Municipality of Norristown v. JAR Investments, Inc. ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Municipality of Norristown :
:
v. : No. 917 C.D. 2019
: SUBMITTED: March 26, 2020
JAR Investments, Inc., :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ELLEN CEISLER, Judge (P)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 4, 2020
JAR Investments, Inc. (JAR) appeals from an order of the Court of Common
Pleas of Montgomery County (trial court)1 granting judgment in favor of the
Municipality of Norristown (Norristown) for delinquent trash fees relating to JAR’s
two-unit rental property at 271 East Main Street in Norristown (Property).2 After
thorough review, we affirm the trial court’s order.
1
The Honorable Bernard A. Moore, Senior Judge, presided.
2
A separate but similar appeal by JAR Investments, Inc. (JAR) is pending before this Court
regarding another JAR rental property at 249 East Main Street in Norristown. That appeal is
Municipality of Norristown v. JAR Investments, Inc. (Pa. Cmwlth. No. 919 C.D. 2019). By order
dated October 9, 2019, this Court denied JAR’s application to consolidate the two appeals, because
the trial court held separate hearings (although much of the evidence in the first hearing was also
considered as evidence in the second hearing, see Reproduced Record at 207a, 254a), and issued
separate opinions. The two appeals were argued seriately and are being decided
contemporaneously and consistently with each other.
I. Background
Norristown has enacted an ordinance to provide for removal of trash from real
properties in the municipality (the Ordinance),3 through a contract with a designated
trash removal service, currently J.P. Mascaro & Sons. See Reproduced Record
(R.R.) at 28a-34a. Norristown sets the amounts of the trash fees periodically. R.R.
at 93a; see, e.g., R.R. at 35a, 50a-51a, 67a, 88a-91a.
The Ordinance generally applies to all residential properties. However,
certain properties are exempt from the Ordinance. Relevant here, an exemption
applies to any rental property that has more than four rental units and for which
Norristown’s trash removal service is not used. R.R. 32a-33a.
JAR has owned the Property since 1990. The Property has two rental units
and is listed as a duplex on tax records. JAR has never used Norristown’s trash
removal service. Instead, JAR contracts with a private trash removal service, Waste
Management, Inc., for trash removal from all of its rental properties in Norristown,
including the Property. However, JAR never formally sought an exemption from
the Ordinance regarding the Property.
The trash fees appear on property owners’ annual real property tax bills, along
with county and borough taxes. R.R. at 158a, 252a. The Montgomery County Tax
Claim Bureau (Tax Claim Bureau), through Northeast Revenue Service, LLC,
collects delinquent real property taxes. Id. at 151a. However, the Tax Claim Bureau
does not collect delinquent trash fees; those charges are currently collected for
Norristown by Portnoff Law Associates, Ltd. (Portnoff) and were previously
collected by Norristown itself. Id.
3
NORRISTOWN, PA., Admin. Code, ch. 274, art. I (2008).
2
JAR admittedly received bills from Norristown for trash fees relating to the
Property as part of its annual tax bills. R.R. at 252a. From at least 2010 on, however,
JAR did not pay the trash fees.4
As authorized by the statute popularly known as the Municipal Claims and
Tax Liens Act (Lien Act),5 Norristown filed liens against the Property for unpaid
trash fees for the years 2010 through 2016. JAR denies having received notice of
the liens when they were originally filed. Although Norristown offered testimony
concerning its normal practice of sending notices of all liens, it did not produce
copies of any notices sent to JAR contemporaneously with the filings of the liens.
In 2017, the various liens were consolidated at Portnoff’s request by order of
the trial court. In August 2017, Portnoff sent a certified letter notifying JAR of all
of the trash fee delinquencies and the related liens regarding the Property. R.R. at
173a, 177a-79a. Although JAR denies receiving the notice letter, the certified letter
was sent to JAR’s business address in Norristown, and Portnoff received a signed
return receipt evidencing delivery of the letter. Id. at 179a.
