Borough of Phoenixville v. R.J. Puleo L.B. Puleo

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Phoenixville :
:
v. : No. 1083 C.D. 2018
: Argued: April 11, 2019
Richard J. Puleo Lorraine B. Puleo, :
:
Appellants :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge (P)
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: May 2, 2019
Richard J. Puleo and Lorraine B. Puleo (collectively, Landowners)
appeal, pro se,1 the order of the Chester County Court of Common Pleas (trial
court) entering judgment in favor of Borough of Phoenixville (Borough) and
1
Although Richard J. Puleo entered his appearance in the trial court as counsel for
Lorraine B. Puleo, see Certified Record (C.R.) Docket Entry No. 21, he has not entered his
appearance in this Court. As a result, we take notice that Landowner Richard J. Puleo is a
member of the Pennsylvania Bar. See, e.g., People v. Austin, 451 N.E.2d 593, 595-96 (Ill. App.
Ct. 1983) (“A court is presumed to know its officers, and all public officials in civil affairs
within its jurisdiction. Not only may this court notice [a judge’s] position on the bench within
the bounds of the [court’s jurisdiction], but the court may also notice the judge’s former civil
office as a public defender, or his status as a member of the bar and officer of the court.”)
(citations omitted). See also Rule 201(b) of the Pennsylvania Rules of Evidence, Pa. R.E. 201(b)
(“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . is
generally known within the trial court’s territorial jurisdiction [or] can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”).
against Landowners for want of sufficient defense pursuant to the provisions of
what is commonly referred to as the Municipal Claims and Tax Liens Act (Tax
Liens Act).2 We vacate and remand.
On September 22, 2016, the Borough filed a municipal claim of
$33,638.29 for delinquent water, sewage, and trash fees for the years 2014-2015,
against Landowners’ property, Kenalcon Apartments, located at 1 Kenalcon Drive
in the Borough. Reproduced Record (R.R.) at 14. Attached to the claim is a
certificate stating that the claim was served on Landowners by first class mail. On
June 16, 2017, the Borough filed a writ of scire facias (sci fa).3 Id. at 16-18.4 On
2
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7455.
3
Section 4 of the Tax Liens Act states, in pertinent part, that “[t]he lien for . . . water
rates, . . . sewer rates, or rates for any other service furnished by a municipality,—shall exist in
favor of, and the claim therefor may be filed against the property thereby benefitted by, the
municipality extending the benefit . . . .” 53 P.S. §7107. The issuance of a writ of sci fa
constitutes original process and serves the dual purposes of a summons and a complaint to
commence such an action. Borough of Ambler v. Regenbogen, 713 A.2d 145, 148 (Pa. Cmwlth.
1998). A sci fa proceeding is an action in rem and the purpose of a writ of sci fa is to warn
landowners of the existence of a claim so that they may make known any defenses and show
why the property should not be under judicial subjection of a municipal lien and reduced to
judgment. Id. As this Court has explained:
In Pennsylvania a writ of [sci fa] is purely statutory. Procedures
under [the Tax Liens Act] are unusual in several respects. First,
Section 3(a) of the [Tax Liens Act], 53 P.S. §7106(a), declares that
all lawfully assessed or imposed municipal “claims” are “liens”
upon the property that arise when lawfully imposed and assessed.
The assessment and imposition of the lien occur without any form
of hearing. A [sci fa] proceeding is an action in rem, but the
imposition of a new lien upon property obviously has a significant
effect on the property rights of the owner . . . .
If the owner does not dispute the claim and assessment, the owner
simply pays and removes the lien. If the owner does dispute the
claim, the [Tax Liens Act] provides no mechanism for a direct
(Footnote continued on next page…)
2
(continued…)
“appeal.” Instead, to contest the claim or amount of assessment
and to force the issue to an original hearing, the owner may file
and serve a notice upon the claimant municipality to issue a [sci
fa]. In the proceeding commenced by the writ of [sci fa], the
owner then files an “affidavit of defense.” In that affidavit the
owner may raise all defenses that he or she has to the municipal
claim. Alternatively, the municipality may pursue a writ of [sci fa]
without waiting for prompting from the owner, which is what
occurred in the present case. Either way, there is no requirement
that the owner “appeal” within a specified period from the initial
filing of the municipal claim or forever forego the right to
challenge it.
