North Cornwall Twp. v. G.D. Konevitch & M.M. Konevitch ~ Appeal of: G.D. Konevitch & M.M. Konevitch ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
North Cornwall Township :
:
v. :
:
George D. Konevitch and :
Margaret M. Konevitch :
:
Appeal of: George D. Konevitch and : No. 17 C.D. 2022
Margaret M. Konevitch : Submitted: May 26, 2023
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: September 14, 2023
George D. Konevitch (Konevitch) and Margaret M. Konevitch
(collectively, Appellants), pro se, appeal from the Lebanon County Common Pleas
Court’s (trial court) December 7, 2021 order denying their Motion to Vacate and/or
Strike a Municipal Claim/Lien for Fraud Upon the Court (Motion) and affirming
North Cornwall Township’s (Township) municipal claim/lien (Claim). Essentially,
there are three issues before this Court: (1) whether the trial court failed to include
its findings of fact and conclusions of law in its December 7, 2021 order; (2) whether
the Township and/or its employees and its solicitor (Solicitor) were authorized to,
and did properly file, the Claim; and (3) whether the trial court erred by denying the
Motion.1 After review, this Court affirms.
1
In their Statement of Questions Involved, Appellants present seven issues: (1) whether
the trial court violated their constitutional rights by failing to include its findings of fact and
conclusions of law in its order; (2) whether the trial court’s non-existent findings of fact and legal
conclusions were arbitrary and capricious; (3) whether the Township and the Township’s de facto
code enforcement officer violated Appellants’ constitutional rights from the start; (4) whether the
Appellants own 2130 Colebrook Road in the Township (Property). By
letter dated May 21, 2014 (2014 Letter), then-Township Public Works Director
Thomas J. Long (Long) warned owners whose properties bordered the Quittapahilla,
Snitz, and Beck Creeks in the Township, including Appellants, that Section 2-E of
the North Cornwall Township, Lebanon County, Pennsylvania Ordinance
(Township Ordinance) No. 196 then in effect2 prohibited owners from interfering
with waterflow in the creeks “by means of damming construction or otherwise,
including the failure to remove fallen trees or other debris located on the property.”
Original Record (O.R.) Notes of Testimony (N.T.) Exhibit (Ex.) 2 (2014 Letter) at
1. The 2014 Letter also stated that Township Ordinance No. 197 then in effect3
prohibited the accumulation of materials on private properties within waterway flood
zones that could cause stream damming. See id. The 2014 Letter requested
Appellants to inspect the Property and take steps necessary to comply with Township
Ordinance Nos. 196 and 197 to prevent damage to other property owners. See id. at
2.
Township, as a municipal corporation, has authority over mankind and its private property and/or
private land; (5) whether the Township and its employees have authority over Appellants; (6)
whether the Township and its employees enforce municipal codes, nuisance ordinances, and
maintenance codes on mankind, its private property, and/or private land; and (7) whether the
Township and its employees are authorized to compel specific performance without a written
contract with Appellants regarding their private property and private land. See Appellants’ Br. at
4-5. However, the Argument portion of Appellants’ brief is not “divided into as many parts as
there are questions to be argued[,]” nor is there “at the head of each part -- in distinctive type or in
type distinctively displayed -- the particular point treated therein, followed by such discussion and
citation of authorities as are deemed pertinent[,]” as required by Pennsylvania Rule of Appellate
Procedure (Rule) 2119(a), Pa.R.A.P. 2119(a). Rather, in their brief, Appellants summarize the
procedural history, present summaries of various legal principles, and declare only that they did
not consent to the “‘STATUTORY JURISDICTION’ OF THE PRIVATE COLORABLE COURT OF CONTRACT.”
Appellants’ Br. at 34. Although Appellants’ brief is rambling and difficult to follow, this Court
gleans the restated issues therefrom.
2
The year for Township Ordinance No. 196 then in effect is not evident in the record.
3
The year for Township Ordinance No. 197 then in effect is not evident in the record.
2
On July 25, 2014, Long investigated a complaint from Appellants’
northern neighbor (Ebersole)4 that tall bamboo was migrating from Appellants’
Property onto his property and into the Beck Creek (Creek) banks. See O.R. January
11, 2021 N.T. (1/11/2021 N.T.) at 17-18, 63. From Appellants’ adjacent neighbor
Robert Ridinger’s (Ridinger) property, Long observed and photographed the
bamboo extending from Appellants’ Property to the Creek’s banks. See 1/11/2021
N.T. at 18-19; see also Ex. 4. Ebersole lodged further complaints about Appellants’
bamboo “numerous times over the course of . . . two, three years[,]” but the
Township did not take action against Appellants because, although it is invasive and
difficult to remove, bamboo was considered a grass, not a noxious weed. 1/11/2021
N.T. at 22, 82.
In January 2018, Long and Township Highway Foreman Richard Royer
(Royer) investigated a complaint Ridinger lodged that some of Appellants’ bamboo
had died and decayed and was blocking a portion of the Creek and the inlet pipe to
Ridinger’s pond. See id. at 23-28, 69, 100-106; see also Exs. 5-7. Based on Long’s
and Royer’s observations, bamboo concentrated on and extending from Appellants’
Property into the Creek had created a nuisance.