4
JAR has been struggling for the past decade with real property tax delinquencies relating
to its rental properties and has been making payments to the Montgomery County Tax Claim
Bureau (Tax Claim Bureau). JAR claims it did not pay delinquent trash fees during that time
because it assumed the delinquent trash fees were included in the delinquent taxes. JAR blames
the Tax Claim Bureau for not affirmatively pointing out that the trash fees were not part of the tax
delinquencies being collected by the Tax Claim Bureau. However, the issues JAR raises on appeal
do not relate to its alleged belief that it was paying the delinquent trash fees along with its
delinquent taxes; rather, JAR’s arguments before this Court focus on the reasons why JAR believes
it is not required to pay Norristown’s trash fees at all.
5
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7455, popularly known as
the Municipal Claims and Tax Liens Law (Lien Act), provides that “all municipal claims which
may be lawfully imposed or assessed on any property in this Commonwealth . . . shall be and they
are hereby declared to be a lien on said property.” Section 3 of the Lien Act, 53 P.S. § 7106(a).
Section 4 provides that the lien “shall exist in favor of, and the claim therefore may be filed against
the property thereby benefited by, the municipality extending the benefit.” 53 P.S. § 7107.
3
In July 2018, the delinquent trash fees remained unpaid, and Portnoff filed a
writ of scire facias (writ)6 in the trial court seeking to reduce them to a judgment.
Id. at 177a, 180a-81a. JAR’s attorney accepted service of the writ. Id. at 181a.
JAR asserted various defenses to the writ. JAR argued the trash fees were
unlawful and excessive because it hired its own trash removal service for its rental
properties and did not use Norristown’s contracted service. JAR also contended it
was entitled to an exemption from the Ordinance because its various rental
properties, although separate, were close to each other and collectively contained
more than four rental units. JAR further claimed that although it received notice of
delinquent taxes on the Property, it did not receive notice of any delinquent trash
fees until the writ was filed in 2018. Finally, JAR argued the liens were defective
and invalid because the lien documents did not contain all of the information
required by the Lien Act.
The trial court held a hearing on the writ in May 2019. Following the hearing,
the trial court entered judgment in favor of Norristown and against JAR, together
with a 10% penalty and interest at the rate of 10% as provided in the Ordinance. See
R.R. at 28a, 68a-69a (authorizing 10% interest); 33a (authorizing 10% penalty).
6
A writ of scire facias (writ) is used to enforce payment of a municipal claim against real
property on which the claim is a lien. Newberry Twp. v. Stambaugh, 848 A.2d 173 (Pa. Cmwlth.
2004) (citing Fox Chapel Sanitary Auth. v. Abbott, 384 A.2d 1012 (Pa. Cmwlth. 1978)). The writ
directs the sheriff to notify the defendant to appear before the court and show cause why the
municipality should not be permitted to enforce its claim. Stambaugh (citing Shapiro v. Ctr. Twp.,
632 A.2d 994 (Pa. Cmwlth. 1993)). The purpose of the writ is to ascertain the sum due on a lien
and give the defendant an opportunity to show why the municipality should not have execution.
Stambaugh (citing Shapiro).
4
In its opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure, Pa.R.A.P. 1925(a) (Tr. Ct. Op.),7 the trial court explained its rejection of
each of JAR’s arguments. Regarding JAR’s private contract for trash removal, the
trial court found no evidence of an agreement by Norristown not to collect trash fees
from JAR. Accordingly, the trial court concluded Norristown was legally entitled
to collect trash fees for the Property regardless of whether JAR used Norristown’s
trash collection service. The trial court also rejected JAR’s claim of an exemption
based on the total number of units in all of its properties, observing “there is no
support for ruling that because triplexes, duplexes or single units are in close
proximity, or ‘clustered’ these properties are exempt.” Tr. Ct. Op. at 4. As to JAR’s
assertion that it received no notice of the delinquent trash fees, the trial court stated
that at the hearing, the evidence included “[e]xhibits showing that delinquency
letters for trash fee[s] for the [Property] were sent,” and further, “a certified mail
7
At the time the trial court issued its opinion, Rule 1925(a) provided, in pertinent part:
(a) Opinion in support of order.
