Opinion
Argued September 29, 1958.
November 10, 1958.
Municipalities — Second class cities — Pittsburgh — Consolidation of Pittsburgh and Allegheny — Effect on pre-existing ordinances — Possessors of land — Land abutting on public highway — Duty to remove obstruction — Acts of March 7, 1901, P. L. 20 and February 7, 1906, P. L. 7.
In this proceeding by the City of Pittsburgh against The Pennsylvania Railroad to recover the cost of removing dirt, rock and other debris from a portion of Sycamore Street which resulted from a landslide in 1951, and in which it appeared that the city based its right to recover upon an ordinance enacted by the Council of the former City of Allegheny on July 16, 1903 providing "It shall be the duty of the owners and occupiers of any ground abutting upon any of the streets . . . in the City of Allegheny to remove any dirt, mud or rubbish which may slip, slide or fall . . . from their ground . . . upon any part of . . . such street"; that the landslide occurred in a portion of the present City of Pittsburgh which was never a part of the City of Allegheny; that § 9 of the Act of February 7, 1906, P. L. 7 which allowed consolidation of the Cities of Pittsburgh and Allegheny provided ". . . all the ordinances of each of said cities shall be applicable in and to all the territory of the enlarged city until amended or repealed", it was Held that (1) the Ordinance of July 16, 1903 is still in force throughout the present City of Pittsburgh; (2) the power to enact this ordinance was conferred upon the City of Allegheny by the Act of March 7, 1901, P. L. 20, § 3 which granted to second class cities the power "To require the removal of all obstructions from sidewalks, curbstones, gutters, streets and street crossings, at the expense of the owners or occupiers of the ground fronting thereon, . . ."; (3) that the defendant was the owner of the slope of land abutting on said Sycamore Street whence the landslide emanated; and (4) in view of the fact that the defendant had prompt and actual notice of the landslide, of the obstruction and of the city's efforts to remove the debris and had refused to pay any part of the costs of such removal, the city's failure to give the formal notice required by the ordinance to remove the debris, did not relieve the defendant of liability.
Before JONES, C. J., BELL, MUSMANNO, JONES and COHEN, JJ.
Appeal, No. 117, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 1475, in case of City of Pittsburgh v. The Pennsylvania Railroad. Judgment affirmed.
Same case in court below: 14 Pa. D. C.2d 499.
Assumpsit on case stated. Before NIXON, J.
Adjudication entered finding for plaintiff, exceptions to adjudication dismissed and judgment entered. Defendant appealed.
John David Rhodes, with him Pringle, Bredin Martin, for appellant.
H. Stewart Dunn, Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for appellee.
The judgment is affirmed on the thorough and well considered opinion of Judge NIXON for the court below reported in 14 Pa. D. C.2d 499.
Judgment affirmed.