On February 28, 2018, as then-Code Enforcement Officer and
Township Manager (Township Manager) Long issued a Notice of Violation (NOV)
to Appellants related to the bamboo, stating therein that Appellants were in violation
of Township Ordinance No. 297 (Ordinance) and Section 302.4 of the 2009
International Property Maintenance Code (IPMC).5 See Reproduced Record (R.R.)
4
Ebersole’s full name is not included in this record.
5
In April 2017, the Township repealed Ordinance Nos. 196 and 197, and replaced them
with the Ordinance (relating to general nuisances on private property). See 1/11/2021 N.T. at 31;
see also Ex. 9. The Ordinance was in effect when the Township issued the NOV to Appellants.
The Township later repealed and replaced the Ordinance with Ordinance No. 315 (relating to
general nuisances on private property).
3
at 1-3;6 see also Ex. 8. The NOV set forth instructions for Appellants to “contact
the Township Manager [(Long, in this instance)] within three (3) days of receipt of
th[e] [NOV]” to discuss the matter, ordered Appellants to abate the violation by
March 29, 2018, and informed Appellants that if they failed to do so, the Township
would take the steps necessary to abate the violation and bill Appellants for the costs
it incurred. R.R. at 2; see also 1/11/2021 N.T. at 32-37. In the NOV, Long further
declared that if Appellants did not pay the fees and costs, “the Township’s Solicitor
[would] take action to place a lien on the [P]roperty.” R.R. at 2. Appellants did not
contact Long within three days, or otherwise indicate that they intended to abate the
nuisance. See id. at 36, 46, 59-60.
By a Neutral Response Letter dated March 3, 2018, Konevitch returned
the NOV to the Township, stating that the NOV was served on Appellants by
mistake, and he did not consent to the action. See R.R. at 4. In addition, by a March
17, 2018 document titled Actual Notice and Demand that Konevitch sent to the
Township, he declared that the violation was an abatable nuisance for which he was
the only victim, he declined to further participate in Long’s abuse of legal process,
and he warned that he would see Long in federal court if Long pursued a lien against
the Property. See R.R. at 5-13. Konevitch also stated that he would assess his fees
and costs for the litigation against Long, and gave Long 10 days to respond to the
March 17, 2018 Actual Notice and Demand, after which he would consider the
matter closed. See R.R. at 7.
By June 13, 2018 letter, Long, on the Township’s behalf, notified
Konevitch that since he refused to remove the offending bamboo to unblock the
6
Rule 2173 specifies: “[T]he pages of . . . the reproduced record . . . shall be numbered
separately in Arabic figures . . . thus 1, 2, 3, etc., followed in the reproduced record by a small a,
thus 1a, 2a, 3a, etc.” Pa.R.A.P. 2173. Because Appellants’ Reproduced Record page numbers
were not followed by a small a, for ease of reference, this Court will refer to the Reproduced
Record pages as Appellants numbered them.
4
Creek, the Township was authorized to hire a third-party contractor to do the work,
unless Konevitch notified the Township by June 22, 2018, that he intended to do it.
See R.R. at 14; see also Ex. 10. Long described that “the contractor will be on the
neighboring property and will cut and remove all of the fallen bamboo vegetation to
unblock the stream[,]” the Township would invoice Appellants for the contractor’s
work, and Appellants’ failure to pay the Township would result in the Solicitor
taking necessary legal action to collect the sum and placing a lien on the Property.
Id.
Konevitch responded by June 21, 2018 Actual Notice and Demand to
the Township, in which he declared: Long failed to timely respond to the March 17,
2018 Actual Notice and Demand; Long lacked authority to contract with a third party
at his expense; Konevitch (as a Native American of non-Indian descent, a
Pennsylvanian, and an American National) was not subject to Township law because
it is a foreign jurisdiction; unless the Township had a higher deed, it could not enter
Appellants’ private Property; and notified Long that Konevitch was lodging a claim
for constructive fraud, mail fraud, and peonage. See R.R. at 15-16. Konevitch gave
Long 10 days to respond to the June 21, 2018 Actual Notice and Demand, after
which he would consider the matter closed. See R.R. at 16.
Because Appellants failed to timely abate their violation, the Township
hired Penn Turf Landscaping (Penn Turf), which, with access from Ridinger’s
property, removed the bamboo from the Creek on June 25, 26, and 27, 2018. See
1/11/2021 N.T. at 46-48, 102, 107-110; see also Ex. 11. By August 28, 2018 letter,
the Township produced the $4,400.00 invoice to Appellants for Penn Turf’s work,
and requested payment from Appellants in that amount by September 28, 2018. See
R.R. at 17-19; see also 1/11/2021 N.T. at 47-52; Ex. 11.