(1) General rule. --Except as otherwise prescribed by this rule, upon receipt
of the notice of appeal, the judge who entered the order giving rise to the notice of
appeal, if the reasons for the order do not already appear of record, shall forthwith
file of record at least a brief opinion of the reasons for the order, or for the rulings
or other errors complained of, or shall specify in writing the place in the record
where such reasons may be found.
Pa. R.A.P. 1925 (former). The current rule, which became effective October 19, 2019, similarly
provides, in pertinent part:
(a) Opinion in support of order.
(1) General rule. Except as otherwise prescribed by this rule, upon receipt
of the notice of appeal, the judge who entered the order giving rise to the notice of
appeal, if the reasons for the order do not already appear of record, shall within the
period set forth in Pa.R.A.P. 1931(a)(1) file of record at least a brief opinion of the
reasons for the order, or for the rulings or other errors complained of, or shall
specify in writing the place in the record where such reasons may be found.
Pa. R.A.P. 1925.
5
receipt for these letters was introduced.” Tr. Ct. Op. at 2. The trial court found
“Norristown has presented credible evidence that these fees have not been paid, and
that proper notices of the delinquencies were sent to JAR.” Id. at 4.
This appeal by JAR followed.
II. Issues
JAR raises five issues on appeal,8 which we paraphrase as follows.
1. Norristown is not entitled to collect trash fees for properties from which
it does not actually remove trash.
2. The Property should be exempt from Norristown’s trash fees because
all of JAR’s rental properties are in close proximity to each other and contain a total
of more than four rental units when aggregated.
3. Norristown implicitly agreed to JAR’s use of a privately contracted
trash removal service instead of Norristown’s service.
4. Even if Norristown did not affirmatively consent, it waived past due
fees or is estopped from collecting them.
5. Norristown’s lien claims were defective under applicable law.
III. Discussion
A. Trash Fees for Properties Not Served
JAR insists Norristown cannot impose trash fees against it because JAR pays
for private trash removal service at the Property and does not use the service of
Norristown’s contractor. This argument is without merit.
8
Our review is limited to a determination of whether the trial court abused its discretion or
committed an error of law, whether its findings of fact were supported by competent evidence, and
whether constitutional rights were violated. Allegheny Cty. v. Monzo, 500 A.2d 1096 (Pa. 1985);
Dreibelbis v. State Coll. Borough Water Auth., 654 A.2d 52 (Pa. Cmwlth. 1994); Shapiro.
6
This Court has repeatedly held that a municipality may impose trash fees on
the owners of all properties in the municipality, including those that do not use the
municipality’s service and instead contract for private trash removal. See City of
Reading v. Heckman (Pa. Cmwlth., No. 428 C.D. 2012, filed November 8, 2012),
2012 Pa. Commw. Unpub. LEXIS 845 (unreported)9 (property owners must pay
municipal trash fee, even if they dispose of their trash by other means); Newberry
Twp. v. Stambaugh, 848 A.2d 173 (Pa. Cmwlth. 2004) (property owner required to
pay municipal trash fee regardless of whether he used the service); Twp. of W.
Manchester v. Mayo, 746 A.2d 666 (Pa. Cmwlth. 2000) (requirement to pay
municipal trash fee applies no matter how property owner chooses to dispose of
trash).
Further, to the extent JAR complains that it is being charged for a benefit or
service it does not receive, we reject that assertion. As this Court explained in Mayo,
“residents of a municipality are users of the municipality’s collection and disposal
service regardless of how they choose to dispose of refuse because they receive the
benefit from the general disposal system by the collection of refuse from other
premises in the community.” Id. at 671. Accord R.R. at 156a (testimony that
property contracting privately for trash removal still benefits from Norristown’s
trash collection service to the municipality because trash is being picked up and the
streets are clean).
We agree with the trial court that JAR cannot avoid payment of Norristown’s
trash fees for the Property merely because JAR contracts for private trash removal
instead.
9
Although this opinion is not binding authority, we cite it as persuasive pursuant to this
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
7
B. Aggregation of Rental Properties for Exemption Purposes
JAR also argues it should be exempt from paying Norristown’s trash fees
because its properties in Norristown collectively include more than four residential
units. Although its various rental properties are separate, and each contains less than
four rental units, JAR asserts that the properties are in close proximity to each other
and have a combined total of more than four rental units. JAR reasons that all of its
rental properties, including the Property, should be considered in the aggregate for
purposes of qualifying for an exemption from Norristown’s waste removal fee. We
disagree.
