Black v. Roebuck

17 Pa. Super. 324, 1901 Pa. Super. LEXIS 311

• Court: Superior Court of Pennsylvania
• Decided: July 25, 1901
• Docket: Appeal, No. 195
• Status: Published

Opinion

Opinion by

Orlady, J.,

The controversy in this case is over a fund realized from a sheriff’s sale of certain real estate in the borough of Upland, incumbered with a mortgage owned by the plaintiff and two municipal liens filed against the property by the borough for guttering and paving a sidewalk. The appellant concedes that if the liens are valid, they have priority over the mortgage, but contends that the work was not done in accordance with a general regulation prescribed, and that legal notice had not been given by the borough of its intention to pave. The liens were filed under the provisions of the general borough law of 1851. The ordinance on which the lien against Cromwell is founded authorized the curbing and guttering of all lands fronting on Ninth street between the east side of Main street and the eastern end of Ninth street, and provided that on the landowner’s failure to do the work within thirty days after the date of the ordinance, the borough would, cause the curbing and guttering to be made and would collect from the owner the cost of the work and material in accordance with the act of assembly. Notice of the requirement of the ordinance was personally served on the occupant of the premises and on the two local agents of the owner, who was a nonresident. The notice to pave and gutter was sent to the other owner, by mail to his post-office address. He acknowledged receipt of the bill for the work done by the borough and offered to pay the sum demanded except the twenty percent penalty. The liens were filed against the named record owners of improved property, the reputed owners, or whoever may be the owners.”

The Cromwell lien is a valid one under the authority of Smith v. Kingston Borough, 120 Pa. 357, and the notice in the Rogers case we deem sufficient. If a nonresident owner 'does in fact receive the notices at his home, it is not material whether the occupant of the premises is served with the notice or not. The purpose of serving a notice on an occupant is to have it conveyed through him to the owner.

The ordinances define and prescribe the requirements to be observed in order to lien the land for the improvements. In each instance the prescribed method or regulation fixed by the ordinances for doing the work was complied with in. giving the notices to the parties affected by the requirement, and in directing the owners of the property to gutter and pave in conformity with the method prescribed. Notice is knowledge, or information legally equivalent to knowledge, brought home to the party notified in immediate connection with the subject to which the notice relates. It is therefore not the sending-but the receipt of a letter which will constitute notice. There is no presumption of law that a letter mailed has been received. The question is necessarily one of fact and solely for the determination of the jury under all the evidence (McSparrow v. Southern Mutual Ins. Co., 198 Pa. 184), and under the evidence in this case the fact of the notice to Rogers was correctly found.: Folsom v. Cook & Co., 115 Pa. 539: Jenseh v. McCorkell, 154 Pa. 323; Russell v. London Assurance Corp., 1 Pa. Superior Ct. 320 ; Washington Borough v. Smith, 14 Pa. Superior Ct. 590.

The judgment is affirmed.