By September 14, 2018 Actual Notice and Demand, Konevitch
declined to reimburse the Township for Penn Turf’s costs on the basis that Long
5
failed to timely respond to the June 21, 2018 Actual Notice and Demand, Konevitch
was not a party to the contract with Penn Turf, Long did not have Konevitch’s
power-of-attorney to act on his behalf, and Konevitch was not subject to the
Township’s laws. See R.R. at 20-21. Konevitch added that, since Penn Turf was on
the neighbor’s property to remove the bamboo, the Township should bill the
neighbor, the Township’s correspondence constituted another count of mail fraud,
and, if the Township persisted, he would seek damages and attorney’s fees. See R.R.
at 21. Konevitch declared that Long’s failure to respond within 10 days would be
clear and convincing evidence that Long’s acts were ultra vires. See id.
Because Appellants refused to reimburse the Township for Penn Turf’s
costs, the Township turned the matter over to the Solicitor for collection. See
1/11/2021 N.T. at 52. On December 5, 2019, the Solicitor issued a Notice of Intent
to Assess Attorney’s Fees (Notice) to Appellants, therein affording them 10 days to
pay $4,400.00 before it took further legal action, including filing a lien against the
Property and assessing attorney’s fees pursuant to the Ordinance at a rate of
$160.00/hour. See R.R. at 22-24; see also 1/11/2021 N.T. at 53-54; Ex. 12. The
Notice further declared that if Appellants disputed any portion of the debt, the
Township would provide verification thereof. See R.R. at 23.
By Constructive Notice and Demand dated December 12, 2019,
Konevitch acknowledged the Township’s Notice, declared that the Township’s
collection of Appellants’ debt had to comply with the Fair Debt Collection Practices
Act (FDCPA),7 and demanded that the Township complete a Debt Collector
Disclosure Statement within 10 days. See R.R. at 25-30.
By January 2, 2020 letter, the Solicitor provided Appellants with the
completed Debt Collector Disclosure Statement and Long’s affidavit validating
7
15 U.S.C. §§ 1692-1692p.
6
Appellants’ debt in accordance with the FDCPA and what is commonly referred to
as the Municipal Claims and Tax Liens Act (MCTLA).8 See R.R. at 31-35. On
January 31, 2020, the Township filed the Claim, therein seeking $4,981.80 from
Appellants for expenses the Township incurred to abate a nuisance at the Property
($4,400.00), plus costs ($53.80), attorney’s fees ($528.00), and interest as allowed
by law. See R.R. at 43.1-43.4.
On March 16, 2020, Appellants filed the Motion. Therein, Appellants
appear to claim that the Township’s Claim was unsubstantiated and fraudulent; the
subject brush and bamboo was located on an adjoining neighbor’s property;
Appellants did not owe the Township any monies; the Township did not exercise
due diligence in validating the purported debt, particularly because the Solicitor did
not walk the Property; pursuant to the Declaration of Independence, the Township
cannot govern Appellants without their permission; because it is not a de jure
governing body, the Township is a foreign agency that must be registered with the
United States Department of Justice in order to do business; in the absence of a
contract, commercial agreement, or power-of-attorney, Long lacked the authority to
remove brush and bamboo from the Property; the Township and the Solicitor are
bound by the doctrine of respondeat superior for work performed by their employees
or agents; the Township willfully and deliberately defrauded Appellants of their
private property under the color of law for no legitimate purpose; the Township and
the Solicitor committed barratry (i.e., the stirring up of quarrels and suits); and
Appellants incurred irreparable injuries and damages as a result. See R.R. at 45-48.
Appellants also filed a Praecipe to Schedule a Hearing on the Motion. See R.R. at
44. On March 20, 2020, the trial court issued a Rule to Show Cause for the Township
to state why the trial court should not grant the Motion. See R.R. at 49.
8
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7455.
7
On or about May 18, 2020, Appellants filed in the trial court an Actual
Notice and Demand for the Township to file a writ of scire facias. See R.R. at 50-
55. Appellants also referred to that document as their Affidavit of Defense. See
R.R. at 53-54; see also O.R. Item 9 (Supplemental Affidavit of Defense) at 1.
Therein, Appellants continued their ongoing claims, and also asserted that since the
Township failed to follow its procedure and first prosecute the NOV in magisterial
district court, it lacked jurisdiction over Appellants. See R.R. at 50-55.
On June 2, 2020, the Township filed a Writ of Scire Facias in the trial
court,9 and notified Appellants of their opportunity to file an affidavit of defense to
the Claim. See R.R. at 56-61. On June 23, 2020, Appellants filed a Supplemental
Affidavit of Defense, wherein they argued, inter alia: (1) their unrebutted Affidavit
of Defense was prima facie evidence in their favor; (2) the Township issued a false
NOV and committed fraud by hiring Penn Turf; (3) the Township failed to prosecute
the case in the magisterial district court, thereby depriving Appellants of their civil
rights and judicial due process; (4) the Township failed to do its due diligence and
determine who owns the property through which the Creek runs; (5) according to
their deed, Appellants do not own and do not have authority to maintain the property
on which the Township performed the maintenance; and (6) Appellants were entitled
to a jury trial. See O.R. Item 9;10 see also R.R. at 59-62. On August 12, 2020,
Appellants filed a Second Notice/Notice of Default for the Township’s failure to
9
“A writ of scire facias is a writ authorized to be issued as a means of enforcing payment
of a municipal claim out of the real estate upon which such claim is a lien.” W. Clinton Cnty. Mun.