JAR cites no provision of the Ordinance or other legal authority, and we are
aware of none, to support the proposition that a municipality must consider all
properties owned by a single entity as one property for purposes of assessing
municipal fees or granting exemptions from such fees. Moreover, Norristown
observes that JAR never formally requested an exemption from the Ordinance on
that or any other basis. JAR does not dispute that observation; nor does JAR cite
any authority or assert any argument that Norristown was required on its own
initiative to aggregate JAR’s various separate rental properties, without a request
from JAR, in order to exempt JAR’s properties from the municipal trash fee.
Accordingly, we conclude the trial court did not err in determining that JAR
could not aggregate its various properties in order to meet the minimum number of
units required to qualify for exemption from Norristown’s trash fees.
C. Implied-in-Fact Contract
JAR further asserts that Norristown, by its conduct, consented to JAR’s use
of a private trash removal contractor. JAR points out that Norristown’s trash
collector does not provide bins to JAR’s properties, all of which have dumpsters
8
provided by Waste Management, Inc. Thus, JAR contends an implied-in-fact
contract exists between itself and Norristown that JAR will not be subject to trash
fees from Norristown. We find this argument to be without merit.
In support of its contention, JAR cites authorities for the general proposition
that an implied-in-fact contract may arise from the parties’ conduct. However, JAR
cites no legal authority, and we know of none, for the proposition that a municipality
enters into an implied contract to exempt a property owner from a municipal service
whenever an owner obtains the same service privately and the municipality does not
force the property owner to use the municipality’s service. To the contrary, as
discussed in section A above, the law is clear that a municipality is entitled to collect
fees for municipal services, specifically including trash removal services, even from
property owners contracting separately for private trash removal. See Heckman;
Stambaugh; Mayo.
As JAR itself admits, Norristown has consistently billed JAR for trash
removal services to its rental properties, including the Property, on its annual tax
bills, and JAR has received those bills. R.R. at 252a. Norristown’s billings to JAR
for trash removal support the trial court’s finding that Norristown’s conduct did not
create an implied agreement to forgo charging JAR for trash removal from its rental
properties. We agree with the trial court’s rejection of JAR’s assertion that
Norristown’s conduct established an agreement not to impose trash fees. Accord
Elias v. Elias, 237 A.2d 215 (Pa. 1968) (lower court’s finding concerning existence
of implied-in-fact contract is binding unless arbitrary or capricious); Walters v. Buck
Hill Falls Co. (Pa. Cmwlth., No. 52 C.D. 2019, filed January 10, 2020), 2020 Pa.
Commw. Unpub. LEXIS 37 (unreported) (affirming trial court’s rejection of
9
implied-in-fact contract where evidence in record undermined any intention of the
parties to be bound to the alleged implied agreement).
D. Waiver or Estoppel
In addition, JAR argues Norristown waived its ability to enforce its liens, or
is estopped from doing so, by its delay in asserting, amending, and seeking to enforce
the liens. We discern no merit in this argument.
Waiver and estoppel are equitable doctrines. See Harrington v. Stivanson, 59
A. 268, 268 (Pa. 1904) (“[e]stoppel is governed by equitable principles”); Harbor
Creek Sch. Dist. v. City of Erie, 579 A.2d 452, 454 (Pa. Cmwlth. 1990) (referring to
“the equitable principles of estoppel, waiver and laches”). The Lien Act, under
which Norristown filed its liens against the Property, does not contemplate the
application of equitable procedures or principles to municipal liens. City of
Philadelphia v. Perfetti, 119 A.3d 396 (Pa. Cmwlth. 2015) (en banc). The Lien Act
creates statutory municipal claims, together with statutory rights to enforce
collection of such claims. Id. (citing City of Scranton v. Genet, 81 A. 335 (Pa. 1911);
Trigona v. Lender, 926 A.2d 1226 (Pa. Cmwlth. 2007)). Because the lien process is
statutory, it is not subject to equitable defenses. Perfetti (citing S. Union Twp.
