Borough of Baden v. Koodrich

KLEIN, J., We have before us for consideration three petitions filed by Michael Koodrich and Elizabeth Koodrich, Andrew Katrinecz and Jennie Katrinecz, and Russel B. Gibbons and Eileen Gibbons, respectively, asking the court to issue a rule to show cause why municipal liens filed at the above stated numbers and term should not be (1) stricken from the record, or (2) why the “municipal lien” should not be “opened.” Depositions of sundry witnesses were taken on November 12, 1969. A praecipe to have these matters placed on the argument list was filed on November 5, 1971. Argument was heard on January 17, 1972. The essential facts are as follows; The municipal claims for paving and curbing along Camilla Street in the Borough of Baden were filed on April 26, 1968. The work for which the claims were filed was certified as completed on October 23, 1967. The work was completed under and pursuant to ordi [498] nance no. 593 enacted by the Town Council of the Borough of Baden in Beaver County. The sole basis for the petition to have the “lien” stricken is the failure to file same within six months following completion of the work. The court is given to understand that the petition to strike has been abandoned. There is no question but that such claim must be abandoned: Act of September 23, 1959, P.L. 955, as amended, 53 PS §7432. Further, it is clear that the petition to open “municipal claim” is premature. The mere filing of a municipal claim is not an action for its recovery; defendants were not required to answer or do anything concerning it, and it did not invoke the jurisdiction of the court to enter any judgment or decree: 12 Standard Pa. Prac. 292; Philadelphia v. DeArmond, 63 Pa. Superior Ct. 436. The rule must be discharged. In the event that the Borough of Baden chooses to sue upon the claim by writ of scire facias, defendants will have ample opportunity to file an affidavit of defense: Act of May 16, 1923, P. L. 207, sec. 17, 53 PS §7185. We are also constrained to point out that said act also provides that defendants may file and serve a notice upon the claimant or counsel of record to issue a scire facias under penalty of having claim stricken unless timely issued: 53 PS §7184. ORDER Now, March 24, 1972 , the rule heretofore issued requiring the Borough of Baden to show cause why the municipal liens filed against the properties of the petitioners in the Borough of Baden should not (1) be opened, and (2) stricken from the record is discharged; costs to be paid by petitioners.