Auth. v. Est. of Rosamilia, 826 A.2d 52, 56 (Pa. Cmwlth. 2003). “The reason for imposing the lien
on the property as opposed to the person allegedly responsible for the delinquency is that the
property received the benefits of municipal services, not the person.” City of Phila. v. Perfetti,
119 A.3d 396, 400 (Pa. Cmwlth. 2015).
10
Appellants did not include their Supplemental Affidavit of Defense in the Reproduced
Record.
8
respond to their Affidavit of Defense and the Supplemental Affidavit of Defense.
See R.R. at 36-38.
On November 4, 2020, Appellants filed a Supplemental Affidavit of
Defense for the Second Time, reiterating their claims, incorporating their Affidavit
of Defense and the Supplemental Affidavit of Defense, and adding: (7) the
Township, through Long, lacks authority to issue fines, etc.; (8) the NOV constituted
constructive fraud and mail fraud; (9) the Township failed to respond to Appellants’
Actual Notices and Demands; (10) neither the Township nor Penn Turf removed
bamboo from the Property; and (11) the Township is liable to Appellants for slander,
libel, defamation, fraud, acts of barratry, color of law violations, and official
oppression. See R.R. at 65-71.
The trial court conducted hearings on January 11 and March 31, 2021.
By December 7, 2021 order and accompanying opinion, the trial court denied
Appellants’ Motion and affirmed the Township’s municipal claim/lien. See R.R. at
116-142. On December 20, 2021, Appellants filed a document that the trial court
treated as a request for reconsideration, which the trial court denied by December
22, 2021order. See R.R. at 143-175. Appellants appealed to this Court.11
By January 7, 2022 order, the trial court instructed Appellants to file a
Concise Statement of Errors Complained of on Appeal pursuant to Pennsylvania
Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement). Appellants
11
“This Court’s scope of review of a trial court’s order disposing of a petition to strike a
municipal claim is limited to a determination of whether the court abused its discretion or
committed an error of law or whether constitutional rights were violated.” Warwick Twp. Water
& Sewer Auth. v. Warwick Realty Co., L.P., 176 A.3d 387, 393 n.8 (Pa. Cmwlth. 2017) (quoting
Valley Forge Sewer Auth. v. Hipwell, 121 A.3d 1164, 1167 n.4 (Pa. Cmwlth. 2015)).
On June 7, 2023, Appellants filed a document in this Court titled Common Law Writ of
Praecipe for Assignment of a Standard Oral Argument of Fifteen (15) Minutes, which this Court
deems an application for oral argument, to assert that the Township’s brief was not timely filed.
The Township opposed the oral argument application on July 3, 2023. Because it appears that the
Township’s brief was timely filed, this Court denies Appellants’ application for oral argument.
9
filed their Rule 1925(b) Statement on February 11, 2022.12 On July 7, 2022, the trial
court issued an opinion pursuant to Rule 1925(a), relying on the reasoning in its June
7, 2021 opinion, and adding that Appellants waived their right to demand a jury trial
by failing to timely raise that issue to the trial court.13 See R.R. at 191-195.
Appellants first argue that the trial court failed to include its findings of
fact and conclusions of law in its order. This Court observes that the trial court’s
December 7, 2021 order does not include its findings of fact and conclusions of law,
but the trial court did not violate any law or rule of court by choosing not to do so.
Moreover, that same day, the trial court issued a full opinion in support of its order.
Although the opinion was not separated into sections marked findings of fact or
conclusions of law, the 25-page opinion clearly included 13 pages of factual findings
based on the evidence, and 12 pages setting forth the legal basis upon which it
12
Appellants received the trial court’s order on January 12, 2022 but, due to Konevitch’s
illness, Appellants were unable to timely file their Rule 1925(b) Statement. On February 15, 2022,
Appellants filed their Rule 1925(b) Statement nunc pro tunc. Because the trial court held that it
was without jurisdiction to rule on the late-filed Rule 1925(b) Statement, the trial court transferred
the matter to this Court. By March 25, 2022 Order, this Court remanded the matter to the trial
court for a determination of whether Appellants should be permitted to file their Rule 1925(b)
Statement nunc pro tunc and remitted the record. The trial court conducted a hearing on June 2,
2022 and, on June 9, 2022, the trial court granted Konevitch’s nunc pro tunc filing request. On
July 18, 2022, the trial court, having accepted Appellants’ Rule 1925(b) Statement, returned the
record to this Court, which issued a briefing schedule.
13
The first time Appellants’ jury trial demand appears in the record is in the caption of
their March 2020 Praecipe to Schedule a Hearing, which the trial court granted. See R.R. at 44.
Appellants did not object before, or during, the hearing that they were deprived of a jury trial.
