Scranton City v. Robertson

Opinion by Rice, P. J., This action of assumpsit was brought to recover the unpaid part of a paving assessment for which no specification of claim had been previously filed and entered as provided in section 21, article 15 of the Act of May 23, 1889, P. L. 277. The learned judge below in a clear and satisfactory opinion, which covers all .the points suggested in the argument of the appellant’s counsel, held that the action would not lie, because the claim had not been registered as above provided. He was of opinion that the question was authoritatively decided in Scranton v. Sturges, 202 Pa. 182, and we see no escape from that conclusion. Speaking of the act of 1889 the Supreme Court said: “ That act by any fair interpretation, bases the right of recovery on a lien filed; scire facias thereon will result in a general judgment by the terms of the act, but a general judgment cannot be obtained on an unregistered claim by [58] the common-law action of assumpsit.” The learned counsel are mistaken in the assumption that Scranton v. Sturges was practically overruled by Franklin v. Hancock, 204 Pa. 110, affirming our judgment in the same case reported in 18 Pa. Superior Ct. 398. The decision in the last cited case was based on a construction of the local act of 1871, which contains no words indicative of a legislative intent to make the previous filing or registration of the claim a condition precedent to bringing an action at law to recover an assessment duly made, not only against the land benefited, but also against the owner. A comparison of that act with section 22, article 15 of the act of 1889, upon the construction of which the earlier case was decided, will show that the two decisions are entirely reconcilable. Scranton v. Sturges was not even mentioned in Franklin v. Hancock, nor was any principle enunciated in the later ease which affects in any way the construction previously given to the act of 1889. It was considered and distinguished in Williamsport v. Hughes, 21 Pa. Superior Ct. 443, but so far as the precise question presented in the case at bar is concerned it is a conclusive and binding authority. Judgment affirmed.