Sewage Auth. v. Kozares, 320 A.2d 381 (Pa. Cmwlth. 1974)). Therefore, consistent
with our analysis in Perfetti, equitable principles offer JAR no defense to
Norristown’s liens.
Indeed, JAR concedes “that equitable defenses are not avaible [sic] in
statutory proceedings.” Br. of Appellant at 26. JAR suggests, however, that in the
event the Lien Act is not applicable, equitable principles may apply. We reject this
argument. The Lien Act is plainly applicable to this case, and JAR has not set forth
any argument or cited any authority to support its suggestion to the contrary.
10
The trial court correctly rejected JAR’s waiver and estoppel defenses.
E. Purported Defects in Lien Claims
Finally, JAR contends the filed liens contained several defects: (1) the
original liens were unsigned; (2) the 2018 liens were still not signed by Norristown’s
solicitor, but only by Portnoff; (3) the 2018 consolidated and restated liens were not
filed until some six years after the first of the original liens; and (4) the liens did not
contain a sufficient description of the service provided or the various fees imposed.
In addition, JAR suggests that even if the 2018 liens are valid, the defects in the
original liens preclude the addition of penalties or interest on those liens prior to
2018. We find these various arguments to be without merit.
1. Alleged Defects in Original Liens
JAR alleges various defects in the original liens, including lack of a signature,
absence of the Property address on the 2012 lien document, inconsistent mailing
addresses for JAR, and failure to state the authority for the liens, the time periods for
which they were filed, and the “work” to which the charges applied. Br. of Appellant
at 29. These alleged defects are not relevant.
Where a municipal lien has been filed but no writ has been issued seeking to
reduce the lien to judgment, the claim may be amended or revived at any time, and
the lien will reattach to the property at issue, except as to intervening interests of
third party purchasers who had no notice of the lien because of its defects.10 Section
1 of the 1959 amendment to the Lien Act,11 53 P.S. § 7432; see Perfetti; Sanft v.
Borough of W. Grove, 437 A.2d 1332 (Pa. Cmwlth. 1981). Here, there is no dispute
that Portnoff filed amended and consolidated liens before filing a writ to reduce them
10
No intervening interests are averred here.
11
Act of September 23, 1959, P.L. 955, as amended, 53 P.S. § 7432.
11
to judgment. Therefore, only the defects, if any, in the amended lien filings can
affect the enforcement of the liens.
2. Alleged Defects in Amended and Consolidated Liens
JAR also contends that despite the filing of amended liens by Portnoff, some
defects remain. The alleged remaining defects, however, do not preclude
Norristown’s enforcement of the liens.
a. Portnoff’s Signature
Section 10 of the Lien Act requires the signature of the municipality’s chief
executive officer or its solicitor on a filed lien. 53 P.S. § 7144. JAR concedes that
Portnoff is Norristown’s agent for collection of the liens, but insists the signature of
a Portnoff attorney is insufficient to comply with the Lien Act because Portnoff is
not Norristown’s solicitor. Norristown argues, and JAR concedes, that it did not
raise this issue before the trial court. Therefore, it is waived. See Pa.R.A.P. 302(a).
Moreover, as Norristown correctly points out, the Ordinance expressly
provides that Norristown’s contracted agent for collection of delinquent accounts
constitutes its solicitor for collection purposes. R.R. at 30a. Therefore, Portnoff’s
signature on the lien documents constitutes the signature of Norristown’s solicitor
for purposes of the liens, and it complies with the Lien Act.
b. Delay in Filing
A municipal lien arises by operation of law as soon as a municipal charge is
assessed, whether or not a lien claim is filed. See 53 P.S. § 7106(a)(1); N. Coventry
Twp. v. Tripodi, 64 A.3d 1128 (Pa. Cmwlth. 2013); Borough of Ambler v.
Regenbogen, 713 A.2d 145 (Pa. Cmwlth. 1998). Moreover, under Section 1 of the
1959 amendment to the Lien Act, there is no time limit on amending a defective
municipal lien; an amended municipal lien claim may be filed at any time after the
12
charges at issue are first payable. 53 P.S. § 7432. Thus, once an amended notice of
the lien is filed, the lien is valid and enforceable except as against intervening rights
and interests such as those of purchasers of the property without notice of the lien.