Rather, they made that claim for the first time in their Brief in Support of Dismissal of the Case
and/or to Vacate and Strike the Unsubstantiated Municipal Claim/Lien filed in the trial court on
August 3, 2021 (five months after the second hearing), and in their Rule 1925(b) Statement. See
R.R. at 79-80, 103. This Court has held: “To preserve a legal issue for appeal, an objection must
be made at [the hearing]. [Reilly v. Se. Pa. Transp. Auth., 489 A.2d 1291, 1300 (Pa. 1985).] It is
‘not enough to raise new grounds for the first time in post-[hearing] proceedings.’ Id. . . .”
Residents of Buckingham Springs v. Bucks Cnty. Assessment Off., 60 A.3d 883, 888 (Pa. Cmwlth.
2013). Accordingly, the trial court properly concluded that Appellants waived the issue by failing
to timely raise it to the trial court.
10
reached its conclusion. Accordingly, Appellants’ claim that the trial court failed to
include findings of fact and conclusions of law in its order lacks merit.
Appellants next assert that the Township and/or its employees and the
Solicitor were not authorized to, and did not properly file, the Claim, in particular,
in a magisterial district court. However, municipalities only have powers the
General Assembly grants them. See Robinson Twp., Washington Cnty. v.
Commonwealth, 83 A.3d 901 (Pa. 2013). As a second class township, the Township
is governed by The Second Class Township Code (Code).14 In Section 1601 of the
Code, the General Assembly stated that the Township’s Board of Supervisors “may
adopt ordinances in which general or specific powers of the [T]ownship may be
exercised[.]” 53 P.S. § 66601(a).
Relevant here, Section 3.01 of the Ordinance generally declared
nuisances unlawful. See N.T. Ex. 9 (Ordinance) at 8. Section 3.01.12.c of the
Ordinance made it “unlawful to refuse to cut and/or destroy noxious weeds or other
vegetation that has grown to an average height of [10] inches or more[,]” except on
property principally used for agricultural purposes. Id. at 23; see also R.R. at 1.
Section 3.01.12.f of the Ordinance added:
It shall be unlawful to refuse or fail to maintain planting
beds to the point where ornamental plants, shrubs[,] or
bushes are permitted to grow in an unkempt fashion
extending into . . . right[s]-of-way, private or public
property . . . or to permit noxious weeds or other vegetation
to grow without restriction to an average height exceeding
[10] inches within such designated planting beds[,] or to
permit any of the aforementioned conditions to exist.
Ex. 9 (Ordinance) at 23. Section 302.4 of the IPMC, which the Township adopted
in Ordinance No. 263, specified, in pertinent part:
14
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.
11
All premises and exterior property shall be maintained
free from weeds or plant growth in excess of [10 inches].
All noxious weeds shall be prohibited. Weeds shall be
defined as all grasses, annual plants[,] and vegetation,
other than trees or shrubs provided; however, this term
shall not include cultivated flowers and gardens.
codes.iccsafe.org/content/IPMC2009/chapter-3-general-requirements (last visited
Sept. 13, 2023); see also R.R. at 1.
Section 6.01.1 of the Ordinance authorized the Township’s Code
Enforcement Officer (Long, in this instance) to enforce the Ordinance. See Ex. 9
(Ordinance) at 26. Section 4.01.2.a of the Ordinance further provided, in relevant
part:
Upon such determination of a violation of this
Ordinance, [the] Township shall give notice of such
alleged violation in the following manner:
a. By initiating and attempting to give notice by
telephone or personal visit to the property, and
providing a description of the violation, the
methods for remedy of the violation and the
frame for such remedies to be accomplished,
and the possible fines incurred if the violation
is not corrected.
Id. at 24.
Article VII, Section 7.01.1 of the Ordinance, titled Violations and
Penalties, permitted the Township to seek fines and penalties for nuisances before a
magisterial district justice. See id. In the alternative, Article VIII, Section 7.01 of
the Ordinance, titled Remedies, authorized the Township to issue notices of violation
for nuisances and, if the property owner fails to abate the nuisance, the Township
could do so, and charge the expenses, costs, and interest related thereto to the
person(s) responsible for the violation. See id. at 27. Article VIII, Section 701.4 of
the Ordinance declared: “The Township may take a lien for the value of the costs of
12
pursuing Ordinance compliance against the real public or private property of the
person responsible for Ordinance compliance.” Id. Moreover, Section 1102 of the
Code declares that “[t]he [T]ownship[’s] [S]olicitor shall direct and control the legal
matters of the [T]ownship[.]” 53 P.S. § 66102. Section 1103 of the Code specifies
that “[t]he [T]ownship[’s] [S]olicitor shall commence and prosecute all actions
brought by the [T]ownship . . . .” 53 P.S. § 66103.
The Township is further subject to “[t]he current procedure for
enforcing municipal claims . . . set forth in the MCTLA. ‘The [MCTLA] provides
for a specific, detailed and exclusive procedure that must be followed to challenge
or collect on a municipal lien[.]’” City of Phila. v. Perfetti, 119 A.3d 396, 399 (Pa.