Therefore, the precise effect of the procedure renders the
proceeding in common pleas court the owner’s “appeal” even
though the municipality is the moving party. Regardless of which
party seeks the writ of [sci fa] to force the matter to a hearing, the
owner’s initial refusal to pay and subsequent filing of an affidavit
of defense constitute an “appeal” from the local agency
adjudication of the imposition of the lien.
Shapiro v. Center Township, 632 A.2d 994, 997-98 (Pa. Cmwlth. 1993) (citations and footnotes
omitted).
4
The writ stated the following, in relevant part:
The amount set forth above reflects the balance due as of the date
of the filing of the lien. It does not include any costs or attorney
fees added, interest accrued, or credits for payments applied after
the date of the filing of the lien. The balance due as of the date of
the preparation of this Writ of [Sci Fa] is $36,215.07. This balance
is subject to change if additional costs or attorney fees are added or
credits for payments are applied after the date of the preparation of
the Writ of [Sci Fa]. Additionally, interest accrues on a daily
basis.
R.R. at 17.
3
July 26, 2017, Landowners filed an Affidavit of Defense to the writ5 and a Motion
to Strike the writ, alleging: (1) the writ is defective on its face and fraudulent
because they were never served with the claim or an invoice, the writ is not
verified, it was wrongfully served on a non-owner of the property, and the writ
5
Section 14 of the Tax Liens Act provides, in relevant part:
Any defendant named in the claim . . . may, at any stage of the
proceedings, present his petition, under oath or affirmation, setting
forth that he has a defense in whole or in part thereto, and of what
it consists; and praying that a rule be granted upon the claimant to
file an affidavit of the amount claimed by him, and to show cause
why the petitioner should not have leave to pay money into court;
and, in the case of a municipal claim, to enter security in lieu of the
claim; whereupon a rule shall be granted as prayed for. Upon the
pleadings filed, or from the claim and the affidavit of defense, and
without a petition where an affidavit of defense has been filed, the
court shall determine how much of the claim is admitted or not
sufficiently denied; and shall enter a decree that upon payment by
such petitioner to the claimant of the amount thus found to be due,
with interest and costs if anything be found to be due, or upon
payment into court, if the claimant refuses to accept the same, and
upon payment into court of a sum sufficient to cover the balance
claimed, with interest and costs, or upon the entry of approved
security in the case of a municipal claim, that such claim shall be
wholly discharged as a lien against the property described therein,
and shall be stricken from the judgment index. Thereafter the
material, disputed facts, if any, shall be tried by a jury, without
further pleadings, with the same effect as if a writ of [sci fa] had
duly issued upon said claim, to recover the balance thereof; but the
jury shall be sworn to try the issues between the claimant and the
parties who paid the fund into court or entered security, and
verdict, judgment and payment, or execution, shall follow as in
other cases.
53 P.S. §7182. See also Roethlein v. Portnoff Law Associates, Ltd., 81 A.3d 816, 818 n.3 (Pa.
2013) (“After the lienholder issues the writ, the owner may file an affidavit, pursuant to 53 P.S.
§7182, raising defenses to the lien, such as actual payment of taxes, a defective claim or lien,
fraud, or lack of process or notice.”) (citation omitted).
4
fails to itemize or substantiate the amount that they purportedly owe or the services
that were purportedly performed; (2) the Borough charged Landowners for trash
fees in excess of the fees in neighboring municipalities and for vacant units for
which service was not provided; (3) the Borough denied Landowners’ request to
use a dumpster service to reduce the trash fees incurred, which constitutes an
unreasonable restraint on trade and is illegal; (4) the fees are illegal because the
Borough never filed notices of delinquency and Landowners’ tenants are solely
responsible for the fees under their leases; (5) Borough failed to properly verify or
serve the writ and the Borough’s actions violate the Fair Debt Collection Act, 15
U.S.C. §§1692-1692p; and (6) they never agreed to pay for the trash services
allegedly rendered, the Borough failed to apply Landowners’ payments, and/or the
Borough miscalculated the amounts due. R.R. at 22-29.
