City of Philadelphia v. Richards

Opinion, Mb. Justice Mitchell: It is conceded on all hands, that a lien upon a municipal claim for paving, being of purely statutory creation, the claim must aver upon its face all the facts necessary to sustain its validity, and that unless it does so, it maybe summarily struck off by the court upon motion. But it has never been held that the claim itself must disclose the evidence by which the facts are to be proved. The authority to do the work claimed for may be averred in general terms, though the plaintiff will be required at the trial to prove the specific authority conferred. It was held in Delaney v. Gault, 30 Pa. 67, that it was not necessary to set out the statutes authorizing the lien, although that case arose under a local act relating to the District of Spring Garden of which the court probably was not bound to take judicial notice. No decision has been found which requires the claim to set out the specific ordinances under which the work was done. It is not the general practice to do so, and in regard to water pipe and other matters in which the work is done and the claim filed by the city itself, it is never done. Since the introduction of the modern system of paying contractors by assignment of the city’s right to sue, and the consequent filing of claims by the city to the use of the contractor who actually does the work, and especially since the tendency of recent ordinances to make preliminary conditions as to the awarding of contracts and the performance of the work, some practitioners have adopted the practice of setting out the provisions of the ordinances, and averring compliance, in order to get the benefit of the act which makes the claim evidence of the facts set out in it. But there is [309] neither statute nor decision which holds that this must he done, and to require it would be of doubtful advantage. The ordinances on the single subject of paving, for example, are numerous, some of them general, relating to advertisement, lowest bidder, notice to owner, etc., and some of them special, and limited to particular streets or certain kinds of pavement, etc. A claim may depend on half a dozen or more ordinances, and to set them all out on the face of the claim would he cumbersome and inconvenient. It is sufficient if the necessary proof is made at the trial. A careful examination of all the cases in which the provisions of ordinances have been made the basis of decision, shows that they have arisen upon demurrer or trial, after the ordinances had been regularly pleaded or put in evidence. • In the absence of an opinion by tlie learned court below, indicating the grounds of its action, we are compelled to rely largely on the argument of the defendant, to point out the defects for which this claim was struck off. The objections thus made depend wholly on the failure to comply with the requirements of certain ordinances, at least one of which (that of June 7, 1882, Ordinances 1882, p. 158) is of doubtful application to the case at all. But whether applicable or not, the ordinances relied on are not on the record, and any defence upon them must he set up by affidavit of defence, by demurrer to pleas as in City v. Hays, 93 Pa. 72, or by objection at the trial, as in Fell v. Philadelphia, 81 Pa. 58, and nearly all the other cases on this point. We have not been shown nor have we discovered any statutory element of validity omitted from these claims, and it is this feature which distinguishes the present ease from Oonnellsville Bor. v. Gilmore, 15 W. N. 343; Gans v. Philadelphia, 102 Pa. 97; and Philadelphia v. Dungan, ante, 52, decided at the present term. In the first the borough act under which the borough obtained its authority to file claims at all, required as a condition precedent, a demand upon the owner to do the work, and his default, neither of which was averred in the claim. Gans v. Philadelphia was a claim filed for benefits assessed against the land on the opening of a street under the act of April 1, 1864, P. L. 206. By that act a notice and bill from the city solicitor to the owner, and a default of pay [310] ment on the latter’s part for thirty days, were conditions precedent to the filing of a lien. The claim averred notice to the “owner or reputed owner,” but the defendant Gans pleaded that he was the registered owner under the act of March 29, 1867, P. L. 600, and that no notice had been given to him. On demurrer it was held that the registered owner was the one meant by the statute, and the notice not having been given to him the claim was bad. Philadelphia v. Dungan, ante, p. 52, was similar to Gans v. Philadelphia. The claim there was for removing a nuisance, and for its validity required, under the act of 1818, a notice to the owner, but as the claim showed that notice was given to the reputed instead of the registered owner, this court held that it was bad. All of these, however, were exceptional cases of statutory requirements which had been omitted. But in regard to paving and to other municipal improvements, the authority of the city of Philadelphia is general and unlimited, both to do the work, and to file claims against property owners for the cost of it; and the restrictions which, in favor of its citizens, the city has put upon its own exercise of its powers, depend upon its ordinances, which, to be available as a defence, must be put upon the record in some regular way as already indicated. Much reliance was -placed by defendants’ counsel at the argument on Connellsville Bor. v. Gilmore, and it was intimated that the action of the court below was based upon that case. If so, it is plain that the learned court in the press of business did not have its attention directed to the vital distinction above pointed out. The second specification of error is the refusal of the court to allow an amendment to the claim by adding an averment of notice to the owner to set the curb, and neglect to do so for thirty days, prior to the doing of the work by the use plaintiff. Such an amendment is ordinarily allowable under the act of April 21,1858, § 9, P. L. 387; but it is not of absolute right in every case. “Such acts as this should be liberally construed, and while amendments are not a matter of right, they should be allowed where it can be done without prejudice to intervening rights: ” Steeeett, J., in Allentown v. Hower, [311] 93 Pa. 336. But they will not be allowed where the object is to give the plaintiff an unfair advantage, as, to shift the burden of proof: Philadelphia v. Sanger, 8 W. N. 151. In the absence of anything on the record to show the ground of the application, or the reasons for refusal, the presumption is that the action of the court was right. The orders striking off the claims are reversed, the claims reinstated, and the records remitted for further proceedings.