Cmwlth. 2015) (quoting City of Phila. v. Manu, 76 A.3d 601, 604 (Pa. Cmwlth.
2013)). This Court has explained:
The [MCTLA] authorizes the filing of a claim “arising out
of, or resulting from . . . service supplied, work done, or
improvement authorized and undertaken, by a
municipality,” which “shall include all penalties, interest,
costs, fines, charges, expenses and fees, including
reasonable attorney[’s] fees, as allowed by [the MCTLA]
and all other applicable laws.” Section 1 of the [MCTLA],
53 P.S. § 7101.
Warwick Twp. Water & Sewer Auth. v. Warwick Realty Co., L.P., 176 A.3d 387, 394
(Pa. Cmwlth. 2017).
The Code and the Ordinance clearly authorized Long to issue the NOV
to Appellants for a nuisance and for the Solicitor to pursue the lien against
Appellants pursuant to the MCTLA. Long issued the NOV based on his observation
that bamboo originating from Appellants’ Property blocked the Creek and created a
nuisance under the Ordinance. When Appellants refused to abate the nuisance, the
Township contracted with Penn Turf to remove the offending bamboo and then
sought reimbursement from Appellants for the work. Because Appellants refused to
13
reimburse the Township, the Solicitor obtained a lien in accordance with the
MCTLA.
The trial court held:
[T]he Township followed the appropriate procedure in
response to this situation. Once the existence and cause of
the nuisance was ascertained, the Township issued [the
NOV] in accordance with Section 4.01 of [the Ordinance]
and informed [Appellants] of the violation and provided
sufficient time in which the violation could be corrected.
[Appellants] were also informed of the potential penalties
and the possibility of abatement by the Township if the
problem was not corrected. Despite several such notices
being sent to [Appellants], they took no action to remedy
the problem and the Township was forced to take
appropriate measures to correct the problem itself.
[Appellants] were informed that this would occur if the
problem was not abated and that they would be responsible
for any expense incurred as a result. [Appellants] were
given notice of the amount due for the remediation of the
problem, failed to satisfy the debt, and a municipal claim
and lien were properly put in place. Long explained that
this was necessary in order to protect the neighboring
properties from potential flooding.
With regard to the issue of notice to [Appellants], we note
that the Township did not strictly comply with the
requirements of Section 4.01.2.a [of the Ordinance] by
addressing the problem via telephone or a personal visit to
[Appellants]. Long testified that he did visit the site
several times after receiving complaints from . . . Ebersole
and [] Ridinger, but there was no indication that he or any
other Township representative attempted to contact
[Appellants] by telephone or a personal visit before the
mailing of the violation letters. It appears that Long
anticipated personal contact with [Appellants] to be
arranged after [Appellants] received the mailed [n]otices
and contacted the Township within the three-day period to
discuss the nuisance and the process of abatement as
required by the [n]otices.
At the hearings, [Appellants] complained that there was no
personal contact or offer of help from anyone from the
14
Township. Although it appears that they were also at fault
for failing to phone or otherwise make some effort to
speak with a Township representative once the violation
letters were received, this raises the question of whether
the parties could have resolved this matter amicably had
either one reached out to the other. However, once proper
notice is given to the responsible parties, a municipality
may proceed with abatement of a nuisance. [See] 23
Summary Pennsylvania Jurisprudence 2d Municipal and
Local Law § 19:25 (2d ed. [2021]). [Appellants] did
receive ample notice of the violation and of the
Township’s plan to correct the condition if [Appellants]
did not do so. [Appellants’] responses also placed the
Township on notice that they did not take responsibility
for the condition and that they did not intend to take any
action to correct the problem by the written replies to the
violation letters. Thus, it appears that the Township had
no alternative but to correct the problem itself before
damage was incurred by neighboring landowners.
Trial Ct. Op. at 22-24. This Court finds no error in the trial court’s reasoning.
Accordingly, Appellants’ claim that the Township and/or its employees and the
Solicitor were not authorized to, and did not properly file the Claim, lacks merit.
Lastly, Appellants contend that the trial court erred by denying the
Motion and upholding the Township’s lien because they did not own the land from
which Penn Turf cleared the bamboo and, thus, they did not violate the Ordinance.
However, this Court has explained:
Municipal claims constitute prima facie evidence of the
facts averred within the claim. Section 20 of the
[MCTLA], 53 P.S. § 7187. Further, the municipal claims
constitute conclusive evidence except where they have
been specifically denied by an owner’s affidavit of
defense. Id. The owner, as the defendant in a scire facias
proceeding, bears the burden of overcoming the
municipality’s prima facie case by presenting sufficient
evidence that the claims are erroneous. Gen[.] Mun[.]
Auth[.] of the Borough of Harvey’s Lake v. Yuhas, . . . 572
A.2d 1291, 1294 ([Pa. Super.] 1990); see also Abbottstown
Paradise Joint Sewer Auth[.] v. Carter[] (Pa. Cmwlth.,
15
No. 983 C.D. 2007, filed Jan[.] 24, 2008), slip op. at
4 . . . .[FN]9
[FN]9
Pursuant to Commonwealth Court Internal
Operating Procedure § 414(a), 210 Pa. Code §
69.414(a), an unreported opinion of this Court may
be cited for its persuasive value and not as binding
precedent.