Landowners also filed a $75,000.00 counterclaim asserting that the
writ was issued in bad faith and filed without verifying the amount due, and that
the Borough permitted its counsel to file the writ causing a slander to Landowners’
title. R.R. at 29-30. Finally, Landowners filed a $75,000.00 cross-claim against
the Borough’s counsel and her firm, contending that counsel was negligent in
failing to verify the debt owed and the validity of the writ prior to its filing. Id. at
30-32.
On August 15, 2017, the Borough filed a brief in support of
preliminary objections to Landowners’ counterclaim, cross-claim and Motion to
Strike,6 asserting that the Tax Liens Act sets forth the statutory in rem procedure to
6
As the trial court stated:
We note at the outset that [the Borough] indicates that it filed
Preliminary Objections on or about August 14, 2017. The Docket
(Footnote continued on next page…)
5
collect delinquent municipal claims to which the Pennsylvania Rules of Civil
Procedure do not apply,7 and the Tax Liens Act does not provide for such filings.
Id. at 46-55.
On September 27, 2017, the trial court denied Landowners’ Motion to
Strike, holding that Landowners were properly served with the writ of sci fa. R.R.
at 83-84.8 That same day, the trial court sustained the Borough’s preliminary
(continued…)
does not reflect any such filing. Thus, we have only a brief in
support of [the Borough’s] Preliminary Objections. We will
nevertheless address the merits of the Preliminary Objections as set
forth in the supporting brief.
R.R. at 81. Nevertheless, the pleading filed on August 15, 2017, that is contained in both the
Certified Record, see C.R. Docket Entry No. 6, and the Reproduced Record, see R.R. at 46-55, is
styled as preliminary objections to Landowners’ counterclaim, cross-claim and Motion to Strike.
The Certified Record also contains a separate brief that the Borough filed on September 5, 2017,
in support of the preliminary objections, see C.R. Docket Entry No. 7, and Landowners’ brief in
response to the preliminary objections that was filed on September 18, 2017. See C.R. Docket
Entry No. 8.
7
See Shapiro, 632 A.2d at 999 (“[I]n the present case the proceeding in common pleas
court on the writ of [sci fa] was a statutory appeal or, in any event, was a proceeding to which the
Rules of Civil Procedure do not apply.”).
8
The trial court expressed its reasoning as follows:
[Landowners] allege that they were never served with the claim.
In fact, [Landowners] assert that they only became aware of the
action on or about July 14, 2017, nearly one year after the action
commenced, when the sheriff served a Writ of [Sci Fa] upon them.
[Landowners] contend that, even though they were served by the
sheriff, their address given to the sheriff was incorrect and it was
only because the sheriff knows [Landowners] that service was
effectuated. Finally, [Landowners] contend that service was
improper as the Writ was served upon Joanna Puleo, who is not the
owner of the real property.
(Footnote continued on next page…)
6
objections and dismissed Landowners’ counterclaim and cross-claim, holding that
they are “both procedurally and substantively improper” because the Tax Liens Act
“is a statutory remedy which does not permit the filing of cross- and
(continued…)
From our review of the docket, it appears that counsel for [the
Borough] filed a Certificate of Service on September 22, 2016,
certifying that the municipal lien claim was served upon
[Landowners] via first class mail. However, the Writ of [Sci Fa]
filed on June 16, 2017 was served upon [Landowners] by the
sheriff on July 14, 2017. Specifically, the sheriff’s return indicates
that service was made by personal service upon Joanna Puleo at 27
Nutt Road, Phoenixville, Pennsylvania. The sheriff’s return also
provides that [Landowner] Lorraine Puleo was served by the
sheriff at the address of 40 Woodfield Crossing, Lancaster,
Pennsylvania.
