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BOROUGH FAIRVIEW v. PROPERTY LOCATED AT TAX INDEX NO. 48-67-4 ETC. JOSEPH R. ARENDASH AND MARIE S. ARENDASH (12/29/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 29, 1982.

THE BOROUGH OF FAIRVIEW
v.
PROPERTY LOCATED AT TAX INDEX NO. 48-67-4 ETC. JOSEPH R. ARENDASH AND MARIE S. ARENDASH, HIS WIFE, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Erie County in the case of The Borough of Fairview v. Property located at Tax Index No. 48-67-4 and Joseph J. Arendash and Marie S. Arendash, his wife, recorded in Fairview Borough Municipal Lien Docket No. FLD-A-249, No. 70-A 1981.

COUNSEL

Robert D. Hain, for appellants.

Christine Hall McClure, McClure, Dart, Miller, Kelleher & White, for appellee.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 70 Pa. Commw. Page 637]

This is an appeal by Joseph and Marie Arendash (Appellants) from an order of the Court of Common Pleas of Erie County overruling an Affidavit of Defense to a Writ of Scire Facias Sur Municipal Lien.*fn1

The relevant facts in this case are brief. On April 11, 1979, the Fairview Borough Council passed an ordinance which provided for the installation of storm sewers and the grading, curbing and paving of certain streets, including Wellman Drive. The Arendash property, which is located in Fairview Township, outside the Borough boundary line, fronts on Wellman Drive. The improvements were completed and the

[ 70 Pa. Commw. Page 638]

Arendash property was assessed by the front foot method a total of $12,837.65 as its share of the improvements. No money was paid and the Borough proceeded to enforce its assessment through the writ of scire facias sur municipal lien. Appellants' defense to the writ avers that the land is not benefitted by the improvements and that the Borough is without authority to assess property which lies entirely outside its boundaries.

Section 1773 of the Borough Code (Code), Act of February 1, 1966, P.L. (1965) , as amended, 53 P.S. § 46773 provides:

Whenever any street, more than one-half the width of which is within the limits of any borough, shall divide such borough from any other municipality or township, such street may be improved by the borough within which the greater width is located, in the same manner as if such street were entirely located within the limits of said borough. The property abutting on the side of such street, which is located outside the limits of the borough making such improvements, shall, for a depth of one hundred and fifty feet, plus one-half the width of said street, from its center line, be assessed for any and all municipal improvements to or on the said street in the same manner as such property would be assessed under the laws of the Commonwealth if it were entirely located within the limits of such borough.

Section 1774 of the Code similarly provides for the assessment of property outside the borough which abuts streets wholly within the borough. 53 P.S. § 46774.

It is axiomatic that a property must be benefitted in order to sustain an assessment for improvements, but benefit to abutting property is presumed in the

[ 70 Pa. Commw. Page 639]

    improvement of a street and the property owner has the burden to rebut the presumption. Palmer Township Municipal Sewer Authority v. Witty, 479 Pa. 240, 388 A.2d 306 (1978); Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964); Exeter Township Authority v. Eways, 36 Pa. Commonwealth Ct. 530, 388 A.2d 1131 (1978); Township of Harborcreek v. Erie Drive-In Theatre Corporation, 27 Pa. Commonwealth Ct. 294, 367 A.2d 348 (1976). The record in this case shows no pleading of facts by Appellants to rebut the presumption of benefit from the improvements. The record shows merely the bald allegations in argument that the property is not benefitted and that the Borough lacks authority to assess beyond its boundaries.*fn2 This does not rebut the presumption that the property is benefitted*fn3 and we decline to remand for the development of evidence as to matters not pleaded in the first instance.

Order

Now, December 29, 1982, the order of the Court of Common Pleas of Erie County overruling the Affidavit of Defense to the Writ of Scire Facis Sur Municipal Lien in the above referenced matter is hereby affirmed.

Disposition

Affirmed.


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