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CITY HARRISBURG v. THEODORE E. LAUKEMANN (02/01/84)

decided: February 1, 1984.

CITY OF HARRISBURG, APPELLANT
v.
THEODORE E. LAUKEMANN, JR., APPELLEE



Appeals from the Orders of the Court of Common Pleas of Dauphin County in case of City of Harrisburg v. Theodore E. Laukemann, Jr., No. 2417 S 1977.

COUNSEL

Michael E. Farr, Fox, Farr & Cunningham, for appellant.

Jonathan M. Curst, with him Kathleen A. Weeks, Skarlatos & Zonarich, for appellee.

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

Author: Doyle

[ 80 Pa. Commw. Page 99]

In this action, the City of Harrisburg appeals from two orders of the Court of Common Pleas of Dauphin County, one denying the City's motion for summary judgment, the other granting summary judgment in favor of defendant, Theodore E. Laukemann, Jr.

Laukemann is the owner of a narrow parcel of land running approximately 372.9 feet along 18th Street in

[ 80 Pa. Commw. Page 100]

    the City of Harrisburg.*fn1 In November of 1971, the City began construction of curbs and sidewalks and repaved the cartway along 18th Street. Laukemann was assessed $13,922.46 according to the "front-foot" method for his pro rata share of the improvements. The assessment remained unpaid and on October 23, 1972, the City filed a municipal claim and lien for the stated amount. On August 2, 1977, in a separate action, the City also filed a Praecipe for Writ of Summons in Assumpsit against Laukemann on the municipal claim. On September 8, 1977, the City caused a Writ of Scire Facias against the property to be issued. Laukemann filed an Affidavit of Defense to the Writ. Following the filing of briefs and oral argument, the court of common pleas, on July 9, 1980, filed a Memorandum and Order entering judgment in the City's favor for want of a sufficient affidavit of defense. Laukemann took no appeal from the order and the judgment became final.

On July 22, 1980, the City filed a Complaint in Assumpsit against Laukemann seeking an in personam judgment on the unpaid municipal claim. The City moved for summary judgment alleging that defenses raised in Laukemann's Answer were barred by the finality of the Scire Facias in rem judgment. On February 4, 1981, the court of common pleas denied the City's motion, reasoning, in an opinion by Judge Lipsitt,*fn2 that prosecution of the in rem action to final judgment constituted a binding election of remedy by the City. An appeal by the City was taken to this Court. On September 4, 1981, the court of common

[ 80 Pa. Commw. Page 101]

    pleas, in accordance with its February 4, 1981, opinion, granted Laukemann's motion for summary judgment and directed judgment in his favor. The City appealed this order also to this Court and we consolidated the City's two appeals.

This case presents issues of first impression to this Court. The City has clear statutory authority to proceed in assumpsit for the collection of unpaid municipal claims. Section 4601 of the ...


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