Based upon the record before this Court, it appears [the Borough]
has complied with the Rules of Civil Procedure regarding service
of original process of the Writ of [Sci Fa]. [Landowners] make[]
no allegation that Joanna Puleo is not an adult member of [their]
family or that she does not reside at the property; [they] only
allege[] that she is not the owner of the property. As a result,
service upon Joanna Puleo as an adult member of the family with
whom [Landowner] Richard Puleo resides constitutes permissible
service under Pa. R.C.P. [No.] 402(a)(2)(i). Further, although the
sheriff’s return contains an allegedly incorrect address, there is no
dispute that [Landowners] were actually served by the sheriff; thus,
it makes no difference whether the address is correct or incorrect.
It is clear to this Court that [Landowners] have been put on notice
of the municipal lien claim and are pursuing efforts to defend
against it. Accordingly, there is no basis upon which to strike the
Writ of [Sci Fa].
R.R. at 83-84.
7
counterclaims,” and only permits Landowners “to file an Affidavit of Defense,
which they have done.” Id. at 81-82.9
On February 14, 2018, the Borough filed a Motion for Judgment for
Want of Sufficient Affidavit of Defense,10 alleging that Landowners’ Affidavit of
Defense fails to set forth “certain and definite” facts that are sufficient to deny the
9
The trial court determined that the underlying claims were without merit, explaining:
To set forth a valid cause of action for professional negligence (or
legal malpractice), a plaintiff must plead: (1) the employment of
the attorney or other basis for his duty to act as an attorney; (2) the
failure of the attorney to exercise ordinary skill and knowledge;
and (3) that such negligence was the proximate cause of damage to
the plaintiff.
Here, the claim fails on the first prong as [Landowners] cannot
establish that [counsel] or [her firm] was employed by [the
Borough] in an attorney-client relationship nor have they pleaded a
viable alternative basis for a duty owed by [counsel] to
[Landowners]. To the contrary, they allege that [counsel] and [her
firm] were engaged by [the Borough] to file Writ of [Sci Fa]
against [Landowners]. Moreover, [Landowners] allege that the
Rules of Civil Procedure and/or Professional Conduct impose
certain duty on attorneys. In this Commonwealth, a violation of
Rules of Professional Conduct by itself cannot form the basis for a
legal malpractice claim. By extension, were Pennsylvania courts
to allow legal malpractice claims arising out of a mere violation of
the rules of civil procedure, the courts would be overwhelmed.
Indeed, were this law, [Landowner] Richard Puleo would have
opened himself up to a malpractice claim because of his failure to
follow the rules as set forth above. Thus, [Landowners’]
Counterclaim/Cross-claim fail[] as a matter of law.
R.R. at 82.
10
See Section 19 of the Tax Liens Act, 53 P.S. §7271 (“If an affidavit of defense be filed,
a rule may be taken for judgment for want of sufficient affidavit of defense, or for so much of the
claim that is insufficiently denied, with leave to proceed for the residue.”).
8
averments regarding the amount owed in the writ of sci fa as inaccurate or
fraudulent. See Borough of Fairview v. Property Located at Tax Index No. 48-67-
4, 453 A.2d 728, 730 (Pa. Cmwlth. 1982) (“An affidavit of defense to a scire facias
sur municipal lien claim must be certain and definite.”). R.R. at 121. The
Borough argued that in Municipal Authority of the Borough of Harvey’s Lake v.
Yuhas, 572 A.2d 1291, 1294 (Pa. Super. 1990), the property owners “merely
point[ed] to copies of prior bills, which list[ed] various amounts of interest and
penalties as evidence that the amounts are incorrect” and did not explain how the
charges were inaccurate. R.R. at 122-123. The Borough contended that under
Yuhas, it “was the property owners’ responsibility to identify how the specific
charges were inaccurate” and that this lack of specificity, as in the instant matter,
did not satisfy the requirement that Landowners’ Affidavit of Defense be “clear
and definite.” R.R. at 123.