Warwick Twp. Water & Sewer Auth., 176 A.3d at 394.
At the trial court hearings, the Township established that it made
Appellants aware in 2014 of the problems creek side vegetation can cause for
neighboring properties. After receiving Ridinger’s 2018 complaint, Long generally
confirmed Appellants’ Property lines based on Lebanon County’s 2016 Geographic
Information System (GIS) aerial overview.15 See 1/11/2021 N.T. at 22, 26, 71; see
also March 31, 2021 Notes of Testimony (3/31/2021 N.T.) at 34-35, 37-38; Ex. 16.
Although Long did not know the precise location of Appellants’ Property line, he
recalled that he “drew [his] conclusions based on aerial views from [Lebanon]
County GI[S], [and from] talking to the neighbors where the boundary lines [are].”
See 1/11/2021 N.T. at 71. Long was aware that Appellants’ Property line did not
extend all the way to the west bank of the Creek. See id. at 73. Long and Royer
testified that the bamboo was 10 to 35 feet tall and was concentrated on and
extending from Appellants’ Property toward and into the Creek - not coming from
adjacent properties bordering on the north, east, or south. See id. at 28-29, 58, 68-
69, 74, 78, 86-88, 103-104, 109-112; see also 3/3/2021 N.T. at 29-30, 40.
To overcome the presumption that the Claim was erroneous, Konevitch
called Penn Turf Sales Representative Aaron L. Tyson (Tyson), who testified that
Penn Turf entered the Ridinger property to access the bamboo in June 2018, removed
approximately 3 to 5 feet of dead bamboo that was 20 to 30 feet tall and had fallen
15
The parties agreed, and the GIS photograph contains the disclaimer that the boundaries
are “approximate” and “should not be interpreted as the legal boundary description.” Ex. 16.
16
into the Creek and backed up the water flow. See 3/31/2021 N.T. at 46-47, 51-52,
55-58, 63-65, 68-71, 73. Tyson described that the bamboo was matted and damming
the Creek, such that Penn Turf had to dredge the bamboo from the Creek to clear the
obstruction. See id. at 60-62. Tyson confirmed that the bamboo originated from the
opposite side of the Creek from Ridinger’s property, approximately 20 yards back
from the Creek toward the home on the Property. See id. at 58, 62, 66. Tyson
estimated that Penn Turf removed 22 trailer loads of dead bamboo. See id. at 59.
Tyson clarified that Penn Turf did not touch Appellants’ Property during the project.
See id. at 70-71.
Konevitch also called Linda Ridinger, who confirmed that, although the
Ridingers have never had their property surveyed, she understood that she and
Ridinger own the property on both sides of the Creek to the east of Appellants’
Property, including the Creek bank on Appellants’ side of the Creek up to
Appellants’ Property line. See id. at 78-79, 86; see also Exs. 7, 16. She explained
that she and Ridinger maintained the banks on both sides of the Creek for
approximately 20 years, but the bamboo growth worsened over time to the point it
blocked the inflow to their pond, and Ridinger’s ill health made it difficult to clear
it, so the Ridingers notified the Township. See id. at 80-81, 85, 88. Linda Ridinger
described that the bamboo was “mostly” growing on Appellants’ Property,
originating approximately 30 to 40 feet back from the Ridingers’ property line, and
encroached approximately 3 feet onto the Ridingers’ Creek bank and into the Creek.
See id. at 77-78, 87-89. She did not recall seeing a fence denoting Appellants’
Property line. See id. at 90. Linda Ridinger stated that she and Ridinger granted the
Township access to their property to abate the nuisance. See id. at 89.
In addition, Konevitch called Ridinger, who confirmed Linda
Ridinger’s testimony and similarly asserted that most of the bamboo originated on
Appellants’ Property and encroached several feet onto the Ridinger property and
17
into the Creek creating a blockage. See id. at 100, 102-103, 105-107. He agreed
with Tyson that Penn Turf never entered Appellants’ Property in June 2018. See id.
at 108. Ridinger recalled seeing Konevitch hang a yellow rope at what Konevitch
felt was Appellants’ Property line after Penn Turf cleared the bamboo. See id. at 95-
96, 105. He did not recall seeing a fence marking Appellants’ Property line. See id.
at 96. Ridinger declared that he would clear bamboo that migrates onto the Ridinger
property and Appellants should clear bamboo on their Property. See id. at 102-103.
Margaret Konevitch testified that they received all of the Township’s
letters and Konevitch responded to them. See id. at 116, 119. She claimed that when
they had been told by other neighbors about problems created by their bamboo,
Appellants cut it, dug it up, poisoned it, and took steps they knew to get rid of it, but
in this case the Township just issued the NOV, which she perceived as a threat, and
then an invoice without helping Appellants figure out how to dispose of the bamboo.
