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MORRIS COUDRIET AND MARY J. COUDRIET v. TOWNSHIP BENZINGER (11/29/83)

decided: November 29, 1983.

MORRIS COUDRIET AND MARY J. COUDRIET, APPELLANTS
v.
TOWNSHIP OF BENZINGER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Elk County in case of Township of Benzinger v. Morris Coudriet and Mary J. Coudriet, No. 80-1318 and No. 80-127 M.L.D.

COUNSEL

Morris Coudriet, appellant, for himself.

Thomas G. Wagner, for appellee.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 78 Pa. Commw. Page 563]

The appellants, Morris and Mary Coudriet, who represent themselves, appeal from an order of the Court of Common Pleas of the Fifty-Ninth Judicial District, Elk County Branch, dismissing their petition to set aside a writ of execution.

In July, 1980, in response to a petition of abutting landowners, the Township of Benzinger enacted an ordinance providing for the paving of Kallas Road. The appellants, who own property on Kallas Road, did not join in their neighbors' petition and later refused to pay the assessment for the expense of the work. In November, 1980, the township filed against the appellants a municipal claim for $2,550.00 plus interest and a five percent penalty. On December 18, 1980, the township caused a writ of scire facias sur municipal lien to issue against the appellants.

The appellants filed an affidavit of defense to the writ alleging various technical defects in the petition of abutting landowners, mistakes in the procedures of making the assessments and the inclusion of charges

[ 78 Pa. Commw. Page 564]

    for work not authorized by ordinance. The court conducted hearings, after which it granted the township's motion for judgment for want of sufficient affidavit of defense. Exceptions were filed by the appellants and after argument the court issued a memorandum opinion and order dismissing the appellants' exceptions.

The appellants appealed the judgment against them to the Commonwealth Court. The appeal was quashed because the appellants failed to timely file a brief and reproduced record. The judgment against the appellants thus became final and unappealed.

On April 27, 1982, the township filed a praecipe for a writ of execution on the judgment and a writ was issued. The appellants filed a petition to set aside the writ raising the same issues earlier raised in the scire facias proceedings and other defenses, all of which the court of common pleas found to be without merit. The court dismissed the appellants' petition and this appeal follows.

The appellants persist in contending that because of irregularities in the assessment procedure and because of the performance of work not authorized by the ordinance they are not liable for the amount assessed. These issues were decided against the appellants in the scire facias proceedings, which decision became conclusive upon the appellants' failure to perfect their appeal to the Commonwealth Court. Where an answer is filed in a scire facias proceedings and the issues presented by it are tried, the judgment thereon is res judicata to the same extent as the findings and judgment in any other proceeding. Bern Township Authority v. ...


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