Regarding Landowners’ claim that the trash fees imposed were
excessive and for unoccupied rental units, the Borough argued that in Newberry
Township v. Stambaugh, 848 A.2d 173, 176 (Pa. Cmwlth. 2004), this Court held
that a property owner is required to pay trash fees even if it is undisputed that no
trash was generated. R.R. at 121. In that case, this Court affirmed a trial court’s
grant of a motion for judgment for want of a sufficient affidavit, relying on
Township of West Manchester v. Mayo, 746 A.2d 666, 670 (Pa. Cmwlth. 2000), in
which we stated, “[E]ven if a resident does not generate any refuse or waste, the
resident is still responsible for any service fee or charge lawfully imposed by a
municipality for the collection and disposal of refuse.” R.R. at 121. The Borough
asserted that “[u]nder the holdings of Mayo and Stambaugh, [] it is clear that
9
[Landowners] must pay the trash fees even if it is true that some of their
apartments were vacant and generated no trash.” R.R. at 121.
Regarding Landowners’ claim that the trash fees imposed were
excessive because they sought to use a dumpster service, the Borough argued that
in Mayo, 746 A.2d at 671, this Court held, “All residents, regardless of how they
personally choose to dispose of their refuse, receive a benefit in the collection and
disposal of refuse from other premises in the community.” R.R. at 121-122
(citation omitted). The Borough asserted, “The Mayo Court’s adoption of this
holding makes clear that even if [Landowners] had been permitted to use an
alternative trash service, they would still be responsible for paying the fees
assessed by the Borough.” R.R. at 122.
Regarding Landowners’ claim that the leases on their rental units
transferred their duty to pay the trash fees, the Borough noted that in City of
Philadelphia v. Perfetti, 119 A.3d 396, 400 (Pa. Cmwlth. 2015), appeal denied,
131 A.3d 493 (Pa. 2016), this Court held, “Scire facias is an in rem proceeding in
which a lien is placed on the property receiving municipal services.” R.R. at 122.
The Borough argued that under Perfetti, “[p]roperty owners, as defined in [Section
1 of the Tax Liens Act,] 53 P.S. §7101, are responsible for the payment of
municipal claims,” and we held in Perfetti, 119 A.3d at 400, that “‘the sole and
primary duty for the payment of this charge is that of the owner,’” and that “‘[a]ny
delegation of this duty does not relieve the owner without the consent of the party
to whom the duty is owed . . . .’ Id. (citation omitted).” R.R. at 122. The Borough
asserted that “[h]ere, the Borough has not consented to [Landowners’] delegation,”
and “[a]s a result, [Landowners] are responsible for the fees assessed to the
property.” Id. Based on the foregoing, the Borough asked the trial court to enter
10
judgment in its favor, and against Landowners, for $37,601.55, “plus any
additional charges, expenses, or fees that are incurred . . . including reasonable
attorney fees, and future interest at a rate of 10%,” based “on the principal balance
of $31,739.45 dating from January 22, 2018.” R.R. at 123.
On February 28, 2017, Landowners filed a response to the Borough’s
motion, again asserting that they were never served with the Borough’s claim for
unpaid water, sewer, and trash fees for the years 2014-2015, and that the claim is
inaccurate, fraudulent, and without merit. C.R. Docket Entry No. 13. Specifically,
Landowners asserted that they paid $58,259.54 in unpaid water, sewer, and trash
fees for the property, and $5,371.59 in Borough taxes, as of a June 19, 2015
settlement of a refinancing of the property. Id. In support, Landowners attached as
an appendix a Settlement Statement reflecting this payment. Id.11
On April 23, 2018, the trial court issued an order entering judgment in
the Borough’s favor, and against Landowners, “in the amount of $37,601.55, plus
interest accruing at a rate of 10% per annum on the principal balance of $31,739.45
dating from January 22, 2018.” C.R. Docket Entry No. 14; R.R. at 147. On April
30, 2018, the Borough filed a Praecipe for Judgment based on the trial court’s
order. C.R. Docket Entry No. 15.
