Warwick Twp. Water and Sewer Authority v. Warwick Realty Co., L.P.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Warwick Township Water and :
Sewer Authority :
:
v. : No. 1831 C.D. 2016
: Argued: October 19, 2017
Warwick Realty Co., L.P., :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: December 7, 2017
Warwick Realty Co., L.P. (Realty) appeals an order of the Court of
Common Pleas of Bucks County (trial court) entering judgment in favor of the
Warwick Township Water and Sewer Authority (Authority) for two municipal
claims together with interest and attorney fees. Realty asserts that the record does
not support the trial court’s conclusion that the Authority properly assessed Realty
for its water and sewer use and, further, there was no basis for an award of attorney
fees. For the following reasons, we affirm.
Background
The facts are undisputed. Realty owns property at 1621 Mearns Road,
Warwick Township, Bucks County, Pennsylvania, which was created out of a tract
of land known as the Mearns Road Business Campus (Business Campus). Prior to
2003, the Business Campus had a tax parcel identification of No. 51-13-62. In 2003,
Mearns Road Business Campus, L.P. subdivided the Business Campus into five lots.
“Lot 1,” later conveyed to Realty, retained Business Campus’ tax identification
number, and the other four new lots received new tax designations. Two industrial
condominiums were later developed on Lot 2; Lots 3, 4 and 5 remain undeveloped.
Beginning in the 1990s, Mearns Road Business Campus, L.P. operated
an ice skating rink on Lot 1, using a private water well and a septic system. In July
2006, the rink was connected to the Authority’s water and sewer system. To
determine a customer’s tapping fee, the Authority uses Equivalent Dwelling Units
(EDU) to measure water use. The tapping fee is $4,500 per EDU for water usage
and $6,300 per EDU for sewer usage. The Authority assesses one EDU for 270
gallons of daily usage.1
On August 31, 2006, Realty purchased Lot 1 and continued to operate
the skating rink. During the last quarter of 2006, Realty used 96,000 gallons of
water, which equates to 3.95 EDUs. Thereafter, Realty’s water usage increased to
9.67 EDUs. By the end of the first quarter of 2009, its water usage reached 11.15
EDUs.
On April 22, 2009, the Authority informed Realty by letter that the
water and sewer usage on Lot 1 exceeded its initial assessment of 3.06 EDUs. The
letter stated as follows:
This letter is to serve notice that the Warwick Ice Rink located at
the Mearns Road Business Campus is exceeding the water and
sewer usage as allocated in the original PA DEP [Department of
Environmental Protection] planning module submission dated
October 29, 1998 and approved by the Authority.
1
To calculate tapping fees, the Authority first divides a customer’s quarterly water usage by 90
days to determine the per day gallon usage. The Authority then divides that figure by 270 gallons
per day to determine the total number of EDUs to be allocated. Finally, the Authority multiplies
the total number of EDUs by the cost per EDU to determine the total amount of tapping fees owed.
Realty Brief at 10.
2
The skating rink (Lot #1) was appropriated 825 gallons per day
(GPD) or 3.06 EDU’s during the planning and land development
process. The average daily usage over the last three quarters is
1861 GPD (6.89 EDU’s). The first quarter usage for 2009 has
exceeded 11.15 EDU’s or 3011 GPD.
Reproduced Record at 256a (R.R. __) (emphasis added).
On April 28, 2014, the Authority sent Realty another letter stating that,
following an audit of Realty’s water and sewer history, the Authority determined as
follows:
[A]n additional eight (8) E[DU]’s are needed for [Lot 1] … based
on an average usage for the past two (2) years….[2] This would
bring [Realty’s] total allocation to eleven (11) EDU’s. The
Authority has the right to assess the EDU allocation based on the
highest quarterly average which is currently fifteen (15) EDU’s.
We have taken a conservative approach in our analysis and
assignment of [Realty’s] previous metered usage (copy attached)
and EDU allocation and therefore the invoice dated April 7, 2014
remains outstanding for this property.
R.R. 197a.
Realty responded that the Authority had assigned 11 EDUs to Lot 1
and, therefore, it could not owe the additional eight EDUs. In support, Realty noted
that on October 29, 2002, Mearns Road Business Campus, L.P., entered into an
agreement with the Authority for the acquisition of 11 EDUs from the Authority.
Realty further explained:
This was confirmed with the developer, Ed Dudlik of the Mearns
Road Business Campus L.P. at the time in which we had acquired
the property in 2006. In the Agreement of Sale, all rights, titles,
2
Pursuant to the Municipality Authorities Act, 53 Pa. C.S. §§5601-5623, a municipal authority
has the right to assess additional EDUs as water and sewer usage increases. See 53 Pa. C.S.
§5607(d)(24)(i)(C)(I) (“An authority may … impose additional capacity-related tapping fees on
specific groups of existing customers such as commercial and industrial customers in conjunction
with additional capacity requirements of those customers.”).
3
and interests to all EDUs and tap fees were transferred at the time
of our acquisition of the property.
R.R. 200a. The Authority replied that its 2002 agreement with Mearns Road
Business Campus, L.P., did not have “any bearing upon the skating rink.” R.R. 202a.
The Authority further advised, “[f]ailure to comply with the appropriate payment
will cause the filing of a municipal lien and consideration of a subsequent
termination of Authority services to the skating rink.” Id.
On October 24, 2014, the Authority informed Realty that it was
increasing the EDU assessment of Lot 1 from 11 EDUs to 15 EDUs:
Additionally, based upon further review of the Warwick Ice Rink
records, the applicable EDUs for the facility should be set at 15
rather than the previous indication of 11. Based upon this
revision of EDU charges, a statement from the Authority will be
forthcoming regarding additional fees (water and sewer) at Four
Thousand Five Hundred ($4,500.00) Dollars and Six Thousand
Three Hundred ($6,300.00) Dollars per EDU respectively. Such
additional tapping fees are required to be paid within sixty (60)
days of the subject statement.
The originally charged payment of Eighty-six Thousand Four
Hundred ($86,400.00) Dollars (for the original additional eight
(8) EDUs) remains unpaid and is in the process of appropriate
action.
R.R. 220a-221a (emphasis added).
Realty did not pay the additional tapping fees. On October 27, 2014,
the Authority filed a municipal claim pursuant to what is commonly referred to as
the Municipal Claims and Tax Liens Act (Municipal Claims Act)3 against Lot 1 for
3
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7505. In Pennsylvania, municipal
claim procedure is purely statutory. Once the municipality files a claim for services, the claim
becomes a lien on the property. Section 3(a)(1) of the Municipal Claims Act, 53 P.S. §7106(a)(1)
(“All municipal claims … shall be and they are hereby declared to be a lien on said property[.]”);
4
water and sewer tapping fees for eight additional EDUs in the amount of $86,430.25,
along with associated fees and costs. On February 6, 2015, the Authority filed a
second municipal claim against Lot 1 for tapping fees for four additional EDUs in
the amount of $43,200, along with fees and costs. Realty requested the Authority to
file a writ of scire facias on each claim, which the Authority did.4 Realty then filed
an affidavit of defense. The trial court consolidated the writs and conducted hearings
thereon on December 15, 2015, and January 20, 2016.
In support of its claim that Lot 1 was entitled to three EDUs, the
Authority offered a letter dated May 1, 2000, from Thomas Courduff, the former
Executive Director of the Authority, to Edward Dudlik, owner of Mearns Road
Business Campus, L.P. The letter stated:
As a follow-up to our recent telephone conversation, I am
confirming the following to you, that, based upon a daily water
use of 825 gallons per day, the existing skating rink has been
assigned 3.03 EDU’s.
…
Please recall that a total of 11 EDUs has been assigned to the
entire project.
GSP Management Co. v. Duncansville Municipal Authority, 126 A.3d 369, 373 n.1 (Pa. Cmwlth.
2015).
4
A writ of scire facias sur municipal claim is “a writ used to enforce payment of a municipal claim
out of the real estate upon which such claim is a lien.” Valley Forge Sewer Authority v. Hipwell,
121 A.3d 1164, 1165 n.1 (Pa. Cmwlth. 2015) (quoting Fox Chapel Sanitary Authority v. Abbott,
384 A.2d 1012, 1013 n.1 (Pa. Cmwlth. 1978)). A property owner that is aggrieved by a municipal
lien that is not defective on its face may obtain an adjudication as to the validity of the lien by
serving notice upon the municipality to issue a writ of scire facias on the claim. Id. at 1166 n.3.
“A writ of scire facias to ascertain the amount due on a lien is ordinarily requested by a property
owner to give him the opportunity to show why the lienholder should not be allowed to execute
on his property.” Id. After the lienholder issues the writ, the owner may file an affidavit raising
his defense to the lien. Id.
5
R.R. 252a (emphasis added). Michael Sullivan, the current Executive Director of
the Authority, explained the significance of Courduff’s letter. Originally, the entire
Business Campus parcel was assigned 11 EDUs. Thereafter, in the course of the
subdivision and planning process, the newly subdivided lots received a new
allocation of EDUs. Courduff’s letter notified Dudlik that 3.03 EDUs, of the original
11 EDUs, were being assigned to Lot 1. Notes of Testimony (N.T.), 12/15/2015, at
19-20; R.R. 473a-474a. Sullivan also testified that eight EDUs were assigned to Lot
2, for the proposed development of the industrial condominiums.
In further support of this allocation of the EDUs, Sullivan testified
about an October 29, 1998, letter from Carroll Engineering Corporation (Carroll),
Dudlik’s consultant on the development, to Courduff. The letter was offered into
evidence.5 The letter projected sewage flow of 608 gallons per day for Lot 1, and
2,100 gallons per day for Lot 2. In 1999, Boucher & James, Inc., the engineering
firm for the Authority, recommended that the sewage flow projection for Lot 1 be
increased to 825 gallons per day, for a total projected use for both Lots 1 and 2 of
2,925 gallons per day. A handwritten note on the Carroll letter stated that 3.06 EDUs
would be assigned to Lot 1, and 7.78 EDUs would be assigned to Lot 2, which rounds
up to 8 EDUs. Boucher & James’s recommendation was also admitted into
evidence.
Sullivan explained that every development requires the submission of
a sewer planning module to the Pennsylvania Department of Environmental
Protection (DEP) for its review. He explained that DEP’s approval of the planning
module “gives the developer the ability to buy those EDUs based on the approved
flow.” N.T., 1/20/2016, at 18-19; R.R. 620a-621a. In the instant case, the planning
5
The letter was sent from the engineering firm and signed by an initial, “J.”
6
module submitted to DEP on January 7, 2000, showed a projected total flow of 2,925
gallons per day, or 10.83 EDUs, for “Mearns Road Business Campus Lot Nos. 1
&2.” R.R. 302a.
The Authority also presented its billing department records showing
that Realty used 271,000 gallons of water, or 11 EDUs, over the first quarter of 2009;
and 366,000 gallons of water, or 15 EDUs, over the first quarter of 2014. That usage,
Sullivan testified, provided the basis of the Authority’s assessment of 12 additional
EDUs against Lot 1.
Realty responded with evidence to support its position that Lot 1 was
entitled to 11 EDUs. Realty offered a copy of an October 29, 2002, agreement
(Agreement) between the Authority and Mearns Road Business Campus, L.P.
Section 17 states as follows:
DEVELOPER, within seven (7) days after the execution hereof,
shall provide to AUTHORITY a two (2) year letter of credit …
acceptable by the AUTHORITY as security of payment for
eleven (11) water tapping fees of Four Thousand Five Hundred
($4,500.00) Dollars each for the PROJECT, which totals Forty
Nine Thousand Five Hundred ($49,500) Dollars, and, eleven (11)
sewer tapping fees of Six Thousand Three Hundred ($6,300.00)
Dollars each for the PROJECT, which totals Sixty Nine
Thousand Three Hundred ($69,300.00) Dollars, for total tapping
fees of One Hundred Eighteen Thousand Eight Hundred
($118,800.00) Dollars….
R.R. 181a (emphasis added). The Agreement defines “PROJECT” as “two (2)
condominium buildings, each containing fourteen (14) units, to connect to the public
water distribution and sanitary sewer system of the AUTHORITY …[.]” R.R. 165a.
The Agreement further identifies “DEVELOPER” as “the legal or equitable owner
of certain real estate located in Warwick Township, Bucks County, Pennsylvania,
known as Bucks County Tax Map Parcel No. 51-13-62, commonly referred to as
7
Mearns Road Business Campus (“PREMISES”)[.]” R.R. 164a. The tax parcel
identified as No. 51-13-62 is the tax number of Lot 1, which Realty now owns.
Nowhere does the Agreement refer to an allocation of EDUs between Lots 1 and 2.
Philip Pulley, a general partner of Realty, next testified. He explained
that he “met with the Water and Sewer Department to go through their files[,]” and
he obtained a copy of the Agreement from the title company. N.T., 12/15/2015, at
76; R.R. 530a. He believed that at the time of Realty’s purchase, Lot 1 was allocated
11 EDUs because the tax parcel number referenced in the Agreement is Lot 1’s tax
number. He noticed, however, that the Agreement identified “project” as “two
condominium buildings,” which he found “very confusing”:
[T]his all became very confusing because it’s our lot number.
And so because this property has a lot of excess ground, there
was some question about whether that applied to Dudlik building
additional stuff on this tax parcel number.
Id. at 82; R.R. 536a.
Realty submitted its sales agreement with Mearns Road Business
Campus, L.P. dated June 14, 2006, along with a deed executed on August 31, 2006,
showing Realty’s purchase of Lot 1. Section 10(j) of the sales agreement assured
Realty that tapping fees had been paid in full:
The Seller represents and warrants that the property is connected
to public sewer and Exelon Energy for Gas and Electric. The
property is not currently connected to public water. The Seller
represents and warrants that all work and costs related to the
water connection will be completed and paid prior to Closing.
There are no connection, Tap or E[DU] fees due and payable
and all connection fees have been paid in full.
R.R. 152a (emphasis added). Realty also submitted a letter of credit dated July 29,
2003, and the Authority’s ledger of October 28, 2004, which showed that Mearns
8
Road Business Campus, L.P. paid tapping fees for 11 EDUs in a total amount of
$118,800.
The trial court entered judgment in favor of the Authority for a total
amount of $170,036.53. It found, as fact, that when Business Campus was
subdivided, Lot 1 was assigned 3.06 EDUs, and Lot 2 was assigned 7.78 EDUs.
Because the tapping fees for the 3.06 EDUs had been paid, Realty was entitled to
credit for 3.06 EDUs. Noting that the Municipality Authorities Act authorizes the
Authority to assess additional EDUs based on usage, the trial court found the
Authority’s assessment of an additional 12 EDUs upon Realty was warranted.
Finally, the trial court granted the Authority’s request for reasonable attorney fees
in the amount of $30,000.
Realty filed a motion for post-trial relief. It contended that the
Agreement allocated all 11 EDUs to Lot 1. This was contradicted by the Carroll
letter of 1998 and the Authority letter of 2000, but those letters did not constitute an
enforceable agreement. Realty further argued that the Authority’s failure to modify
the Agreement to allocate 3.06 EDUs to Lot 1 after the subdivision occurred in 2003
was “an oversight for which [Realty] should not be held responsible.” Post-Trial
Motion at 5, ¶13; R.R. 768a.
On June 30, 2016, the trial court entered an order striking its June 8,
2016, judgment, and directing the parties to submit briefs with proposed findings of
fact and conclusions of law. After review, the trial court denied Realty’s post-trial
motion. On October 14, 2016, judgment was entered in favor of the Authority “for
the sum of $170,036.53 on the Order dated: 06/08/2016.” Order, 10/14/2016; R.R.
11a.
9
After Realty appealed to this Court, the trial court ordered Realty to file
a Pennsylvania Rule of Appellate Procedure 1925(b) statement.6 It did so, which
prompted the trial court to issue a Rule 1925(a) opinion.7
In its Rule 1925(a) opinion, the trial court explained that the dispute
concerned the assessment of tapping fees on Lot 1. Neither party produced evidence
“to establish the amount paid by the former owner for the tapping fees relating to
[Lot 1] ….” Trial Court 1925(a) op. at 3; R.R. 857a. However, the Authority’s
evidence established that Lot 1 was allocated 3.06 EDUs and that Realty’s actual
water usage during the last quarter of 2006 was 3.95 EDUs. This was close to the
original assessment of 3.06 EDUs. The trial court found Realty’s reliance on the
Agreement between the Authority and Mearns Road Business Campus, L.P. was
misplaced. The Agreement addressed the development of the entire tract, not just
Lot 1. Accordingly, the 11 EDUs had to be allocated between Lot 1 and Lot 2.
Appeal
6
Rule 1925(b) provides, in pertinent part:
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).
7
Rule 1925(a)(1) states, in relevant part, as follows:
[U]pon 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(a)(1).
10
On appeal,8 Realty raises two issues. First, it argues that the trial court
erred in finding that it was entitled to 3.06, rather than 11 EDU credits. Second, it
argues that the trial court erred in awarding the Authority attorney fees.
As it contended before the trial court, Realty argues that the October
29, 2002, Agreement, which is binding on the Authority, allocated 11 EDUs to
“Bucks County Tax Map Parcel No. 51-13-62,” which is the tax number assigned to
Lot 1. R.R. 164a. It was the Authority’s “unilateral mistake,” Realty argues, “[to
leave] in place an allocation of 11 EDUs for a tax parcel number which originally
applied to the entire [Business] Campus prior to subdivision and, post subdivision,
applied only to Lot 1”. Realty Brief at 31. Realty reasonably relied upon the
Agreement to conclude that Lot 1 had been assigned 11 EDUs.
Realty further argues that the Carroll letter of 1998, the
recommendation from Boucher & James, and the Authority letter of 2000, “are not
competent evidence of a contractual agreement between the Authority and [Mearns
Road Business Campus, L.P., the former owner.]” Realty Brief at 29. Those
documents contain only “projections” of water and sewer usage, and were done long
before Lot 1 was connected to the Authority’s water and sewer systems. Realty
Brief at 39-40. In any event, Realty was not aware of the allocations of EDUs
between Lots 1 and 2 at the time of purchase because it did not have access to any
of those documents.
The Municipal Claims Act authorizes the filing of a claim “arising out
of, or resulting from … service supplied, work done, or improvement authorized and
8
“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.” Valley Forge Sewer Authority, 121 A.3d at
1167 n.4 (quoting Penn Township v. Hanover Foods Corporation, 847 A.2d 219, 222 n.10 (Pa.
Cmwlth. 2004)).
11
undertaken, by a municipality,” which “shall include all penalties, interest, costs,
fines, charges, expenses and fees, including reasonable attorney fees, as allowed by
this act and all other applicable laws.” Section 1 of the Municipal Claims Act, 53
P.S. §7101. Municipal claims constitute prima facie evidence of the facts averred
within the claim. Section 20 of the Municipal Claims Act, 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. General Municipal Authority of the Borough of Harvey’s Lake v. Yuhas,
572 A.2d 1291, 1294 (Pa. Super. 1990); see also Abbottstown Paradise Joint Sewer
Authority v. Carter, (Pa. Cmwlth., No. 983 C.D. 2007, filed January 24, 2008), slip
op. at 4.9 The trial court, as factfinder, 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 factfinder.”
Abbottsown Paradise Joint Sewer Authority, slip op. at 4-5 (quoting Turney v. Media
Fuel, Inc. v. Toll Brothers, Inc., 725 A.2d 836, 841 (Pa. Super. 1999)).
The Authority claimed that Lot 1 was allocated three EDUs at the time
of Realty’s purchase; Lot 1’s usage exceeded that allocation; and Realty refused to
pay tapping fees for the additional 12 EDUs assessed by the Authority. The
Authority provided evidence to support each of those claims and established a prima
facie case. In opposition, Realty asserted that in 2002, Authority assigned 11 EDUs
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.
12
to Lot 1 by the Agreement. The trial court found, however, that the Agreement
applied to the entire parcel before it was subdivided. We agree.
Section 17 of the Agreement states in relevant part, as follows:
DEVELOPER, within seven (7) days after the execution hereof,
shall provide to AUTHORITY a two (2) year letter of credit …
acceptable by the AUTHORITY as security of payment for
eleven (11) water tapping fees of Four Thousand Five Hundred
($4,500.00) Dollars each for the PROJECT, which totals Forty
Nine Thousand Five Hundred ($49,500) Dollars, and, eleven (11)
sewer tapping fees of Six Thousand Three Hundred ($6,300.00)
Dollars each for the PROJECT, which totals Sixty Nine
Thousand Three Hundred ($69,300.00) Dollars, for total tapping
fees of One Hundred Eighteen Thousand Eight Hundred
($118,800.00) Dollars….
R.R. 181a (emphasis added). The Agreement identifies “DEVELOPER” as “the
legal or equitable owner of certain real estate located in Warwick Township, Bucks
County, Pennsylvania, known as Bucks County Tax Map Parcel No. 51-13-62,
commonly referred to as Mearns Road Business Campus (“PREMISES”)[.]” R.R.
164a.
In interpreting the language of a contract, we ascertain the intent of the
parties and give it effect. LJL Transportation, Inc. v. Pilot Air Freight Corporation,
962 A.2d 639, 647 (Pa. 2009). “When the words of an agreement are clear and
unambiguous, the intent of the parties is to be ascertained from the language used in
the agreement, … which will be given its commonly accepted and plain meaning[.]”
Id. (internal quotations omitted). Further, “in determining the intent of the
contracting parties, all provisions in the agreement will be construed together and
each will be given effect.” Id. Therefore, “we will not interpret one provision of a
contract in a manner which results in another portion being annulled.” Id.
13
We reject Realty’s interpretation of the Agreement to mean that it
allocated 11 EDUs to its parcel, now designated “Lot 1” with the tax identification
number of 51-13-62. The Agreement addresses the development of “Mearns Road
Business Campus,” which is the tract subdivided in 2003 to form Lot 1 and four
additional lots numbered 2 through 5. Further, Section 17 states that the tapping fees
of $118,800.00 were paid for the “project,” which is identified in the Agreement as
“two (2) condominium buildings, each containing fourteen (14) units[.]” R.R. 165a.
The “Premises” identified in the Agreement showed the tax parcel number presently
assigned to Realty’s Lot 1. However, Realty acknowledges that “[the] tax parcel
number [was] originally applied to the entire [Business] Campus prior to subdivision
and, post subdivision, applied only to Lot 1.” Realty Brief at 31. Construing the
Agreement as allocating the 11 EDUs to the skating rink would create a conflict
between the key terms of the Agreement and be contrary to the ordinary meaning of
the written terms.
Realty argues that the Authority should have modified the Agreement
to do a new allocation of EDUs between Lots 1 and 2 after the subdivision. The
Authority’s so-called “unilateral mistake” led Realty to believe that upon its
purchase of Lot 1, it would acquire 11 EDUs. Realty’s argument is not persuasive.
The Agreement states that the tapping fees of $118,800 were paid for the “project,”
which was identified as two condominium buildings. No condominiums were
planned for Lot 1. Accordingly, Realty should have known that the tapping fees
were not related to the existing skating rink. Indeed, even Pulley, Realty’s general
partner, testified that he found the terms of the Agreement “very confusing.” N.T.,
12/15/2015, at 82; R.R. 536a. By contrast, the Authority’s interpretation gives effect
to all of the terms of the Agreement. See LJL Transportation, Inc., 962 A.2d at 647.
14
It is the property owner, as the defendant in a scire facias proceeding,
who bears the burden of overcoming the municipality’s prima facie case by
presenting sufficient evidence that the claims are erroneous. General Municipal
Authority of the Borough of Harvey’s Lake, 572 A.2d 1291; Abbottsown Paradise
Joint Sewer Authority, slip op. at 4. Because the Agreement did not allocate more
than three EDUs to the skating rink on Lot 1, we hold that the trial court did not err
in its judgment.
Finally, Realty argues that the trial court erred in awarding the
Authority attorney fees because it did not consider the Authority’s “bad faith at trial
for its failure to disclose the amount paid by Dudlik for tapping fees prior to the first
day of trial, and its withholding of such information for 17 months, until 5 days
before the second day of trial[.]” Realty Brief at 48.
Section 20 of the Municipal Claims Act provides, “[i]f plaintiff
recovers a verdict, upon trial, in excess of the amount admitted by the defendant in
his affidavit of defense or pleadings, he shall be entitled to reasonable attorney fees
for collection in accordance with [S]ection 3 [of the Municipal Claims Act].” 53
P.S. §7187. This Court has further held:
Reading both [Sections 20 and 3 of the Municipal Claims Act,
53 P.S. §§7187, 7106] in conjunction with one another, as
required under the rules, once the trial court rules in favor of the
municipality on its municipal lien, the challenge by the property
owner is deemed to be meritless, therefore, entitling a
municipality to an award of reasonable legal fees.
Valley Forge Sewer Authority, 121 A.3d at 1172 (citing Borough of Walnutport v.
Dennis, 13 A.3d 541, 547 (Pa. Cmwlth. 2010)). The trial court further found the
attorney fees reasonable, and Realty did not challenge their amount. Accordingly,
the trial court did not err in awarding the Authority attorney fees.
15
Conclusion
For the above-stated reasons, we affirm the order of the trial court.
______________________________________
MARY HANNAH LEAVITT, President Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Warwick Township Water and :
Sewer Authority :
:
v. : No. 1831 C.D. 2016
:
Warwick Realty Co., L.P., :
Appellant :
ORDER
AND NOW, this 7th day of December, 2017, the order of the Court of
Common Pleas of Bucks County, dated October 7, 2016, in the above-captioned
matter is hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge