J. Kliesh v. Borough of Morrisville, R. Seward, Morrisville Borough School District

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Kliesh, :
Appellant :
:
v. : No. 1877 C.D. 2016
: Submitted: March 31, 2017
Borough of Morrisville, Robert :
Seward, Morrisville Borough :
School District :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: July 28, 2017
John Kliesh, proceeding pro se, appeals from the October 21, 2016 orders of
the Bucks County Court of Common Pleas (common pleas), which sustained the
Borough of Morrisville (Borough), Robert Seward, a Borough official, and the
Morrisville Borough School District’s (School District) Preliminary Objections
(POs) to the Complaint filed by Kliesh.1 On appeal, Kliesh argues that common
pleas erred because: (1) there were no orders filed based on the merits of the case;
(2) the orders were filed in violation of the Pennsylvania Code of Judicial Conduct;
1
Common pleas entered two orders: one sustaining Borough and Seward’s Preliminary
Objections (POs), and the other sustaining School District’s POs. Kliesh attached only the order
sustaining the Borough and Seward’s POs to his Notice of Appeal and brief. Kliesh claims that
he did not receive the second order sustaining School District’s POs, and for that reason was
unable to attach it to his Notice of Appeal. (Kliesh’s Br. at 28.) Because the order sustaining
School District’s POs was not attached to his Notice of Appeal, School District argues that
Kliesh’s appeal of that order was therefore untimely. Whether Kliesh received both orders is a
factual matter. Because common pleas addressed both orders in its opinion, the orders and POs
are the same, Kliesh’s arguments relate to both orders, and our analysis of both orders is the
same, we, like common pleas, will address both orders.
and (3) Kliesh is being stalked by the common pleas judge. Discerning no error,
we affirm.
Kliesh is the record owner of property located at 22 Delaware Avenue in
Morrisville Borough, Bucks County, Pennsylvania (Property), which he asserts has
been vacant since 2008 and is in need of major repairs. By letter dated April 22,
2016, Kliesh was notified that School District had filed a tax claim and placed a
lien on the Property for his failure to pay $2,040.31 in real estate taxes to the
School District for the year 2015. (C.R. at 1.)
This case was initiated when Kliesh filed a Complaint in common pleas on
June 21, 2016. Like common pleas, we also are constrained to agree “that it is
difficult to comprehend and ascertain Mr. Kliesh’s precise claims,” and will quote
the synopsis used by common pleas: “the Borough and the [School] District
committed tax fraud by violating the Pennsylvania Local Tax Collection Law [2]”
(Count I); “the Borough violated the protections afforded to Mr. Kliesh under the
[Fourteenth] Amendment to the United States Constitution by ignoring his Right[-
]to[-]Know requests” (Count II); “the Borough committed fraud by attempting to
collect by someone other than the tax collector, a tax for refuse collection” (Count
III); “the Borough deprived Mr. Kliesh’s right[s] under 42 U.S.C. [§] 1983 and
committed fraud by hiring a Building Inspector not certified by the Pennsylvania
[Uniform Construction Code] Board” (Count IV); “the [School] District committed
fraud by violating the Federal Debt Collection Act[3]” (Count V); and “the Borough
and the [School] District are fraudulently attempting to sell Mr. Kliesh’s property
in order to satisfy unpaid taxes” (Count VI). (Common Pleas’ Op. (Op.) at 2.)
2
Act of May 25, 1945, P.L. 1050, as amended, 72 P.S. §§ 5511.1-5511.42.
3
Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p.
2
Kliesh sought restitution in the amount of $2,000,000. (C.R. at 1.) The above
averments in the Complaint are based on School District’s attempts to collect the
unpaid real estate taxes on Kliesh’s Property. Kliesh claims that the Borough,
Seward, and School District have fraudulently imposed and attempted to collect
the unpaid real estate taxes on his Property, which he asserts is exempt from
taxation because it is unoccupied and uninhabitable.
The Borough and Seward filed POs to the Complaint, asserting, in relevant
part, that real property is not exempt from taxation merely because it is
unoccupied. School District separately filed POs asserting, inter alia, that it is
immune from Kliesh’s underlying tax fraud claims pursuant to what is commonly
known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S.
§§ 8541-8542. Both the Borough and Seward and School District filed briefs in
support of their POs. Kliesh then filed two replies in objection to each of the
briefs. By two orders dated October 21, 2016, common pleas sustained the
Borough, Seward, and School District’s POs and dismissed the Complaint with
prejudice. (C.R. at 13-14.)
Kliesh filed a 60-page motion for reconsideration, asserting that the common
pleas judge fraudulently filed the order sustaining the Borough and Seward’s POs
in violation of the Code of Judicial Conduct and has been “stalking” Kliesh. (C.R.
at 15.) School District filed a response in opposition to the motion. The next day,
before common pleas had ruled on the motion for reconsideration, Kliesh filed his
appeal to this Court, and common pleas4 ordered him to file a concise statement of
errors complained of on appeal (1925(b) Statement), pursuant to Rule 1925(b) of
4
The Pa. R.A.P. 1925(b) Order was signed by a different common pleas judge due to the
authoring common pleas judge’s absence from the bench on that date. (Op. at 3 n.2.)
3
the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b),5 which he
timely filed on December 2, 2016.
Common pleas issued an opinion,6 in which it explained that Kliesh “failed
to raise or articulate any meritorious issues on appeal.” (Op. at 3.) Specifically,
common pleas stated that Kliesh’s “1925(b) statement does not include any
substantive or procedural allegations that the trial court erred as to [its] orders of
October 21, 2016.” (Id.) In addition, common pleas found that Kliesh’s eight-
page 1925(b) Statement was akin to a “rant against the undersigned, described by
[Kliesh] as documentary evidence of this Court’s alleged intent to harass and harm
him.” (Id.) For these reasons, common pleas determined that all of Kliesh’s issues
on appeal should be deemed waived and that the appeal should be denied.
Common pleas then provided a brief explanation of its reasons for sustaining
the POs. Common pleas determined that School District’s POs were properly
sustained because it is immune from all tort liability under the Tort Claims Act.
(Id. at 4.) Regarding the Borough and Seward’s POs, common pleas found that
Counts I, V, and VI were properly sustained because, as a matter of law,
5
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure provides, in pertinent
part, as follows:
(b) Direction to file statement of errors complained of on appeal; instructions
to the appellant and the trial court.--If the judge entering the order giving rise
to the notice of appeal (“judge”) desires clarification of the errors complained of
on appeal, the judge may enter an order directing the appellant to file of record in
the trial court and serve on the judge a concise statement of the errors complained
of on appeal (“Statement”).
Pa. R.A.P. 1925(b).
6
The opinion was filed pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 1925(a).
4
unoccupied real property is not exempt from taxation. Common pleas also found
that the POs regarding Kliesh’s constitutional claims in Counts II and IV were
properly sustained because Kliesh failed to allege any facts that would support a
Section 1983 civil rights claim, and he also failed to exhaust the appeal procedures
regarding a Right-to-Know request. Regarding Count III, common pleas
determined that claim was barred by the doctrine of res judicata, which precludes
re-litigation of issues already adjudicated in a prior case, because Kliesh raised
those issues in a 2012 case. Lastly, common pleas determined that Count IV was
properly sustained because the Pennsylvania Construction Code Act7 does not
provide a private cause of action, and Kliesh also failed to exhaust the appeal
procedures under that law. (Id. at 4-5.) Common pleas again concluded that
Kliesh “fail[ed] to preserve any meritorious issues on appeal.” (Id. at 3, 5.) This
appeal followed.8
On appeal, Kliesh argues that there were no legal orders filed by common
pleas based on the merits of the case; the common pleas judge filed the orders in
violation of the Judicial Conduct Rules; and the common pleas judge has been
stalking him. The Borough, Seward, and School District contend that Kliesh
waived all issues on appeal, and even if meritorious issues were raised, relief is not
warranted.
We initially address whether Kliesh waived all issues on appeal, as asserted
by the Borough, Seward, and School District. In doing so, we note that we have
7
Act of Nov. 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-7210.1103.
8
Our “review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to a determination of whether that court abused its discretion or committed
an error of law.” Shields v. Council of Borough of Braddock, 111 A.3d 1265, 1268 n.4 (Pa.
Cmwlth. 2015) (citation omitted).
5
carefully read Kliesh’s brief and his reply brief, which are not easily understood.
We have also reviewed the Borough and Seward’s brief, as well as School
District’s brief, and we have thoroughly reviewed the record in this case. Our
independent review of the record reveals that Kliesh raised issues regarding the
legality of both the taxes on the Property and the orders filed by common pleas,
violations of the Code of Judicial Conduct, and stalking in his motion for
reconsideration, which would have been his first opportunity to raise such issues
before common pleas after its issuance of the October 21, 2016 orders. However,
his 1925(b) Statement does not raise any issue regarding the legality of the taxes
on the Property, focusing only on the three issues he has raised in this Court (no
legal orders were filed by common pleas; common pleas filed the orders in
violation of the Code of Judicial Conduct; and, the common pleas judge has been
“stalking” him). We will address these issues.
The first two issues can be addressed together. Kliesh first argues that
“[t]here has been no legal order filed based on the merits of the case.” (Kliesh’s
Br. at 26 (emphasis omitted).) Kliesh contends that the common pleas judge had
no personal jurisdiction over him and that the judge has not followed the rules of
court, or various provisions of the Constitution, asserting various errors regarding
docketing, mailing, the assignment of cases, motions being decided by different
judges, and the entry of the orders without an opinion. Second, Kliesh alleges that
the orders were filed in violation of Rule 2.7 of the Code of Judicial Conduct,
which provides that “[a] judge shall hear and decide matters assigned to the judge,
except where the judge has recused himself or herself or when disqualification is
required . . . .” (Kliesh’s Br. at 31-32.)
6
The errors Kliesh has described regarding, inter alia, common pleas’
issuance of the two orders are not supported by the law. For example, Kliesh
contends that filing the orders without opinion “is [p]roof that [the common pleas
judge] has NO [l]egal [s]upport for his actions.” (Kliesh’s Br. at 27). However,
Judges routinely enter orders without opinions; there would be little need for Rule
1925 of the Pennsylvania Rules of Appellate Procedure, otherwise. Kliesh also
makes a number of factual allegations for which there is no support in the record.
It is clear that, as common pleas emphasized in its opinion, Kliesh fundamentally
misunderstands the way our court system operates. In this regard, we note that it is
not uncommon for different motions in a case to be heard and decided by different
judges, especially due to the volume of work of the courts or even a judge’s
unavailability at the time a motion is received, and that dockets typically do not
include the internal assignment, or reassignment, of motions or objections to
judges. Here, Kliesh relies upon the common pleas docket as support for his
allegations that the common pleas judge did something improper to receive the
assignment; however, all the docket indicates is that this case was assigned to the
common pleas judge for disposition on July 28, 2016. As a result, the case file was
transferred to that judge, and he rendered a decision. Although the procedure in
this case may not have been what Kliesh anticipated, it is not constitutionally
infirm. Common pleas thus did not err procedurally in its issuance of the two
orders in this case, nor did the judge err by deciding the case to which he was
assigned.
Lastly, Kliesh alleges that the common pleas judge is biased against him and
is “stalking” him. It appears that he bases these allegations on the common pleas
judge’s assignment to a previous case involving Kliesh and believes that the judge
7
was required to recuse himself in this case as a result. However, just because a
judge has heard a previous case involving a certain litigant does not preclude him
from hearing future cases involving the same litigant. All judges take the same
oath of office and are selected by the voters of this Commonwealth to hear the
cases that have come before them in an impartial manner no matter the particular
litigants involved. Moreover, the fact that Kliesh disagrees with the common pleas
judge’s decision in a previous case, as well as in this case, does not establish bias,
nor does it support Kliesh’s stalking allegations.9
Therefore, because there is no support in the record for any of Kliesh’s
allegations on appeal, we conclude that common pleas did not err or abuse its
discretion in sustaining the Borough, Seward, and School District’s POs.
Accordingly, the orders of common pleas are affirmed.
9
The genesis of this action seems to have been Kliesh’s belief that the Property was
unlawfully taxed with harmful consequences. However, aside from passing references, he does
not raise the taxation of the Property as an issue on appeal. Kliesh has not cited any legal
authority for the proposition that uninhabitable property is exempt from taxation, nor that the
taxation of real property is dependent on whether such property is “occupied,” and we are not
aware of any.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John Kliesh, :
Appellant :
:
v. : No. 1877 C.D. 2016
: Submitted: March 31, 2017
Borough of Morrisville, Robert :
Seward, Morrisville Borough :
School District :
PER CURIAM ORDER
NOW, July 28, 2017, the orders of the Bucks County Court of Common
Pleas, entered in the above-captioned matter, are AFFIRMED.