On May 1, 2018, Landowners filed a Motion for Reconsideration of
the trial court’s order again alleging, inter alia, that the invoices for the fees were
sent to the wrong address and in the incorrect amount, and that they were paid as
evidenced by the Settlement Statement. R.R. at 149-150. As a result, Landowners
asserted, the writ of sci fa “was and is defective on its face” and argued that “[a]t
11
Landowners also attached a July 25, 2011 Settlement Statement stating that they paid a
$29,843.00 balance in water, sewer, and trash fees as of that date. C.R. Docket Entry No. 13.
11
the very least, [the Borough] should not be entitled to interest for 300 days since
[it] failed to serve or otherwise provide [Landowners] with the Municipal Claim.”
Id. at 150, 151.
On May 21, 2018, the Borough filed a response to Landowners’
reconsideration request, conceding that Section 19 of the Tax Liens Act, 53 P.S.
§7271, provides, “a rule may be taken for judgment for want of sufficient
affidavit of defense, or for so much of the claim as is insufficiently denied,” but
that the Borough did not attach a proposed rule to its Motion for Judgment for
Want of Sufficient Affidavit of Defense. R.R. at 200 (emphasis in original). The
Borough also conceded that, “[t]o the extent that the entry of judgment resulted
from a Rule not being issued, [it] does not object to the judgment being vacated
without prejudice to [its] right to refile its request for judgment with a rule
attached.” Id. Importantly, the Borough also conceded that the amount of
judgment entered is incorrect stating, “in its proposed order, which was approved
by the [trial court], the Borough listed the interest bearing amount as $31,739.45,
when in reality it is $27,567.64,” and that “to the extent the judgment stands the
order granting it should be amended to change the interest bearing amount from
$31,739.45 to $27,567.64.” Id. at 200, 201.
On May 23, 2018, Landowners filed the instant appeal of the trial
court’s April 23, 2018 order entering judgment in the Borough’s favor and against
them in the amount of $37,601.55, plus annual interest at 10% on the principal
balance of $31,739.45, dating from January 22, 2018. C.R. Docket Entry No. 18;
R.R. at 202.12 Although Landowners filed the appeal to the Superior Court, that
12
Our scope of review in municipal lien cases is limited to determining whether the trial
court abused its discretion or committed an error of law, or whether constitutional rights were
(Footnote continued on next page…)
12
court transferred the matter to this Court by August 10, 2018 order. See Section
5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a) (“If an appeal . . . is taken to . . .
a court . . . which does not have jurisdiction of the appeal or other matter, the court
. . . shall not quash such appeal or dismiss the matter, but shall transfer the record
thereof to the proper tribunal . . . .”).
Landowners raise a number of claims in this appeal.13 However, as a
preliminary matter, the Borough contends that the appeal should be dismissed
because Landowners’ appellate brief violates Rule 2119(a) of the Pennsylvania
Rules of Appellate Procedure, Pa. R.A.P. 2119(a),14 in that the argument portion of
the brief fails to cite any relevant legal authority or adequately develop any of the
(continued…)
violated. Dreibelbis v. State College Borough Water Authority, 654 A.2d 52, 54 n.1 (Pa.
Cmwlth. 1994). “Discretion is abused when, in reaching its conclusion, the trial court departs
from or misapplies the law or the judgment it exercises is manifestly unreasonable as shown by
the evidence of record.” SAS, Inc. v. Pennsylvania State Police, 638 A.2d 455, 458 n.6 (Pa.
Cmwlth. 1994).
13
Specifically, Landowners claim that the trial court erred and abused its discretion by:
(1) failing to conduct a trial or hold a hearing to address the Affidavit of Defense or the
underlying municipal claim; (2) accepting the writ of sci fa without requiring any evidence or
proof as to the amounts claimed; (3) accepting the writ of sci fa without verification or other
sworn testimony; (4) failing to accept the claims raised in the Affidavit of Defense as valid
defenses to the municipal claim; (5) allowing the Borough to claim that Joanna Puleo had an
ownership in the real estate to which the municipal claim applies; (6) allowing the municipal
claim to stand when it was never sent to or served upon Landowners; (7) failing to grant
Landowners’ Motion for Reconsideration because the Borough acknowledged that the amount of
the claim was incorrect; (8) allowing the judgment to stand because the Borough acknowledged
that the amount of the claim was incorrect; and (9) dismissing Landowners’ counterclaims and
cross-claims without a hearing or trial. Brief of Appellants at 3-4.
14
Pa. R.A.P. 2119(a) states, in relevant part, “The argument shall be divided into as many
parts as there are questions to be argued; and shall [be] followed by such discussion and citation
of authorities as are deemed pertinent.”
13
issues that are raised on appeal. Although the argument portion of Landowners’
brief is exceedingly brief, consisting of only three paragraphs, it is possible to
glean from that argument sufficient support for some of the claims that
Landowners raise on appeal. Accordingly, we will not accede to the Borough’s
request to dismiss this appeal outright. See, e.g., Rapid Pallet v. Unemployment
Compensation Board of Review, 707 A.2d 636, 638 (Pa. Cmwlth. 1998)
(“Employer’s argument minimally develops the first and fifth issues raised by it
[on appeal. . . . Therefore, we] will only address the first and fifth issues raised by
Employer.”).
Specifically, Landowners argue on appeal that the trial court erred in
entering judgment, or in failing to grant reconsideration, because the Borough has
conceded that the amount of the judgment is incorrect. Indeed, as noted above, in
its response to Landowners’ reconsideration request, the Borough conceded that
the amount of judgment entered is incorrect stating, “in its proposed order, which
was approved by the [trial court], the Borough listed the interest bearing amount as
$31,739.45, when in reality it is $27,567.64,” and that “to the extent the judgment
stands the order granting it should be amended to change the interest bearing
amount from $31,739.45 to $27,567.64.” R.R. at 200, 201.15
15
With respect to a rule issued under Section 19, as this Court has explained, “A rule for
judgment for insufficient affidavit of defense may be discharged where the appellate court thinks
it advisable that the case go to trial so that the facts may be more fully developed and passed
upon.” Western Clinton County Municipal Authority v. Estate of Rosamilia, 826 A.2d 52, 57
(Pa. Cmwlth. 2003) (citation omitted). In entering judgment in the instant matter, the trial court
failed to address Landowners’ assertion that the Borough’s claim for unpaid water, sewer, and
trash fees for the years 2014-2015, was satisfied when they paid $58,259.54 in unpaid water,
sewer, and trash fees as evidenced by the June 19, 2015 Settlement Statement signed during the
refinancing of the property. See C.R. Docket Entry No. 13. See also Atlas Credit Corporation v.
Dolbow, 165 A.2d 704, 709 (Pa. Super. 1960) (“‘Subject to general equitable considerations,
equitable relief from a valid judgment will be given to a party thereto if circumstances arise after
(Footnote continued on next page…)
14
Accordingly, the trial court’s order is vacated, and the matter is
remanded to that court to reconsider the amount of the judgment entered in favor
of the Borough of Phoenixville, and against Richard J. Puleo and Lorraine B.
Puleo.16
MICHAEL H. WOJCIK, Judge
(continued…)
the judgment is rendered which make it inequitable to enforce the judgment against him.’”)
(citations omitted).
16
Any remaining claims raised by Landowners in this appeal have been waived due to
the deficiencies in their appellate brief. Pa. R.A.P. 2119(a); Commonwealth v. Spotz, 716 A.2d
580, 585 n.5 (Pa. 1998), cert. denied, 526 U.S. 1070 (1999) (the failure to develop issue in an
appellate brief results in waiver).
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Phoenixville :
:
v. : No. 1083 C.D. 2018
:
Richard J. Puleo Lorraine B. Puleo, :
:
Appellants :
ORDER
AND NOW, this 2nd day of May, 2019, the Borough of Phoenixville’s
Application to Dismiss Appeal and to Suspend Briefing Schedule is DENIED. The
order of the Chester County Court of Common Pleas dated April 23, 2018 is
VACATED, and the matter is REMANDED to that court to reconsider the amount
of the judgment entered in favor of the Borough of Phoenixville, and against
Richard J. Puleo and Lorraine B. Puleo.
Jurisdiction is RELINQUISHED.
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MICHAEL H. WOJCIK, Judge