to be a case of first impression involving the intricacies of the law of municipal claims in Pennsylvania.
Factually, it appears that in 1977, Nora C. Brannaka (Appellant) was the owner of a tract of real estate in the Borough of Towanda (Borough), Bradford County. A double house and other out-buildings were located on the premises. Appellant resided in one half of the dwelling. On February 16, 1977, Appellant entered into an agreement of sale with David and Elizabeth Kithcart (Kithcarts) by the terms of which she agreed to convey the real estate to Kithcarts when they paid the purchase price of $20,000 in monthly installments of $217.50 each less an initial down-payment. Soon after that agreement was executed and recorded, the dwelling was destroyed by fire. In due course, an inspection of the property was conducted by the Borough's Building Code Enforcement Officer
[ 61 Pa. Commw. Page 624]
and the Borough Manager. These gentlemen found the property to be in a "hazardous condition" and the Borough Manager so informed the Mayor. A written notice was then sent by the Mayor to the Appellant and to Kithcarts by certified mail, return receipt requested. This notice was sent pursuant to the provisions of Section 67-4 of the Borough's ordinance which state that when it has been determined that a structure is in a dangerous condition, the Mayor shall:
cause written notice to be served . . . upon the owner or occupier of such structure. Such notice shall require the owner or occupier of such structure to commence the repair or removal of such structure within fifteen (15) days of such notice and to complete such repair or removal within sixty (60) days thereof. (Emphasis added.)
That ordinance was adopted pursuant to the authority set forth in Section 1202(5) of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(5), which provides that boroughs shall have the power:
to prohibit and remove any dangerous structure on public or private grounds, or to require the removal of any such nuisance or dangerous structure by the owner or occupier of such grounds, in default of which the borough may cause the same to be done, and collect the cost thereof, together with a penalty of ten per cent of such cost, in the manner provided by law for the collection of municipal claims, or by action of assumpsit, or may seek relief by bill in equity. (Emphasis added.)
When nothing was done on the property pursuant to the notice, the Borough undertook to rehabilitate it in order that it would no longer be a safety hazard. Shortly ...