Opinion
March 7, 1933.
April 17, 1933.
Practice, C.P. — Statement of claim — Affidavit of defense — Sufficiency — Rule for judgment for want of a sufficient affidavit of defense — Municipal lien — Sewer — Cost of — Assessments.
An affidavit of defense in a proceeding by a borough on a scire facias sur municipal lien for the cost of constructing a sewer is sufficient to prevent a summary judgment where the defendants aver that the cost of a main sewer was included in the assessment without lawful authority, that other improper items, mentioning them, were included, that the assessment was unequal because of the omission of assessable properties specifically named, and that the cost of a sewer in another water shed was included.
Appeal No. 40, February T., 1933, by plaintiff, from decree of C.P., Luzerne County, March T., 1931, No. 1370, in the case of Borough of Freeland v. Casper Poltrok and Rica Poltrok, his wife.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Rule for judgment for want of a sufficient affidavit of defense in proceeding on a scire facias sur municipal lien. Before FINE, J.
The facts are stated in the opinion of the Superior Court.
The court discharged the rule. Plaintiff appealed.
Error assigned, among others, was the order of the court.
M.S. DePierro, Borough Solicitor, and with him C.A. Falvello, for appellant.
Adrian H. Jones, for appellees.
Argued March 7, 1933.
This appeal arises out of a scire facias on a municipal lien arising out of the construction of a sewer. There was an affidavit of defense filed, followed by a motion for judgment for want of a sufficient affidavit of defense. The court below refused to enter judgment deeming the matters involved in the defense were sufficiently pleaded and should be submitted to a jury. The defendant, inter alia, alleged that the cost of a main sewer was included in the assessment without lawful authority, that other improper items, mentioning them, were included, that the assessment was unequal because of the omission of assessable properties specifically named, and that the cost of a sewer in another water shed was included. These facts, in the present discussion, must be taken as verity. Lackawanna Trust Co. v. Carlucci, 264 Pa. 226, 107 A. 693. As has been repeatedly stated, it is only in cases where it is clear that the court erred in refusing judgment that we disturb the order appealed from. We all agree that in this case the facts should be developed at a trial.
The order of the court is affirmed.