See id. at 117-122.
Konevitch confirmed his wife’s testimony regarding receiving the
Township’s mailings, and Appellants’ attempts to remove and/or kill the subject
bamboo over the years. See id. at 124, 135. He acknowledged that the bamboo was
migrating toward the Creek, but claimed that he was told not to remove vegetation
from the bank because the bank would erode. See id. at 125. Konevitch admitted
that the bamboo was 20 to 25 feet tall, but asserted that “it did not fall into the
[C]reek.” Id. at 125. He added that there are remnants of a fence erected in 1977 at
Appellants’ Property line, and the bamboo that fell into the Creek grew in the
approximately 11 feet of the Ridingers’ property from the edge of the water to the
fence. See id. at 125, 131, 140-141. However, he admitted that he had never had
the Property surveyed. See id. at 140.
Konevitch further testified:
18
[T]o say that we never ever did anything to control or do
anything to alleviate the problem with the bamboo, that is
not true. Anything that grows on my side of the fence is
my problem. Anything that grows on their side of the
fence is their problem.
To make me go over there on that side of the fence is a
forced trespass unless they have an agreement with the
property owner to allow me to come over and fix that.
Now, if that was their intention like they tried to animate
[sic] at the last hearing, they could have called me and
said, George, we need to talk this over. They never did
that.
Id. at 131. He acknowledged that photographs admitted into evidence depicted
bamboo on the Ridingers’ property, but pronounced: “[I]t got there because God
makes bamboo grow. Konevitch doesn’t make bamboo grow.” Id. at 139.
The trial court, as fact[-]finder, may believe all, part, or
none of the evidence presented. The appellate court is “not
permitted to reexamine the weight and credibility
determinations or substitute our judgment for that of the
fact[-]finder.” Abbottsown Paradise Joint Sewer Auth[.],
slip op. at 4-5 (quoting Turney Media Fuel, Inc. v. Toll
Brothers, Inc., 725 A.2d 836, 841 (Pa. Super. 1999)).
Warwick Twp. Water & Sewer Auth., 176 A.3d at 394.
Based upon the evidence presented in this case, the trial court upheld
the Township’s municipal lien, reasoning:
We [] find that the Township has proven the existence of
a nuisance which originated on [Appellants’ P]roperty.
The bamboo from [Appellants’ P]roperty had fallen and
was completely blocking the stream and the inlet to the
Ridingers’ pond. The bamboo, which had originated on
[Appellants’ P]roperty, had also encroached several feet
onto the Ridinger[s’] land. The Ridingers had been forced
to clean the bamboo out of the [Creek] until it accumulated
to the point where they were unable to do so. The bamboo
in the [Creek] was two to three feet high and affected the
water levels of the pond and the Ridingers were unable to
get to the inflow of their pond due to the blockage.
19
This situation falls squarely within the definition of
nuisance as set forth in [the Ordinance]; the Ridingers
were subjected to annoyance and the disruption of the
legitimate enjoyment of their own property due to the
uncontrolled spread of the bamboo from [Appellants’
P]roperty and the blockage of the stream and the inlet to
their pond by the dead and decayed bamboo falling over
and into the stream. This condition was caused by
[Appellants’] failure to maintain and control the spread of
the bamboo on their [P]roperty onto the land of their
neighbors, the [Creek] bed, and the [Creek]. The
obstruction of the [Creek] endangered the health and
safety of others as it posed the danger of flooding of
neighboring properties. Despite these conditions being
clearly obvious and the notice given to [Appellants] by the
Township, [Appellants] denied any responsibility for the
problem and failed to take any remedial action.
....
Having established a prima facie case that the municipal
[C]laim and lien were filed in accordance with the
applicable law, the burden shifted to [Appellants] to prove
that the claims were erroneous. [Appellants] failed to
sustain that burden.
Trial Ct. Op. at 21-25 (italics added).
Although it did not make explicit witness credibility determinations,
the trial court clearly credited Long’s, Royer’s, Tyson’s, and the Ridingers’
testimony over Appellants’ testimony regarding whether the offending bamboo
originated from Appellants’ Property. Because substantial record evidence
supported the trial court’s findings, this Court cannot disturb them. See Warwick
Twp. Water & Sewer Auth. Accordingly, this Court agrees with the trial court that
Appellants failed to meet their burden of overcoming the Township’s prima facie
case and, thus, the trial court properly upheld the Township’s lien.
For all of the foregoing reasons, the trial court’s order is affirmed.
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
North Cornwall Township :
:
v. :
:
George D. Konevitch and :
Margaret M. Konevitch :
:
Appeal of: George D. Konevitch and : No. 17 C.D. 2022
Margaret M. Konevitch :
PER CURIAM ORDER
AND NOW, this 14th day of September, 2023, George D. Konevitch’s
and Margaret M. Konevitch’s Common Law Writ of Praecipe for Assignment of a
Standard Oral Argument of Fifteen (15) Minutes is DENIED.
The Lebanon County Common Pleas Court’s December 7, 2021 order
is AFFIRMED.