See 53 P.S. § 7432; Heckman (citing Keller v. Scranton City Treasurer, 29 A.3d 436
(Pa. Cmwlth. 2011)); Sanft.
JAR has owned the Property since 1990. It is not an intervening owner that
purchased the Property after filing of the original liens and without notice of them.
Therefore, despite JAR’s arguments that the original filed liens were defective and
that it did not receive notices of the liens until after they were amended and
consolidated in 2017, JAR is obligated to pay the fees reflected in the amended liens.
Heckman.
c. Descriptions of Services Provided and Fees Imposed
JAR avers, without detail or support, that the amended lien filings do not
describe with accuracy the “work” performed for which the claims were filed. Br.
of Appellant at 30. A review of the amended liens, however, reveals that each
expressly states the charges are for “trash fees” and states the service year of the
delinquency. See R.R. at 103a, 105a, 107a, 109a, 111a, 113a. JAR neither cites any
authority nor provides any explanation of why this description is inadequate. We
find the amended liens sufficiently identify the services provided. See Forest Cty.
Solid Waste Auth. v. Certain Parcels of Land (No. 2), 72 Pa. D. & C.2d 345 (1975)
(description stating lien claim was for collection of refuse between two dates was
sufficient); cf. City of Philadelphia v. Steward, 31 Pa. Super. 72 (1906) (lien claim
was insufficient where it was so vague that it left doubt whether work done was to
repair a sidewalk or install a sewer connection).
13
JAR further suggests the lien claims failed to delineate sufficiently the fees
charged. Notably, the Lien Act does not require an itemization of the components
of a fee to be set forth in a lien claim. See 53 P.S. § 7144. Perhaps recognizing this,
JAR couches its argument concerning the fee components in terms of the description
of the services performed. JAR cites no authority, and we are aware of none,
requiring a lien claim to set forth and describe separately each individual component
of the fee subject to a lien claim.
JAR suggests, however, that the 10% penalty added to the principal amount
of each lien was not authorized by the Lien Act. JAR reasons that the Lien Act
authorizes collection of “charges” but not “penalties.” Br. of Appellant at 30 (citing
53 P.S. § 7106(a)(1)).
Section 3 of the Lien Act provides that municipal claims are a lien on the
property served, “together with all charges, expenses, and fees incurred in the
collection of any delinquent account, including reasonable attorney fees. . . .” 53
P.S. § 7106(a)(1). Norristown’s ordinance provides for a 10% penalty on trash fees
more than 120 days delinquent. R.R. at 33a. JAR fails to support its argument
against imposition of the penalty with an explanation or citation of authority
sufficient to allow meaningful review on appeal. Therefore, it is waived.
Commonwealth v. Bishop, 217 A.3d 833 (Pa. 2019).
3. Penalties and Interest on Original Liens
In its reply brief, JAR asserts, without elaboration, that because there were
alleged defects in the original claims, it was unreasonable for Norristown to assess
penalties and interest on the original as well as the amended claims. This claim is
waived because it was first presented in a reply brief. Commonwealth v. Fahy, 737
A.2d 214 (Pa. 1999) (appellant may not raise new issue in reply brief (citing
14
Pa.R.A.P. 2113)); Chambersburg Area Sch. Dist. v. Dorsey, 97 A.3d 1281 (Pa.
Cmwlth. 2014) (same). Further, it is waived because JAR has failed to provide
sufficient explanation or citation to authority to allow meaningful review by this
Court. Bishop.
IV. Conclusion
Based on the foregoing discussion, we conclude the trial court correctly
granted judgment in favor of Norristown and against JAR. We therefore affirm the
trial court’s order.
__________________________________
ELLEN CEISLER, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Municipality of Norristown :
:
v. : No. 917 C.D. 2019
:
JAR Investments, Inc., :
Appellant :
ORDER
AND NOW, this 4th day of May, 2020, the order of the Court of Common
Pleas of Montgomery County is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge