Opinion
June 13, 1963.
September 12, 1963.
Municipal Claims — Sidewalks — Construction of new sidewalks — Township ordinance held invalid as to abutting property owners with sidewalks before new construction — Validity of ordinance as to other property owners.
In this case, involving the collection of assessments by a second class township for the construction of pavements as provided for in an ordinance, in which it appeared that in another case the appellate court had restrained the collection of the assessment against certain property owners, who had sidewalks in front of their properties prior to the construction which were a part of the municipal sidewalk system, on the ground that the ordinance in question, as to them was unconstitutional, but had unequivocally set forth that the ordinance (which contained the usual constitutional saving clause) was valid and assessment could be made against those abutting owners who did not have sidewalks on their properties prior to the new construction; and that the court below entered judgment on the pleadings for defendants, erroneously holding that the order of the appellate court in the other case was binding against all property owners; it was Held that the judgment of the court below should be reversed and that judgment on the pleadings be entered in favor of the township.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 103, Oct. T., 1963, from judgment of Court of Common Pleas of Lycoming County, May T., 1962, No. 973, in case of Old Lycoming Township v. Verus L. Farr et al. Judgment reversed.
Assumpsit.
Plaintiff's motion for judgment on the pleadings denied, and judgment entered on the pleadings for defendants, opinion by GREEVY, J. Plaintiff appealed.
John P. Campana, with him Campana Campana, for appellant. Daniel F. Knittle, with him Greevy Knittle, for appellees.
Argued June 13, 1963.
This appeal grew out of an attempt by Old Lycoming Township, a second class township, the appellant herein, to collect assessments for the construction of pavements as provided for in an ordinance adopted September 5, 1958. The Court of Common Pleas of Lycoming County entered judgment on the pleadings, holding that an order entered by direction of this Court in Hinaman v. Vandergrift, 197 Pa. Super. 140, 177 A.2d 174 (1962) restraining the collection of the assessment against certain property owners on the ground that the ordinance, as to them, was unconstitutional, was binding against all property owners.
The history of this case is set forth in Hinaman v. Vandergrift, supra, and the gist of the problem in this appeal is that the property owners were divided into two classes, those who had constructed sidewalks before the construction and those who did not. The property owners in Hinaman v. Vandergrift, supra, were those who had sidewalks before the construction and we held in that case that this was a reconstruction of an existing facility and that the ordinance, as it applied to these abutting owners, was unconstitutional, illegal and invalid. Hence the order granting injunctive relief restraining the collection of the assessments.
We said, however, at page 145: "The ordinance, as it applies to abutting owners who had sidewalks in front of their property prior to the construction, is unconstitutional, illegal and invalid. However, the ordinance would be valid and the assessment could be made against those abutting owners who did not have sidewalks on their property prior to the new construction."
The defendants in this case consist of those who did not have sidewalks prior to the new construction. This Court recognized in clear and unambiguous language the difference between the two categories of property owners and unequivocally set forth that the ordinance was unconstitutional, illegal and invalid only as against those property owners whose sidewalks had been a part of the municipal sidewalk system. The usual constitutional saving clause is contained in the ordinance. To hold otherwise would create the situation that the existence of a sidewalk before one property would prevent the collection of assessments for the construction of pavements along an entire street.
What we said in Hinaman v. Vandergrift, supra, we said again in Mt. Lebanon Twp. v. Hobbes, 201 Pa. Super. 30, 191 A.2d 855 (1963).
Judgment reversed and it is directed that judgment on the pleadings be entered in favor of the plaintiff, Old Lycoming Township.