Borough of Punxsutawney vs. Perry Wingert.

Municipal liens- -Boroughs- -State Highway Department Date of Completion of improvement--Evidence--Records of State Highway Department Certificate-Act of June 4, 1901, Sec. 10, P. L. 364.

A municipal lien filed more than six months after the actual completion of the improvement is invalid, and uneontradicted testimony as to the actual time of the completion of such improvement will prevail over a record from the State Highway Department indicating a later date. A certified copy of the books of account of the State Highway Department, containing, with other memoranda, a statement of the date of completion of certain highway work, is not a certificate within the meaning of the 10th section of the Act of June 4, 1901, P. L. 364. The inability of a municipaliy to enforce a lien against a property owner should not prejudice its right to proceed in another form of action.

Case stated for determination by the Court. No. 284 August Term, 1914. C. P Jefferson County.

W. M. Gillespie and E. A. Carmalt, for plaintiff.

Jesse C. Long, H. C. Campbell and A. B. Stewart, for defendant

REED, P. J., January 19, 1915. This case has been submitted for determination by the court without the intervention of a jury. Numerous legal exceptions and objections are taken to the proceeding, and it is earnestly contended that each one is fatal to the plaintiff's right to maintain this action. It is practically admitted that the improvement in quesion was made without the passage of an ordinance, prior to the completion of the work, authorizing any portion of it to be made at the expense of the property owners abutting thereon. Ordinance No. 167, passed prior to the making of the improvement, was passed without the necessary petition from the property owners to confer jurisdiction on the council to pass the same, and therefore was without legal effect. Ordinance No. 174 was not passed until more than six months after the completion of the improvement. If it be conceded that council could pass an ordinance after the improvement had been made so as to charge a portion of the cost of the improvement upon the property owners, it is earnestly contended, and with much reason, that such ordinance could not have a retroactive effect to the extent of extending the time for filing a lien after the completion of the work, beyond that fixed by the Act of Assembly. It is also pointed out that the lien filed shows on its face that it was filed under the void ordinance, No. 167, and not under ordinance No. 174, which was passed in September, 1914, with a view of charging the property owners with a portion of the costs of an improvement that had been completed in November, 1913. It is further contended that the uncontradicted evidence shows that the defendant's property is rural and not urban, and therefore that the method of assessment against it was erroneous and cannot be sustained. These and many other objections are made to this proceeding, and while all the objections interposed merit serious consideration, it is not deemed either necessary or advisable for the court to consider and pass upon more than one at this time. In our view there is one fatal objection to the lien filed in this case, and if there is any merit in the plaintiff's claim which can be presented in some other form of proceeding the court is not disposed to pass upon it in this proceeding, since anything that might be said here on these collateral questions could only be advisory and without legal effect.

It appears from the uncontradicted evidence that the improvement was completed in November, 1913, when the last work upon it was done, and this lien was not filed until June 20, 1914, or more than six months after the work was completed. The plaintiff offered in evidence a cer

Borough of Punxsutawney vs. Wingert.

tified copy of the State Highway Department's ledger account of the work, costs, etc., of this improvement. In this certified copy there appears. inter alia, the following statement: "Work to be completed July 1, 1913": "Work completed December 22, 1913." Counsel for the plaintiff rely on this certified copy of the State Highway Department's ledger account as fixing the date when this improvement was completed, and contend that this certificate is conclusive on that question. The date stated in this account, December 22, 1913, as the date when the improvement was completed, is at variance with all the testimony on the question of when the improvement was in fact completed, namely, November 18, 1913. Mr. H. W. Claybaugh, called by the defendant, testified that he was the State Engineer in charge of the improvement, and that it was completed about the middle of November, 1913. On cross-examination he was asked this question: "How do you know that the work was completed in the middle of November, 1913, instead of the 22nd of December, 1913, as stated upon that certificate?" Answer: "That certificate does not state, does it, that this road was completed on December 22nd? That was the date when I made out my final estimate, and not the date when it was finally completed." This certificate does not purport to be a certificate of the time of the completion of the improvement. It does not so appear on its face and, according to Mr. Claybaugh's testimony, was not so intended in fact. It does not come within the purview of Section 10 of the Act of June 4, 1901, P. L. 364, wherein it is provided: "The certificate of the surveyor, engineer, or other officer supervising the improvement filed in the proper office being conclusive of the time of completion thereof, but he being personally liable to any one injured by any false statement therein." The Act of 1901 refers to municipal improvements wherein the municipality and the property owner alone are concerned. It has no application to certified copies made by the State Highway Department of its books of account. But if it had, this certified copy of its book account was not "filed in the proper office," nor is it made by any one authorized by the Act of Assembly to make a certificate of the time of the completion of the improvement. In fact, it was never filed in any office, and never was intended to be filed as a certificate of completion of the improvement, as provided for in Section 10 of the Act of 1901. It is not a certificate made by the "surveyor, engineer, or other officer supervising the improvement," but purports to be made by an auditor of the State Highway Department, who in the discharge of his ordinary duties would have no personal knowledge of when the improvement was made. It is nothing more or less than a certified copy of a book account by one having no personal knowledge of the items composing that account, in which the statement inci-dentally appears that the work on this improvement was completed December 22, 1913, along with several pages of other memoranda concerning the improvement. Aside from this so-called certificate there is no question about when this improvement was in fact completed. Mr. Shearer, called by the defendant, testified that the brick work was finished November 4, 1913, and the street opened for traffic before the middle of the month. He states that the last day's work on it was November 18, 1913. Mr. McClelland, called by the defendant, testified that he inspected the improvement for the State Highway Department, and that the work was completed and the equipment and everything taken off by the 18th of November, 1913. There was no testimony offered in contradiction of the testimony offered by the defendant that the improvement was completed and the street opened to traffic more than six months prior to the filing of this lien. And it is therefore found as a fact that the liens in this case, and in case No. 283. August Term, 1914, The Borough of Punxsutawney vs. Mary A. Nordstrom, were filed more than six months after the im

Borough of Punxsutawney vs. Wingert.

provement was completed, and for this reason alone the actions thereon cannot be maintained.

And now, January 19th, 1915, on the sole ground that the lien in this case was not filed within six months after the completion of the improvement, judgment is directed to be entered in favor of the defendant and against the plaintiff for costs, but without prejudice to the plaintiff's right to assert any claim it may have against the defendant in any other form of proceeding authorized by law.

Borough of Punxsutawney vs. Dumont.

Summary conviction-Ordinance-- -Burgess Allowance of appeal from summary proceedings before burgess---Cause shown-Sufficiency of petition -Distinction between appeal and certiorari.

An appeal from a summary conviction before a burgess, under a borough ordinance, will not be allowed on a petition containing general averments which raise questions of law that might be heard on a writ of certiorari. An appeal should not be allowed for alleged irregularities in the record. If the only cause shown is the desire of the petitioner for a rehearing on the merits, the application for an appeal will be refused.

Rule for leave to appeal from summary conviction. No. 65 November Sessions, 1914. Q. S. Jefferson County.

W. M. Fairman, for rule.

W. M. Gillespie, contra.

REED, P. J., March 3, 1915. This is a rule to show why an appeal should not be allowed from the conviction and sentence of the defendant in a summary conviction proceeding had before the Chief Burgess of the Borough of Punxsutawney. The defendant was charged with having interfered with an officer in the discharge of his duties, etc., contrary to Section 8 of Ordinance No. 87 of said borough. The Burgess on hearing adjudged the defendant guilty of what was tantamount to a breach of the peace in said borough in interfering with C. E. Palmer, Chief of Police of said Borough, in the proper discharge of his official duties, and in attempting to obstruct him in such discharge, contrary to Section 8 of Ordinance No. 87 of the ordinances of said borough.

The Act of May 19, 1887, P. L. 133, confers upon the Burgess of a borough the criminal powers, jurisdiction and authority of a justice of the peace in the enforcement of all ordinances of the borough and the collection of fines and penalties imposed under the same. The Act of June 4, 1897, P. L. 121, provides that the policemen and constables of the several boroughs of this Commonwealth, in addition to the powers already conferred upon them, may without warrant and upon view arrest and commit for hearing any and all persons guilty of a breach of the peace, etc., or who may be engaged in violating any ordinance of the borough for the violation of which a fine or penalty is imposed; and also that all actions, prosecutions, complaints and proceedings for the violation of borough ordinances and for the collection of fines and penalties imposed thereby may be commenced by warrant or by summons at the discretion of the Chief Burgess, etc.

There is no authority in the court on the present application to deal with the case as though it had originated on a certiorari to the Burgess. The procedure of the Burgess may not have conformed to all the requirements of a summary conviction proceeding, and the court might have been

Borough of Punxsutawney vs. Dumont.

compelled on a review of this record on writ of certiorari to have reversed the judgment entered by the Burgess. But it does not follow that an appeal should be allowed because of such irregularities in the record. On this application the court is confined to an examination of the petition presented in determining whether cause for an appeal has been shown or not. Com. vs. Menjou, 174 Pa., 25. It has been repeatedly decided that an appeal should not be allowed save for cause shown: McGuire vs. Shenandoah, 109 Pa., 613; Com. vs. Eichenberg, 140 Pa., 158; Thompson vs. Preston, 5 Pa. Sup. Ct., 154.

The petition in this case sets forth three reasons why the appeal asked for should be allowed, viz:

1. That the allegations contained in the complaint upon which the proceeding is based "were not and are not true."

2. That the petitioner "has a just, full and legal defense as to the law and the facts in the above stated case."

3. That the petitioner "was not heard in her own behalf at the trial above set forth."

It requires no more than the statement of these assigned reasons for leave to appeal to demonstrate that they fail utterly to state any cause whatsoever why an appeal should be allowed. In Thompson vs. Preston, supra, Judge Wickham, in delivering the opinion of the court, says: "Ordinarily an appeal should not be permitted if the party desiring it has had an opportunity to fully and fairly present his case before the magistrate, unless a doubtful legal question is involved or there is something to indicate oppression, corruption or disregard of law on the part of the magistrate, or after-discovered evidence which would justify a new trial. "The two first reasons set forth in the petition at bar in very general terms ask for an appeal in order that the case may be reheard before the court on its merits. If no other cause was required to be shown than that the party wanted another trial on the merits it would be a work of supererogation to require the appellant to get the permission of the court, or a judge thereof, for leave to appeal. The third reason, that the petitioner 'was not heard in her own behalf at the trial above set forth" might warrant an allowance if it appeared that some one other than the defendant herself was responsible for her failure to be "heard in her own behalf.” The petition as to this is discreetly silent, and of course this renders the reason wholly ineffective for the purpose of furnishing a ground for an appeal. This failure in the petition no doubt results from the facts set forth in the answer to this rule, that the failure of the petitioner to be heard in her own behalf was due wholly to her refusal to participate ir the trial, although present, or to have the case continued to such time as she might be fully prepared to be heard. Inasmuch as no sufficient reason is set forth in the petition to warrant the allowance of an appeal, the court is constrained to refuse the same.

And now, March 3rd, 1915, rule discharged, and the prayer of the petitioner for leave to appeal from the judgment of the Burgess is refused.

Skelps vs. Pennsylvania Railroad Company.

egligence Crossing railroad track--Conflicting testimony-Case for jury.

In an action for personal injuries by a prospective passenger by reason of being run over by a train while crossing a track, the plaintiff's evidence was to the effect that he looked and listened and did not see or hear any signal or see a head light. The testimony of the defendant was to the effect that the head light was on and the whistle and bell signals given. Held, that the case was for the jury.

In re motion-ex porte defendant-for judgment in its favor, as provided by Act 20 April, 1911, P. I. 70. No. 439 April Term, 1913 C. P. Allegheny County.

H. Fred Mercer, for plaintiff.

Patterson, Crawford, Miller & Arensberg, for defendant.

BROWN, J., December 21, 1914.-This action was brought by Joseph Skelps to recover damages for personal injuries received by him at Huston Kun Station on the line of the Pennsylvania Railroad.

At the trial defendant's counsel presented a request for binding instructions-which was refused. The jury, failing to agree, was discharged. Defendant, by its counsel, now moves the court for judgment in its favor upon the whole record, as provided by the Act of April 20, 1911, P. L. 70.

HISTORY OF THE CASE.

1. Story of plaintiff: About nine o'clock in the evening of May 21, 1912, at Huston Run Station on the line of the Pennsylvania Railroad Company, plaintiff was injured by a train upon which he was about to take passage. To reach the point-at which he was to take passage-he had to pass from the station house on one side of the double-track railway to the platform on the other side. As he passed over he looked and listened and did not see the approaching train; nor see a headlight, nor hear a bell or whistle; the night was dark and foggy--so foggy that one could see but a few feet ahead.

2. Story of defendant: The night was dark-but not foggy; the headlight was on, and the whistle and bell signals of the approaching train given; the headlight-in the driection the train was moving as it approached the station-was visible more than one thousand feet away.

3. Plaintiff's contention was, that his injuries were due solely to detendant's failure to signal the approach of the train by headlight or bell and whistle.

4. Defendant's contention was, that it had duly signaled the coming of the train; that plaintiff's injuries resulted solely from his carelessness; that even if the company had been negligent, so had plaintiff.

5. The contention of both parties was supported by testimony--positive and negative: Daubert vs. Delaware, Lackawanna & Western Railroad Co.. 199 Pa., 345; Swarz vs. D., L. & W. R. R. Co., 218 Pa., 187.

LAW OF THE CASE.

The issue thus raised was purely one of fact for the jury-for the credibility of testimony, all oral, must be weighed by the jury: Reel vs. lder. 62 Pa., 308: Duffy vs. York Haven Water & Power Co., 233 Pa., at p. 110. Credibility is the touchstone of testimony in the measure of its weight. The weight of testimony is that which the jury determines after considering the various elements necessarily entering into its make-up; such as. the manner and appearance of the witnesses on the stand, their as and interest in the subject matter of the controversy; the consistency