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Home My WebLink About04-1236 MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER 1288 Boiling Springs Road Boiling Springs, PA 17007, Owners o L./- 1J-'3r" Clv<l ~ MUNICIPAL LIEN D i-If:J G I /l'\t..D~ PRAECIPE FOR THE WRIT OF SCIRE FACIAS SUR MUNICIPAL CLAIM To: Curtis R. Long, Prothonotary Dear Sir: On behalf of the Monroe Township Municipal Authority, claimant in the above-captioned matter, kindly issue the attached Writ of Scire Facias Sur Municipal Claim. Please be advised that the Monroe Township Municipal Authority filed a Municipal Lien at Docket No. 01-4361 in the amount of $3,000.00, with interest along with penalties and all costs, including attorney's fees, against property owned by Timothy R. Augsburger and Janel C. Augsburger known and numbered as 1288 Boiling Springs Road, Boiling Springs, Pennsylvania, 17007. please be advised that said claim is still due and unpaid, and remains a-lien against said property described therein. Monroe Township Municipal Authority By: ~1>~'.v- James~. Boga~~-]Fsquire By: ~ {~r'r J~f~{f:~ B. \ipp, Esquire March 24, 2004 , Solicitors for the Monroe Township Municipal Authority MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. o tr - /2:'3 G c. / " ; I ~ TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, 1288 Boiling Springs Road Boiling Springs, PA 17007, Owners MUNICIPAL LIEN 0 I - '-f 3(.,1 NlI..O ~ WRIT OF SCIRE FACIAS SUR MUNICIPAL CLAIM The Commonwealth of Pennsylvania to TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, husband and wife, Greeting: Whereas, the Monroe Township Municipal Authority, of 1220 Boiling Springs Road, Mechanicsburg, Pennsylvania, 17055, (hereinafter referred to as the "Authority"), on July 19, 2001 filed its Municipal Lien for Sewer Connection in the Court of Common Pleas of Cumberland County, Pennsylvania, at No. 01-4361 Municipal Lien Docket 2001, for the sum of $3,000.00, with interest in the amount of ten (10) percent, along with penalties and all costs, including attorneys' fees, for a sewer connection fee against all that certain lot of ground, including any improvements located thereon, same being known and numbered as 1288 Boiling Springs Road, Boiling Springs, Monroe Township, Cumberland County, Pennsylvania, 17007, owned or reputed to be owned by you, said property being more fully described as follows: ALL THAT CERTAIN tract or parcel of land situate in the Township of Monroe, County of Cumberland and State of Pennsylvania, being more particularly bounded and described according to a survey by John C. Brilhart Surveying and Mapping Services (Charles W. Junkins, Registered Surveyor), dated January 17, 1983, as follows, to wit: BEGINNING at a point marked by a nail in the centerline of the public road known as Legislative Route 507, (T.R. 174), at the corner of lands now or formerly of Genevieve A. Diehl, said point being referenced eastwardly along said centerline a distance of 546.8 feet from the intersection of said centerline with the centerline of Zimmerman Road; thence along the line of said lands now or formerly of Genevieve A. Diehl North 18 degrees 2 minutes West a distance of 371.32 feet to an iron pin; thence continuing along the same North 74 degrees 15 minutes East a distance of 131.07 feet to an iron pin on the line of lands now or formerly of John Harbold; thence along the line of said lands now or formerly of John Harbold South 14 degrees 53 minutes 30 seconds East a distance of 78.79 feet to a post; thence continuing along the same North 74 degrees 50 minutes East a distance of 39.93 feet to a point at the Corner of a concrete wall at the corner of lands now or formerly of Ruth Rinehart; thence along the line of said lands now or formerly of Ruth Rinehart South 15 degrees 47 minutes East a distance of 284.43 feet to a point marked by a nail in the centerline of Legislative Route 507 (T.R. 174) aforesaid; thence along the centerline of Legislative Route 507 (T.R. 174) along a curve to the left having a radius of 2864.93 feet, an arc distance of 155.39 feet to a nail, the point and place of BEGINNING. CONTAINING 1.30 Acres and being improved with a two and one- half story frame dwelling house and outbuildings. BEING THE SAME PREMISES which Julie L. Ober and Brian K. Ober, by Deed dated September 18, 1998 and recorded in the Cumberland County Recorder of Deeds Office on September 21, 1998, in Deed Book 185, Page 674, granted and conveyed unto Timothy R. Augsburger and Janel C. Augsburger, owners. Tax Property Map Parcel No. 22-28-2401-005 And whereas, We have been given to understand that said municipal claim is still due and unpaid, and remains a lien against the said property; NOW, you are hereby notified to file your Affidavit of Defense to said claim, if defense you have thereto, in the office of the Prothonotary of our said Court, within fifteen (15) days after service of this Writ upon you. If no Affidavit of Defense be filed within said time, judgment may be entered against you for the whole claim, and the property described in the claim be sold to recover the amount thereof. Witness, the Honorable George E. Hoffer, President Judge of our said court, this .2<1 day of I>-) ~ 2004. c~ Curtis R. ~ .(; Long, ~honotary '---~::;v J2:."..I7L/V James D. B;i~~ Esquire Attorn y I.D. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 ~ JJfJ!!jr Hipp, Esquire Att;~~:y I.D. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Date: March 24, 2004 Solicitors for Monroe Township Municipal Authority r.. .~ ~ ~,,; , ~ J ~(\ ~ r V , ~ " -.<\ "'" .V r f.. ...., '" '" \ \ \:) ~ It., j #I, ~. - w ~ \ l)~ ~ \ \ ]J q D f.l 1 r t ..., ,- r " " '-" SHERIFF'S RETURN - REGULAR j CASE NO: 2004,01236 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MONROE TOWNSHIP MUNICIPAL AUTH VS AUGSBURGER TIMOTHY R ET AL ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SCIRE FACIAS was served upon AUGSBURGER TIMOTHY R the DEFENDANT , at 1700:00 HOURS, on the 30th day of March 2004 at 1288 BOILING SPRINGS ROAD BOILING SPRINGS, PA 17007 by handing to TIMOTHY R AUGSBURGER a true and attested copy of WRIT OF SCIRE FACIAS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 4.83 .00 10.00 .00 32.83 .r~~ R. Thomas Kline 03/30/2004 JAMES D BOGAR Sworn and Subscribed to before B~~,ch- Deputy Sheriff me this 5~ day of ~ d.00'( A.D. (-l~l2~ ~ r' Prothonotary . SHERIFF'S RETURN - REGULAR CASE NO: 2004-01236 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MONROE TOWNSHIP MUNICIPAL AUTH VS AUGSBURGER TIMOTHY R ET AL ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SCIRE FACIAS was served upon AUGSBURGER JANEL C the DEFENDANT at 1700:00 HOURS, on the 30th day of March , 2004 at 1288 BOILING SPRINGS ROAD BOILING SPRINGS, PA 17007 by handing to TIMOTHY R AUGSBURGER, HUSBAND a true and attested copy of WRIT OF SCIRE FACIAS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 r~~,"~,r:' .-/~~~.4" R. Thomas Kline 03/30/2004 JAMES D BOGAR day of BY~M~~ 1'\0 Deputy Sheriff Sworn and Subscribed to before me this 6/e Or ;LVo'1 A.D. { L () /u~1# '--'"tI1?;;;t honot ary MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 04-1236 CIVIL ACTION - LAW TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, 1228 Boiling Springs Road Boiling Springs, PA 17007, Owners NO. 01-4361 MUNICIPAL LIEN PRAECJ:PE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: The Defendants having failed to file an Affidavit of Defense or otherwise respond to the Writ of Scire Facias served in the within matter, please enter judgement in favor of the plaintiff -I and against the Defendants in the amount of $3,000.00, plus interest in the amount of $940.80 plus interest from April 17, 2004 in the amount of ten (10%) percent, plus attorney's fees in the amount of $5,106.20, plus costs. Pursuant to the Municipal Lien Law, 53 P.S. ~ 7106, please assess attorney's fees in the above amount. Notice as required by law has been previously provided to the Defendant. By: ~~~~ESqUire Attorney I.'gjfNo~ 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 JJr.:~ll:,pp, Eoqu'ro Attorney I.D. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May 19, 2004 Solicitors for Monroe Township Municipal Authority CERTIFICATE OF SERVICE We hereby certify that we are this date serving a copy of the Praecipe as filed this date with the Prothonotary of Cumberland County, by sending the same upon the persons and in the manner indicated below: Service by first-class mail addressed as follows: Timothy R. Augsburger Janel C. Augsburger 1288 Boiling Springs Road Boiling Springs, PA 17007 Monroe Township Municipal Authority By JeJ~~~tb, '"quire Pa. ~~. No. 86556 By: ~~~f!t;, Esquire Pa. I.D. ~a~9475 Solicitors for the Monroe Township Municipal Authority One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May 19, 2004 ~., ,..-::) "~.::J c,~ () .....,. -'-. .. '. - "') . ~ ~. 8 ""1 l.. ~ . , ---- C-".) t '. VI ~ -- C:. ~) <AI ~ 0 -'-.1 --; ~ " ..(. ).... .~ . MONROE TOWNSHIP ) MUNICIPAL AUTHORITY) ) ) Claimant ) ) vs. ) TIMOTHY R. AUGSBURGER) JANEL C. AUGSBURGER ) 1228 Boiling Springs Road ) Boiling Springs, P A 17007 ) IN THE COURT OF COMMON PLEAS OF' CUMBERLAND COUNTY,PA NO. 04-1236 CIVIL ACTION LAW NO. 01-4361 MUNICIP AL LIEN ENTRY OF APPEARANCE Kindly enter the appearance of Don Bailey, Esquire on behalf of Timothy R. Augsburger and Janel C. Augsburger in the above captioned matter. L Y SUBMITTED, I TTON & OSTROWSKI ~;1l ;;: 6" streL Harrisburg, P A 1711 0 . (717) 221-9500 5 CERTIFICATE OF SERVICE I, Don Bailey do hereby certify that on May 26, 2004 I served a true and correct copy of the DOCUMENT to the attorney below by First c1ass- postage prepaid mail: James D. Bogar, Esquire Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, P A 17011 /2UBMfITED. ~WSKI 4 <) E~ ;~) r~-'~ ~::~; .~~ ' (/':1 -.,.-' <- i~: r_ ~~~ :::1 ...( - " ...., = = J..- ~ :2 ~.~ .-...6 :L~.'li 0- "7::--C) (3m :::.~t J> ~ -. :i:~ -< N Q'\ -n ::r: '-:'? .e- N MONROE TOWNSHIP ) MUNICIPAL AUTHORITY) ) ) Claimant ) ) vs. ) TIMOTHY R. AUGSBURGER) JANEL C. AUGSBURGER ) 1228 Boiling Springs Road ) Boiling Springs, P A 17007 ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, ]~A NO. 04-1236 CIVIL ACTION LAW NO.01-43M MUNICIPAL LIEN Motion to Strike/Open Jud:!!:ment Comes now Don Bailey Esq., of Bailey Stretton & Ostrowski, attorney for Owners Timothy R. and Janel C. Augsburger and makes this motion to strike Claimants PRAECIPE to ent~~r judgment and, or, in the alternative to open judgment. 1. On or about May 19, 2004 the above named Claimant, by and through their attorney James D. Bogar, filed a PRAECIPE to enter judgment against Owners ostensibly based upon Pennsylvania's Municipal Lien Law "53 P.S. section 7106". 2. Claimant seeks $3000 as the amount of the Lien plus $940.80 in interest. 3. Claimant also seeks $5,106.20 plus costs for attorney's fees. 4. Pursuant to current Pennsylvania law, more specifically, Township of Sprinfdield of Pennsvlvania v. Thomas, 165 Pa.Cmwlth. 331, 645 A.2d 1 359 (1994) the Claimants request for attorney's fel~s are neither proper nor enforceable and are void ab initio. 5. Similarly, because Owners action was a non frivolous attempt to ascertain the rights and liabilities of the parties, and was not a situation where the owners were reticent, improvident, or late in paymg an assessment, fee, or bill, the interest claimed is also inappropriate. 6. Owners are willing and able to pay the "tap in", or, " connection" fee of$3000 as per this court's orders. Wherefore this court is respectfully requested to strike claimants PRAECIPE to the monetary to enter judgment in any amount in excess of $3000 and or in the alternative to open judgment. TON & OSTROWSKI 4311 N. 61 Street "----- Harrisburg, P A 17110 (717) 221-9500 2 CERTIFICATE OF SERVICE I, Don Bailey do hereby certify that on May 26, 2004 I served a true and correct copy of the DOCUMENT to the attomey below by First class- postage prepaid mail: James D. Bogar, Esquire Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 UL ~MIITED' Do 4311 N. 6t Street Harrisburg, P A 17 (717) 221-9500 4 o G; ~~:' ;01 -< Nl = = .z:- :r.. > -< ", 0\ ~ ...... :T::u rn,-- -om c"o C).l._ _...,0 ::-r::{{ 40 om :~ :-0 -< -0 ::-J: <:? .... V> > JUN 2 2 2004 MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 01-4361 MUNICIPAL LIEN DOCKE1~ 2 001 TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, Owners NO. 04-1236 CIVIL CIVIL ACTION - LAW RETURN OF RULE TO SHOW CAUSE IN REI MOTION TO STRIKE/OPEN JUDGMENT AND NOW, comes Claimant, the Monroe Township Municipal Authority, by and through its Solicitors, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, and files this Return of Rule to Show Cause In Re: Motion to Strike/Open Judgment and respectfully asserts that the Owners' Motion be determined to be without merit and dismissed based on the following: 1. On July 19, 2001, Monroe Township filed a Municipal Claim for Sewer Connection. The amount of the sewer connection was $3.000.00, which sum was duly assessed against TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, husband and wife, owners of real property, including improvements thereon, located at 1288 Boiling Springs Road, Boiling Springs, Pennsylvania. A copy of the Municipal Lien is incorporated herein, attached hereto and marked as Exhibit "A." 2. The merit and validity of the sewer connection fee and, thus, the Municipal Lien were upheld by this Honorable Court and the Commonwealth Court of Pennsylvania. The Supreme Court of Pennsylvania refused to hear an appeal in this matter. Copies of this Honorable Court's decision, the decision of the Commonwealth Court, and the Order of the Supreme Court denying the Owners' Petition for Allowance of Appeal are incorI>orated herein, attached hereto and marked as Exhibit "B." 3. On December 22, 2003, the Monroe l'ownship Municipal Authority filed its Voluntary Substitution of Monroe Township Municipal Authority as a Party Claimant with this Honorable Court. Upon the Owners' challenge, this Honorable Court upheld the Authority's voluntary substitution as a party claimant. 4. The Owners in filing their appeals of the Municipal Lien presented no new or novel issues of law and., thus, their appeals were essentially frivolous in nature. 5. The Monroe Township Municipal Authority has the legal ability to assess any and all fees incurred in the collection of any delinquent account, including reasonable attorneys' fees, for an owner's failure to promptly pay the Municipal Lien. See, qenerallv, 53 P.S. ~ 7106. 6. In the Municipal Lien that Claimant filed against Owners, Claimant set forth the principal amount of the lien, same being $3,000.00, and also set forth that the lien would be subject to interest in the amount of ten (101 percent, along with penalties and all costs, including attorneys' fees. -2- 7. On March 24, 2004, Claimant filed a Writ of Scire Facias Sur Municipal Claim with this Honorable Court. A copy of the Writ of Scire Facias Sur Municipal Claim is attached hereto, incorporate herein and marked as Exhibit "C." 8. The Writ of Scire Facias Sur Municipal Claim set forth that the Municipal Lien in question was "for the sum of $3,000.00, with interest in the amount of ten (10) percent, along with penalties and all costs, including attorneys' fees, for sewer connection fee" against the Owners real property. See Exhibit "C." A copy of the Cumberland County Sheriff's Certificate of Service of the Writ of Scire Facias Sur Municipal Claim showing date of service on the Owners is attached hereto, incorporated herein and marked as Exhibit "D." 9. The Writ also set forth that the O,mers were notified to file their Affidavit of Defense to the Writ of Scire Facias Sur Municipal Claim with this Honorable Court within fifteen (15) days after service of the Writ upon them. Further, the Writ set forth that if the Owners failed to file an Affidavit of Defense within the required time period, judgment would be entered against them for the entire claim and the property described in the claim could be sold to recover the amount thereof. 10. Owners failed to file an Affidavit of Defense to the Writ of Scire Facias within the required time period. -3- 11. On May 19, 2004, Claimant filed a Praecipe with this Honorable Court setting forth that the Owners had failed to file their Affidavit of Defense or otherwise respond to the Writ of Scire Facias and requested that this Honorable Court enter judgment in favor of the Claimant. A copy of the Praecipe is attached hereto, incorporated herein and marked as Exhibit "E." 12. Claimant is entitled to file a Praecipe converting the Municipal Lien to a judgment after the Own,=rs failed to file their Affidavit of Defense to the Writ of Scire Facias within the required time period. See 53 P.S. ~ 7271. 13. On or about April 2, 2004, Owner Timothy R. Augsburger went to the Monroe Township Municipal Authority's administrative office located at 1220 Boiling Springs Road, Suite 121, Mechanicsburg, Pennsylvania with the express intent to pay any and all outstanding balances on any municipal liens filed against his and his wife's property and any interest, penalties and fees associated therewith. During his visit, O~mer Timothy R. Augsburger elected that he would not pay any of the outstanding balances. 14. On June 10, 2004, Claimant forwarded correspondence via facsimile and first class mail to the Owners' attorney setting forth a proposed resolution of this matter. The Owners failed to respond to Claimant's offer in the requested time period. -4- 13. Owners cite to the Townshio of Sorinofield v. Thomas, 645 A.2d 359 (Pa. Commw. 1994), case in their Motion. The Sorinofield Townshio case is distinguishable and, thus, wholly inapplicable, in that it applies to a municipality's attempt to recover attorneys' fees incurred in defending a municipal claim after the Owners filed an Affidavit of Defense to a Writ of Scire Facias. WHEREFORE, the Monroe Township Municipal Authority respectfully requests that your Honorable Court order that Owners' Motion to Strike/Open Judgment be determined to be without merit and be dismissed with prejudice. Respectfully submitted, June 22, 2004 BY: Jenni er Supreme BY: James D. Bogar, Supreme Court: One West Mair:. Street Shiremanstown, PA 17011 (717) 737-8761 Solicitors for Monroe Township Municipal Authority and Monroe Township -5- PROOF OF SERVrCE We, James D. Bogar, Esquire, and Jenn;~fer B. Hipp, Esquire, hereby certify that we are this day serving the foregoing Return of Rule to Show Cause In Re: Motion to Stri.ke/Open Judgment upon the person and in the manner indicated below: Service by first-class mail addressed as follows: Don Bailey, Esquire Bailey, Stretton & Ostrowski 4311 N. 6~ Street Harrisburg, PA 17110 Municipal Authority r, Esquire Hipp, Esquire June 22, 2004 Solicitors for Monroe Township Municipal Authority and Monroe Township . ,', I :ri........"') I;:\".. 8S :9 :N 22 inr 1GDZ AuL.OH()j-!.lCcid 3Hl :10 3JLJ."()-(J3ilj MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. O/-/..jJ~.L MUNICIPAL LIEN TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Husband and Wife, : Owners : MUNICIPAL LIEN MUNICIPAL LIEN FOR SEWER CONNECTION AND NOW, comes Monroe Township, of 12213 Boiling Springs Road, Mechanicsburg, Pennsylvania, by and through its Solicitor, James D. Bogar, Esquire, and files the following municipal claim against TIMOTHY R. AUGSBURGER and JANEL C. 1.UGSBURGER, adult individuals, owning property located at 1288 Boiling Springs Road, Boiling Springs, Pennsylvania 17007. TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER are the owners of all that certain lot of described as follows: ground, including any improvements thereon, being more fully ALL THAT CERTAIN tract or parcel of land situate in the Township of Monroe, County of Cumberland and State of Pennsylvania, being more particularly bClUnded and described according to a survey by John C. Brilhart Surveying and Mapping Services (Charles W. Junkins, RE!gistered Surveyor), dated January 17, 1983, as follows, to ..'it: BEGINNING at a point marked by a nail in the centerline of the pUblic road known as LegiSlative Route 507, (T.R. 174), at the corner of lands now or formerly of Genevieve A. Diehl, said point being referenced eastwardly along said centerline a distance of 546.8 feet from the intersection of said centerline with the centerline of Zimmerman Road; thence along the line of said lands now l:lr formerly of Genevieve A. Diehl North 18 degrees 2 minutes West a distance of 371.32 feet to an iron pin; thence continuing along the same North 74 degrees 15 mi~lutes East a distance of 131.07 feet to an iron pin on the line of lands now or formerly of John Harbold; thence along' the line of said lands now or formerly of John Harbold South 14 degrees 53 minutes 30 seconds East a distance of 78.79 feet to a post; thence continuing along the same North 74 degrees 50 minutes East a distance of 39.93 feet to a point at the corner of a concrete wall at the corner of lands now or formerly of Ruth Rinehart; thence along the line of said lands now or formerly of Ruth Rinehart South 15 degrees 47 minutes East a distance of 284.43 feet to a point mar]<ed by a nail in the centerline of Legislative Route 507 (T.R. 174) aforesaid; thence along the centerline of Legislative Route 507 (T.R. 174) along a curve to the left having a radius of 2864.93 feet, an arc distance of 155.39 feet to a nail, the point and place of BEGINNING. CONTAINING 1.30 Acres and being improve,d with a two and one- half story frame dwelling house and outbuildings. BEING THE SAME PREMISES which Julie L. Ober and Brian K. Ober, by Deed dated September 18, 1998 and recorded in the Cumberland County Recorder of Deeds Office on September 21, 1998, in Deed Book 185, Page 674, granted and conveyed unto Timothy R. Augsburger and Janel C. Augsburger, owners. Tax Parcel No. 22-28-2401-005 Monroe TownShip hereby files this Municipal Lien for Sewer Connection in the amount of $3,000.00, which connection fee has been duly assessed against Timothy R. Augsburger and Janel C. Augsburger, adult individuals, and the real property described herein from and on June 17, 2001, and for which sum, with interest in the amount of ten (10%) percent, along with penalties and all costs, including attorneys' fees, a municipal lien is claimed against the above-described real propE~rty and premises in -2- accordance with the Act of May 16, 1923, P.L. 207, 97, as amended, 53 P.S. 97101, et seq, as amended (Municipal Claims arid Tax Liens). MONROE TOWNSHIP Dated: July 19, 2001 D- -3- MOl'iROE TO\\~SHIP, Claimam ~ THE COl;RT OF COM:\lOl'i PlE,-\S OF CUMBERlA).iD COl~TY. PE"'~SYL \.-\=-'1.-\ VS. 01-436l MFNICIP.-\L LIE\ H\[OTHY R. .-\l'GSBl'RGER ant J.-\).iEL C. .-\CGSBl'RGER. Owr:e~S [).i RE OPI):lON PCRSl'.-\=-'T TO RCLE 1925 T", ~""';.~..:..., ',.,n~~.... rMi~ --'~-r..:." T;...... th' R 'Tl(1 ~ '1"7 .. ,,.,~ J"'I"'.:.1 C j.,.,..:..... ,,..,-.;0" L..,'I";' ..c ,-,-.,-..C:_.:'l::: Iu ....~ 1.....:.'...'-.. "~HO.i.: . .-'\"o::S,-,L.;:c. 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""'~ ;.~+.=. -\T""!',:""l-a-,;:."- h~ ~.:.. "i r1 q--; r.nl) (in T:'",:, ..l'~G',;" ''':r~'', '-_ e....Ll.= U..u.';:'. .. LH... \,;...._.... 01 L....... ....=_....~.L=....:;). t....... 1C... tot......c.... .:).....J.... .v~ ~...... ..~.=_VLl.l="'..... ;'."i;,=r."": .., ,"'i 1"'.:....... -""'\ .l....;>. ,"",'.'0''' ;"',-::- ,.....:: '-, ::o,..'r t.. -1 ,.,~ ."""t.,;r.... Ti1.:.,~ ~.._~"':...>;'\i 'l;':'~ :~". 1_..__ ~C ..""r.......;.......~ Ll) ,...... _.... .1,...... .J: _''''..~ '.~...I".;.. a:;, 3. r...._....l.. t.Lle '" ,\...;._l...;.~.. ........... a ...................;--..... ........ 1\.:.. ~~\V'=''' C" ....."",....;,~~ -: Jll1- IJ )((;1 --~, \ 11(T~~ TT'r:'.:.r :, ..~...,-F- ...c: .:."": ':'l r '1';;:....~ ,.;0...=.1.; ,v ...;i,-:,~-,:11 ........ ..... I.,ir..............l,,~ 0,. ~..: '. __' ~.. 1 ..c .--..~.=...LiL...:.....S t.L...e....._..~C. 1...'-__ .....l'"e....ll.i~~ ~........:.....n= l.:....1...;.~........ ...,~'~h -r"~'r; ..;......:_,; Ii...:.'" '11"',--: ~1,.... ':'l ."",..~~.=.,. j;"''' . .;.:.,....1.1T'':':Ti f-'11.iro +"!l.::to"":' 1. J,.....=. -l...,~~-...,~in r--"'" \.... ~....~ ~..........l..l.I..:.;--_.. ......1.. ........__ c.:.....u ..... ....~~.'-....~ ~.l.......( J.u........;,.........on 0.. L....:...._..=, .L.~.'-..... 0: t~..... '" ..l.._......t-- ...'.... __..~'"'L....::. T', "::01.. - ' ....:.. b ~r" ~ "::01'-'"'-:\; f h ...; 1""1 _; ~ "'11.: ,- Ti......=o...=-..~.."" .1. ',. "..~".:l. i.e.. ,,:1> smc. e_..." .IJ~,-Lon 0 t e "e..arat.on 01 t,..\.;n:. u....o,.. \l,e onl; issue fer the cauti: is \vhether the m.ur-.icipallien for se\ver connec:ion. should be s::icken. The ce:-:irrern definitions re!!arding: the iSSUeS in this case are set forth in Ord.inance 00. . - - 1000-7 of Monroe To\vnship or as follows: I e 1 EXHIBIT U l--;.JO 1 lVl.L.U. Improved Property sbll De::!"- any prope,",y within this Township upon \\r.ich the:-e is e:-e,:;ec a structure ir..(c:""~.::e..: fer continuous or pt::-:oc.ic habimtion. oc::,;pilncy or USe by humiln beings or animo-Is and f:om \vhich Stf"Jc:ure Sani1:2.ry Scw2.ge and/or lndus;:ic.l '.lias;es shc.l! be or may be dtsch:J.rged. L"te~"l .11011 ~'"n -k,t "0- 0" ,J..~ S~\"~- '\'-~~ .... ~..... .::IL ...... .u"-.... ~ ~~...... }-.....'. 1 LJ.h.. \". "Y..... ..)_ :::~...d. ex!e~ding frow :l Sc\\;e:- to the e:lSeme~H line ()[ LO the prope::::; line. ilS applic::!cle. or it";:o s:.;:h exte:lsion is p:o\'i.:!cd. [he:: "'Lateral" shall G,,::!f, tho,[ por:ion o:~. or plo.ce in. a Sc\ve:- th:J.[ is pro':ic.ed ~or ro"'r':>I"~:'""\'" ot..,~~. B'l;'!-;::1tJ' ~"':>'\'~- 11 .... ,:............~ll.,;l.. .......: \... La~.= _..... \".. Se,ver sh:J.ll r::e:lrl :m.y pi~e or conc.uit con5~ir..:r::ng 'D"~ ....;....L."'" ""':>'\'~" C.._~.:.__ u.;;;:.:>,...l or l'S.,'.....!.;. ..0' u. .. ........ Ul LlJ..... ........ .... ...;;. J\.... .~.~ .......... . ....l..l'- 1 I. P\...,(.,.~ .....nl1.:>,..~:"'Ii' :"l~':""""'O'';>'' .",.... In...;,- ""'-'d'-''-'.I",...... u;- _'-'_. S";>'l~_.er S"s'e"'" -:.,....li -.:>.,n ~;;;: "":"~'lI"P" P.,_~_.,l...,_ ...." .y ~ ..u. :::1.":'.. u..........~~ '-... U'- r..;.<..!." '1.0.':' ..l; ....:.'-~.:. rIme. nIl f2.cili:ics loc2.r~d. \v:r~:.ir. this T o\vr.ship for col1ecti....O' i'L.--i....O' t-""'-i':1;>i;~a tr=>M;....O' -;,....,...; ... .l.J.;. !" .u..:-' 1':';. .;.1.O.....:;:)t.....:."..:...:;. ....;.....u; ""1J.'- dl"~o-=-:n<1 0;.,4 "lni~.,-." ''';>'''''0'':> ~...,...:.'or 1~"':ll;;;:._:"l . ~:- .;H _; !. _(.,;,,;.u~_.: ......... '"''''":;''' ..=..:..1...... ~..I..;. ....~.1..'_~ ~"I''v:.,,~.:>-: n':~h;- :-~;~ T,i','~;;;:~;"" \V'-':>f~':>'" on'~,:>'~: :...~.: v __~'-'.", .Yt~.u.. ....... '" ,,~.....l...:--. 1..'-'......... d,..,-,_, LJ. tl,..;>., 11~:"'''''r;:--' t:":- T-\":~.'-:;" "'Ir .,......~;.....:.,.. .lJ...... .-:...........C....:. L..'::: ..I..."',..~u.l.:, 1...:. .;......l,;LI.~'-'. rrl.l.:r.tc:plli~y ::.:.::::cr::y. 0-":_,,--. '\, 71'00 -I \ ....;.I~ I S ...:.- 1 0: ..,_..._..'-....1..1._..) ... ...........lJ.L.... e.....I...J.....:.. -1:" :-:-;.... fth ..,.......:> ,...:;-.,~....;>. O'~..:_,.....: .;>. -"'\ .1..,..;>. 'r-.......- i;-;--:l~: 'f:, d:- :..l~:'.1..~ ..:.C PO.;'J.Oll 0 .l. e ;,....l..L... or............I.,;..., ~.Y..;...::- ..S"" 1.1.,,; L1~.... L.':::l..:..:..L ....;.~~_'...:.Or:. IS ...01..r.' u... ul.:.L..... r-. L,. ,.:>"H;"" , i 01 j. ~:,..:., (,,\1 .......:.,.. ot' ~n" I o,-.=.,"': .............lJ.Ur.:. __ . _... 1 u\", ... ,\ 1..:...... ~ .......~." mpr '........ Procer:y thaI is 3.cioinin:z a......:.d ac.iacent to and J.. ... _ .. \vhose principle buildii:lg is within t\vo hUi:ldred (200) fee: frOG the Sewer Sys;e:n shall connect such ImDro'\"e:. P7oce~'1; \vitn unci use such Se'xer . " System. in suc~ il m:ll'..rle: as this Township and/or Lt:e A:.!thori;y may require, 1Nithin sixty (60) da~/s after notice to 51.16 Owner from this Township to. make such cor....'1ection..., Id.. ,,),r:icle II, Section 2.0 I.A. orSCl'SSIO)\; i\[onroc TOl,vnship. 2. Sc::ocd Cbs3 To\vns~.i~. h2.s the authority (0 file J. mUni(l~J.! c:2.~m or lie:: upon ar: ir,dlvidu:li's failure to py the prope~:y imposed conl'.e':tiof. fe:: t.o J. s::'.\::~ " .<-~.." "J' P S '7 11J 7 ~.' -~""......; .. ::J '. ,. [ l~'~ ,...""~~ ~:~... T .....-:_;:"' ;,::j ,~th 1'; '11 li;~:, -~"..>.l-"''''''':'''''':>''';'lr'-: n rLd:::i "-..:.~'-. L.... O\\U:::i(H:- J...l,c..... . e munlC.p<..o1, .c:1. \\ ,~:.. L..\. '_....\..."';,.~..~\- COU~tv P"othonot~'I"\"';;: Or"7-1"o ar..:... ~l....>. j,'lcr'~l'r:r,;>", f'1il...,i '"LO cn-l ".:;lor''!" to t'h... ,;:"\\".,,.'" ~\.;;:--"....~ 'l~"''''~ .... . .. .. ........ .. '-.... ..~"". ....... .....:;:...!... . =-.... .........."'" '- ......'-\,.~ L..... ...,,-. ..... ..J. -,L'-... _..L C:lV the acolic:J.clc t~~s. .. .1, Ti--;, "c";c'" [';;: \i..:;+,;~ ~l....;>. '11T:-t.,or~iv 0~1"1_..;>. T'~"'n"t.l''''' l'r"-:'~ \ 11.J;;::...!'.....T-"..~ - ..... ..... -. .-... ....... ...1",. .............. .'" l. U1\.. U\v ...111:- L.l.'- .-"_==_'- ,,,.=,-,,:> 1,...... -.;;>~ l' ~r1 t ';.J"': "i ~ ..!~..:. - \ ...:... -~.~-.;;>- T' ":::!o~''''I:' J.., . -, .:>. h. ~,~ ..;>' ~ .: rt.. -.. .'...:Jo ....... J...'":,L.Ir......... 0 c\...c....J.c...~ L0 La.... ~c.\...." ~:~.......~. nc....\..r... t...~e lS.:>d.... 1n t~ b \"J.~.... b \\,1C:~dC:. L:..... "lG';;:},l'1"'O'P"S ~T":::!o r:.,....,1;,..,:::Io'~ .L'; ('oru~...:lo"l" ;0 :t....:Jo ;;:';>0',:::10" ,.:;;;...:Jo....., llMd~" t~..:Jo '~.,1'11f,:::lo ..........:::-.... ..:::.... ....6.... ....~...."......... '-'.. ..........~. h..... ........,~'-. ~. _'-...u~ u.....~ ...~.... ...L....~~.~..... If they are. ~::c lie:: s;-:outd ce cnfor::=:2. T P ',--,- "L-T1h t.., . , ne appL:c:J.CLC: por::on of 53 .5. ~ b ,)1.,;_ 5~::=S: Jl e woar: or sI..Lpe:'~;lsors n:=<.' cy ,. '.. .. d" , I or:.:r::r:ce requIre D.C~:Otr:.!:lg a1: :tCJ2.ce::~ ~roFe:-::: QI.';::e:-s !O conJ.'1e-::: \\"i~!1 anc: LLse t..1e s2.::i~:r:: ;;:.:1.\\".:0_ 'v...-.:.,...., "'h...:Jo~)"'",,," '''nr,.:--11Cl''.:::!o'''': I"I'. .t...;;> ~1\";"!...;"'''''I;-:1 m"n;c;~":;':"'- ~llrhor;r'. 0" a)'ol';'i ,"":I"'I'-~1""'- -'- ....... ;;)L....l..l.~ ...~......~..I... '-l...._~... ~I.....",; L.... '.L ..J._l.~:- '-'. (.;. J...._.... .i-'......~.: (.;,~...._ ..~;. .~_ _....." L_...: ~';>".';;>" '- .,.......;..~... p ~ "rS-,;....., ..l..,~..........;;-.-;~. + I...........~~i..... :"'n"~' '''''\'......;il1''T''" ..:Jo -;'1"':""'; ..;.:._.... ~'- ,\ '-. '-O.....J.'-. _.J...._. ~ _' _ )_. _ .....1.. :'.....u;:.;. :...C ..... .'. .J.~l.u::--' ~..~(.;,: L.i: or .....'".....~.c.. .:...1..... \\ .l~. .~,_ l;~:~....~;... f'h ....:;,-.,""..'" ......:.~r...:..;;>.., .1~.;;> ~""'~.:::!o.. .,._~.;;>~ '1-'; ~\"...:Jo"'" ..... :""OI[ !..11.1...1i....) "';;>'-'1,:"';> .,-:; ....:....:...(... ....~.....~.O[J. on ~.~e I,.;.....~_..l.. t....... ,\""..d ...... :::'- ..... .): .)L....u .....~.... L~~,- ~r:J.J.C:'Y,,", ,~....Li.........:. ....... ....~.. ...<....~:\..::..~~.:.J.:::- a.-.'<~ .00C)"C?.....'t prot:~-. ,'.' O~\.~..:Jo..:::: ;,.... c'.......,....;;>,...l" 'i""\ ~L:"''::> ~""'\'.:o.. -"--.:0.." .... --.... -... _ .... . u....... 10"-' '-'L.......... .L"" ~.....:::..... ....~ ::l; ~L....".:.., 11 d " ~..C'1~'1 .:. ..:; r.:::!o'-''' "':::!o ..'"'~ ne ~!.....L....t'- OC_ .'-~I.~t.'- "u.. ~1"":~,..:....,,.,1 pr,or"""'I"'T"'- ,",-. ~.. '1,-1:__...:.--::...,,,. ,,,,- ~..;:.~;~"",..,. -- "',- ....:"'1_:.... 0.... - h,.ll"",-T'.':::!O.-T J.~" ;..',.,. '~.;;> r'.........r~ ...."" _"". "",. }....--.:-"'.. ::......: '-..... '-'.. .......~"..o'\~.I...:;......1 ....'-.'_......~ ~v. 1...; "....1,.1.1. ~.c J.~L..~.....'-... l.l~: Ie..~ ~I....'.~J. L_.... ~,-\\...l, 5';5~e::: in ordc: for [he Tys:::::hin to ~:"'je:- :r:e :ro:.:e~": lEd (;OnSLniC~ the connc'.::~on !he::....s.e:'..es. . " . . Ei)\Ve':e:-. this is r:Ot 1r1 iss~:e in the Frese:"'.: c:J.sc. T~:e T o\vnship o.rgues that the ~--\LLgsbl.::-;':::s 3.re .:::!o,.... ':":::!o"-: -. ....1".. "h' ~ 1 ..';>" ~.._-""...., ]..1'~;~'-1 - 1"':.....- ("' .::....d -bo . hOl t.. ;(T1-,~ ""....-..:Jo_ ~i.,.::> r..."':.uJ.I.I..'- LO conne..~ LO L. e ;;)C'\I... ~~:::"'-...... ....'..L.~ I...l.oe~ l"L'l ...ont......, L ~.....t II _uS tlJ.e rl=~..L to ,-...l... L...~I.. d ' ".- prope:'tyan conSlruct tne conne-:non HSc:I. Thus. the issue before the cour: is '.vhe:he:- the A.l!gsburger house is within two hur:dred feet of the se'Ne:- syste:n. :l...nothe:- question is presented by the Augsburge:-s; nanlely, whethe:- -: 01-4361 r-LL.D. the distance ofn'io hundred fee: is the distance be:ween the SeWe: beer::!.! and the orinciok -- ... building or the sewer line and the principle building" \Vhile there lS an argur::e:~t thill the L.!er:'.! is part of the sewer system for the pU,?OSeS of the ordino.nce. we ned not. in the' end. c:;mend IXlth this issi..:e. This is bec:lusc. eve:l 2.s5uG'!in.g that Ihe milin sc'xc=-lLne Inus~ con1e \.vithin d:c ,. j., ~ '-=-ri..~ ~~ th' :::0,("1' ,..,..;~. h"-1,.,~.... r R [-i E ,..=.....', ,...,. . 1 l'-"';~'1 ~ ':l .;>.......~;..... t.\Q !~unc.~"".... J.e......~ 15 r....'iulreuJ.c..L ..~ l...e...d rIle... ana. u. . ....L""t""t.e...:::. qL.J. 1.u.l.,.... J.:s ....n "",x:-"e..l. ...i .::10'" '-.:lo";>"~"" ~,-.i -'1 . ,,' (t~ 1.....:> '"I ,,,.-,. .;::~C' = t.,' ....- ..I'l,,"r ,-i. .,.. n"'..:>.... - ' ",".::10':>. ~1..,.:> ......gL..I.""'...d:lg ....l.W- ~w.r.'e;lng or (.1..."" ;.-t.:..:-O......... 01 L...lS c...~e. conr..:.L......C...:. .l.ne....sw.reH."".l.b oe....""...n L..,- sc\ve:- sys:em. Clnd the .A..ugsburge:- hor:'lc. :l..c:~)fding to his tes~:mony. the n1J.lr. se\ve:-line is one h'~' "t' "., t- h" , I' ~u::cre~ rd!1.e~Y4elgnt eet ana nlI:c lr.c:"~es J,\vay rom tl e ;.~:.J.gs~urg~~:- nousc. :: orc.e::' to c..1r.1.........;.....1~l...""lo.ot;o o:....h"" ..,i- -"", "~"l'..."" 'Ir S'~~h~ 'U-::>'-1tl".:I..~~.l ';l...d.",\.l.n....~ j" ""."".UU.l.~,-- lL,-- ~.;J.. n l. l..I.'-- m........~.... ,\'--. LL.... ~v . l'--t" ,--n~ ~...._ .:...... .....:::i Ol.. I. .~'- ..:=~.. ..:. 2,S tuilt c.rJ,\ving tS one \vhich lndic2.~c:s [he :lr'...::li loc:lIion of the 5c',Ve: :5::s~ern as pio.ced in tl:e c~ lr.d ,\."o:,'.,(] _t... , J: ...:r;crcr~"- ':"1.:1. ........,.~ .t...;I."::>' .::>...[' "",",1.1~ ::>.,- '..~ .i:~" ......:1. :.Ol...:. . . Vl...l.:...; ~1.0r: 01 u;.;;.:..:..:.~ ..X:-l'~"" ~.:.J.'-- ~...\\.... lne '--.....~~.... r"".~Olh... L.u~ c....:.~.... to a -~-h.1~"-: ..,1 .:I........,. '"1". ..h.11.",.-...:I. ',.,,,,".:1. g,,,.;::. t ,,,J1 ,]., _\.....;1. :"1......., :" ~. :"",::"tl, '1, ~ lil~ 1~.....:.l........I......~.c...... c....I.""'lnt~. ~~or..e..:.........~.::. \\,-- \....''-- no r........._on.o ,-Ll.L,C I....... <;..;.LI..;..lr....:.c: \J1 ...e....._ .....l...1. ....:."11\.:",(1... :"l~C' ,";11 ..olv 00 'l'~~ l'~ -..;1........:..:_\1' o"r con...111s:on l'r. ~:"i- (".,-g, 1-._. ..;.;~ (,.... \1..1. 1"".. 1..1.. .1.........1. .. ..._'_.ol~.; 1,.. ~.I.'-. l. .~ .1..~ ........::::..... Ie hi, -., .:10......, ;: ..;I.,.......~I""":.........i.,"'.-:..~ ,"'1 \'l'" ,\ .!o:::.~ l"':r~" .......:,"'... . ,""'''::: 'r .1 1.._ ~1._t""".L.:.ent 01 m:lIT......:: ...........:-l.......:..........l. 01 Or. appe_ ~ _ L. ...........;_l..'l.l;.... ~_.:._....~ lS...u....._ L. "c'iiion.j T"l~.=. ...:j-....,nc' r'''u!.rg,......,..;I....':" f."r'ni"'k un T;'~s' t.nclu~~. _'... .__ .. lC ~ ~'- I....:...~I.'-. ........'1. .............'...v ...:.cu. ~:-. ........... . .\,.;..... .., T~,...,-=-<::: 1 ..,...::.,.,(-.", -I...~ ~~ ..~':"' -~";::"'.:lo""" 1-.~;-a _!...............:: .) .::::~I.."..... .c.....'_...; '.'v ~;,..... ~....\\..... ~:_~""..I..l. v.....u: b'L'-'-I",......l. . '...., , lU SerYICe re!' t,e':e:oprner:t purposes. ., E,,\.!'rn--."'c' '.sol"':ons [-!'c] n~-';-:-,,-' ..,.. " ,_,~u_.,,_,._ .,," ., ,.,~,,"."H'= cU the tlxings [sic] of Siltd nitr:lte proble:7:s are ac question. 5. A leece; t:ied Ju1:. 30,2001 asking the );Ionroe T o\,nship A'.n:-.or:!ies for answers under the Pe:msylvania ConsoEdaTed StatuTeS 2609 goes unans\vere-:.. 01-4361 M.L.D T:-:ese issues \\'e:-~ not r::lis~d J.[ the h~:1rinQ of this -:::5-': arid we. l~LlS. did not have the occo~uGit,: _ .. l. ~ to lddress the:n. \\"e are sJ.t:si::ec. ~h2.[ (he lnstJr'.: J.~pe:.ll LS not the propc::- point J.( whi(:~ to r:liSe tr.tse issues for tht tirst timt. :l. ...:gust 7 '""lj','-' . ":"_'U~ ~/'- ;J j L.~',.;"':::' J" !..!~~~ ] (\.... "l.~ . ,. r-_",~.:::, . / J"~~" Booo- F,~,,;"~ ....._....~ =_.1. __...:........ F or the T o\\"(1sht:J Ti::-.othy R. ...i.'~:::;52:.::-;e:' J-...,..~: C ~ '1(1':;:t.,I""""'O'1" _...... .;...'- =_l.. .'":"" O'.'.::t~S [\ THE CO:y[\IO:\\HAL TH COrRT Of PE:\:\SxL VA:\IA iYJonroe T o\vnship v. 00. [589 C.D. 2002 SCB\IITTED: Februar;i 7,2003 Timothy R. Augsburger and Janel C. Augsburger, Husband and 'vVife. Appellants BEFORE: HO.'1"ORABLE JA.:vrES GARD:"ER COLl:\S, President Judge HO(\iOR.\.BLE BO:":\IE BRlGA:"CE LEADBETTER, Judge HO:"OR.\.BLE JOSEPH F. McCLOSKEY, Senior Judge opr:"lO:" :"OT REPORTED .:vIDIORA:"Dc.:vr OP1:"1O:\ BY Jl"DGE LEADBETTER FILED: J';r\e 3, 2003 Timothy R. and Janel C. Augsburger appeal, pro se, from the order of the COUlL of Common Pleas of Cusberland Cour.t'Y, wh'.ch denied their petition to strike a municipal lien for a sewer cormection fee. The Augsburgers contend that the evidence does not establish tha[ the distance from their home to the sewer main falls within the distance at which cormection to the seVier is mandatory under the applicable municipal ord~nar,ce. vVe find sufficient evidence justifying the imposition of the cormection fee and, therefore, affirm. The Augsburgers own a single-family residence, a 220-year old home, on 1.3 acres in Boiling Springs, Monroe To\vnship, Cumberland County. The property is serviced by an on-site well and septic system. In April of 200 I, folio loving the installation of sanitary sewer lines, the To\ovnship sen'ed the Augsburgers with written notice, pursuant to To\ovllship Ordinance 2000-i. that thev must connect their home to the sewer svstem because it is located within two . . hundred (200) feet of the system. Pursuant to Resolution 00-5 of the Township Municipal Authority, the Augsburgers' connection to Ll-te selover is subject to a tapping fee in the amount of 53,000.00. The Augsburgers failed to corUlect to the selover and failed to pay the tapping fee. Consequently, on July 19, 2001, the Township filed a municipal lien in tl-te amount of the fee. The Augsburgers petitioned common pleas to suike tJ.1e lien, contending therein that their home is located more than t\VO hundred feet from the system." Common pleas directed that the Augsburgers and the Township officials convene at the property with an engineer to measure the distance from the house to the sewer. On September 4, 200 I, Ronald E. Stevens, a professional engineer and land surveyor. measured the critical dist2..llce. Stevens determined that the distance from the front of the Augsburgers' home to the "clean out" access in 1 In pertinent part, Section 2.0 I of Ordinance 2000-7 provides: The Owner of an Improved Propercy that is adjoining and adjacent to and whose principal building is within (\';0 hundred (200) feet from the Sew'er System shall connect such Improved Property with and use such Sewer System, in such manner as this Township and/or the Authority may require, within sixty (60) days after notice to such Owner from this Township to make such connection. . . . 2 The Augsburgers also challenged in their petition the Municipal Authority's condemnation of 2.1, easement on their property for installation of the sewer liries. The Authority ultimately placed the sewer line under the road in front of the Augsburger property and, therefore, revoked the condemnation. ') the lateral pipe' coming from the sevver main to be 189 feet and 3 inches and the distance from the home to the sewer main to be 198 feet and 9 inches. Based on testimony by Stevens, common pleas found that the Augsburgers' house is located vvithin the distance requiring sewer connection and, therefore, the court refused to strike the lien. The Augsburgers filed the present appeal. On appeal, the Ausburger contend that their house is located 216 feet back from the front property line, that their waste '.vater pipes exit the hooe at the rear of the building m:lking the actual connection dis:ance more th:ln 230 feet and that their in-ground septic system is functioning well so that they do not need to use the public sewer. Tne Augsburgers cannot prevail in any of these contentions. The dist2..t"lce from the sewer to the Augsburger home is a question of fact, which is solely for comlT1on pleas to determine. So long as G.1e evidence presented at the hearing provided common pleas with a sufficient basis on which to make a finding as to the critical distance, we will not disturb this finding on appeal.~ The testimony by S ,evens provided a sufficie:H basis for common pleas to find that the Augsburgers' home is within the distance requiring sewer hook-up under the ordinance. It is well established that once it has been deter;nined that a property o'.\11er is required to tap into municipal sewer or water ser,ices the fee for doing so , As detlned in Township Ordinance 200- 7, a lateral is the pipe extending from the sewer main under the roadway to the property of a homeowner and to which the homeo\vner would connect the pipe coming from the home. As defined, the "sewer system" includes the sewer mains and the laterals. ~ \Vhere the e'iidence provides a sufficient basis for commen pleas' factual determination, we will not disturb the finding e.ven if we might have found differently had we been sitting as the trial court. See In re Condemnation of Lands of Laughlin, 814 A.2d 872, 877 (Pa. Cmwlth. 2003). By this comment, we do not mean to suggest that a different fact determination was warranted in the present case. \Ve intend only to explain that because the testimony by a qualified engineer provides a basis for common pleas' finding we, as an appellate court, cannot make a different finding. becomes due despite the f:J.ilure to actually hook-up. Pelton v. Pine Creek Jiun. Auth., 431 A.2d 335, 33- (Pa. Cmwlth. 1984): Marnickas v. Tremont Aiun. Auth., 445 A.2d 1383, 1335 (Pa. Cmwlth. 1982) (stating that individual propeny O\Vner may not elect to not tap into a se\Ver system accessible to it). Therefore, common pleas properly concluded that the Augsburgers are respolsible for payment ane the li en \vas properl y fi 1 ed. '. The Augsburgers' contentions questioning the need or wisdom in requiring them to hook-l:p and questioning how well their hook-up would function in light of the allegedly gTeater than 200 foot distance from their waste water pipe to the se\ver are questions this coun cannot properly address. First, as common pleas pointed out in its opinion, these questions were not properly raised during the tearing. Second, even if these issues had been raised dc.ring the hearing, they do not provide a reason to strike l1e lien. The TO\\TIship has the power purSU2.J.lt to state statute to determine the need for sewers and to require certain prope:cy owners to connect to the system. Section 2502 of the Act of May 1, 1933, P.l. 103, added by the Act of November 9,1995, P.l. 350,53 P.S. S 67502, The To\vnship is authorized by Section 2502 to require all properties adjacent to and within 200 feet of the sewer system, as defined in the ordinance, to connect rather than making individual determinations based on which properties currently have failing septic systems. Accordingly, \1.e affirm. ~.kdk.~+t-- BONNIE BRlGA.;.'iCELEADBETTER. Judge . . - ,1 I~ THE CO:\-L\IO:\\YEAL TH COCRT OF PE~~S):1. VA:\IA Monroe T o\vnship v. No. 1589 C.D. 2002 Timothy R. Augsburger "oc Janel C. Augsburger, Husband and \Vife, Aooellams . . ORDER A="'D NOV\'. this 3-'" day of Ji.::1e ( 2003, ,he order of the Coun: of Common Pleas of Cumberland Comr;- in the aboye captioned matter is hereby AFFIR.\IED. C&:-:lf:2j i:::~ ~.~,~ -:.~,~c~c ,~.~:.: ',j ~. zee3 I ----::<. I I ! I...) .Le~.I~<<+___ BO::i::iIE BRIGA.'iCE LEADBETTER. Judge ar;c: Crcs: ~:dt IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT MONROE TOWNSHIP, No. 531 MAL 2003 Respondent Petition for Allowance cf Appeal from trle Order of the Commonwe,,!th Court v. TIMOTHY R. AUGSBURGER Ai'JD JANEL~.AUGSBURGER,HUSBAND AND WIFE, Petitioners ORDER PER CURIAM AND NOW, tr,is 1-"'" de:; of i'jovember, 2003, the Pe:iticn for A.:!cwance of Appeal is hereby DENIED. TRUE &. CORRECT COpy ATiE3T:j,,!J.DV 1 7 20ip. . ,. I ,/'-:)J.I./}/ f,f"'bkY) SHIRL=:yJ .11 PHIPO.~ No.: 531 MAL 2003 Carbon Copy Recipient List Addressed To: Timothy R. Augsburger 1288 Boiling Springs Road Boiling Springs, PA 17007 Carbon Copied: Attorney Jennifer B. Hipp Law Ofcs of James Begar One W Main Street Shiremanstown, PA 17011-5371 James D. Bogar, Esq. Bogar, James D., Law Offices of 1 W. Main Street Shiremanstown, PA 17011-6371 The Honorable Kevin A. Hess Court of Common Pleas of Cumberland County Cumberland County Courthouse, One Courthouse Sq Carlisle, PA 17013 1C~3 -iCiS3 10/1,99 MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. o 'i ' /)... " /' I ...J... <...",,: ~ TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, 1288 Boiling Springs Road Boiling Springs, PA 17007, Owners 01-43(.;1 /y\L'.l MUNICIPAL LIEN ..k.,,-,,-- WRIT OF SCIRE FACIAS SUR MUNICIPAL CLAIM The Commonwealth of pennsylvania to TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, husband and wife, Greeting: Whereas, the Monroe Township Municipal Authority, of 1220 Boiling Springs Road, Mechanicsburg, pennsylvania, 17055, (hereinafter referred to as the "Authority"), on July 19, 2001 filed its Municipal Lien for Sewer Connect:ion in the Court of Common pleas of Cumberland County, Pennsylvania, at No. 01-4361 Municipal Lien Docket 2001, for the sum of $3,000.00, with interest in the amount of ten (10) percenl:, along with penalties and all costs, including attorneys' fees, for a sewer connection fee against all that certain lot of ground, including any improvements located thereon, same being known and numbered as 1288 Boiling Springs Road, Boiling Springs, Monroe Township, Cumberland County, Pennsylvania, 17007, owned or reputed to be owned by you, said property being more fully described as follows: ALL THAT CERTAIN tract or parcel of land situate in the Township of Monroe, County of Cumberland and State of Pennsylvania, being more particularly bounded and described according to'a survey by John C. Brilhart Surveying and Mapping Services (Charles W. Junkins, Registered Surveyor), dated January 17, 1983, as follows, to wit: BEGINNING at a point marked by a nail in the centerline of the public road known as Legislative Route 507, (T.R. 174), at the corner of lands now or formerly of Genevieve A. Diehl, said point being referenced eastwardly along said centerline a distance of 546.8 feet from the intersection of said centerline with the centerline of Zimmerman Road; thence along the line of said lands now or formerly of Genevieve A. Diehl North 18 degrees 2 minutes West a distance of 371.32 feet to an iron pin; thence continuing along the same North 74 degrees 15 minutes East a distance of 131.07 feet to an iron pin on the line of lands now or formerly of John Harbold; thence along the line of said lands now or formerly of John Harbold South 14 degrees 53 minutes 30 seconds East a distance of 78.79 feet to a post; thence continuing along the same North 74 degrees 50 minutes East a distance of 39.93 feet to a point at the corner of a concrete wall at the corner of lands now or formerly of Ruth Rinehart; thence along the line of said lands now or formerly of Ruth Rinehart South 15 degrees 47 minutes East a distance of 284.43 feet to a point marked by a nail in the centerline of Legislative Route 507 (T.R. 174) aforesaid; thence along the centerline of Legislative Route 507 (T.R. 174) along a curve to the left having a radius of 2864.93 feet, an arc distance of 155.39 feet to a nail, the point and place of BEGINNING. CONTAINING 1.30 Acres and being improved with a two and one- half story frame dwelling house and outbuildings. BEING THE SAME PREMISES which Julie L. Ober and Brian K. Ober, by Deed dated September 18, 1998 and recorded in the Cumberland County Recorder of Deeds Office on September 21, 1998, in Deed Book 185, Page 674, granted and conveyed unto Timothy R. Augsburger and Janel C. Augsburger, owners. Tax Property Map Parcel No. 22-28-2401.-005 .. And whereas, We have been given to understand that said municipal claim is still due and unpaid, and remains a lien against the said property; NOW, you are hereby notified to file your Affidavit of Defense to said claim, if defense you have thereto, in the office of the Prothonotary of our said Court, within fifteen (15) days after service of this Writ upon you. If no Affidavit of Defense be filed within said time, judgment may be entered against you for the whole claim, and the property described in the claim be sold to recover the amount thereof. Witness, the Honorable George E. Hoffer, President Judge of our said court, this .:9 '-f day 0 f -IlJ<(..".j~ 2004. c,,~ I( /(77'\ Curtis R. Long, prothon~ary Bogar, Esquire LD. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 ~~~ Je n'fer B. ipp, Esquire Atto ney LD. No. 86556 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 ~ Date: March 24, 2004 Solicitors for Monroe Township Municipal Authority MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C I - '1 '1 c.., I rn ,-6 ~"""- vs. o L{- /2. 1L C"V"{ -- leVM TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER 1288 Boiling Springs Road Boiling Springs, PA 17007, Owners MUNICIPAL LIEN PRAECIPE FOR THE WRIT OF SCIRE FACIAS SUR MUNICIPAL CLAIM To: Curtis R. Long, Prothonotary Dear Sir: On behalf of the Monroe Township Municipal Authority, claimant in the above-captioned matter, kindly issue the attached Writ of Scire Facias Sur Municipal Claim. Please be advised that the Monroe Township Municipal Authority filed a Municipal Lien at Docket No. 01-4361 in the amount of $3,000.00, with interest along with penalties and all costs, including attorney's fees, against property owned by Timothy R. Augsburger and Janel C. Augsburger known and numbered as 1288 Boiling Springs Road, Boiling Springs, Pennsylvania, 17007. Please be advised that said claim is still due and unpaid, and remains a lien against said property described therein. Monroe Township Municipal Authority By: L\~\:::'~r James . Bogal:' , Es ire By: J ennif l \, '~" . HJ. p, Esqu~re March 24, 2004 Solicitors for the Monroe Municipal Authodf:i'j<; '::: Township r.o,' '~.~'.~.~C'-ORO .~.., r.\ r:;;~',"':-;-" '';"1 . ....,:_;':::. ;;-i.. :.u ',/... ',,- ,;:7YI ~.. kt "L.__~:,..~..., .'. ..._ ^~ .4-" . -" .. .A-::=::f / j ~~' .'-c",",:~~''l ~ne~~tr'~ K~~UN~ - K~~U~~ , CASE NO: 2004-01236 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MONROE TOWNSHIP MUNICIPAL AUTH VS AUGSBURGER TIMOTHY R ET AL ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County,Pennsylva~ia, who being duly sworn according to law, says, the within WRIT OF SCIRE FACIAS was served' upon AUGSBURGER TIMOTHY R the DEFENDANT , at 1700:00 HOURS, on the 30th day of March , 2004 at 1288 BOILING SPRINGS ROAD BOILING SPRINGS, PA 17007 by handing to TIMOTHY R AUGSBURGER a true and attested copy of WRIT OF SCIRE FACIA,S together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 4.83 .00 10.00 .00 32.83 So Answers: r;/""V.-<f . w;_ .~_ .t:.,.J'" ~,.;:.: _____ ~ - .............~ .. ~ -"'- ~.-:: ~~----~ . ., I R. Thomas Kl in-a day of 03/30/2004 . JAMES D BOGAR Br~+:;~} Frs-L a>b."~,,. \ \ ,t;fU1 , Deputy Sheriff Sworn and Subscribed to before me this A.D. Prothonotary ..................'-.... .1.- .1.- .... ...~......... ..............~ ,CASE NO: 2004-01236 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND MONROE TOWNSHIP MUNICIPAL AUTH vs AUGSBURGER TIMOTHY R ET AL ROBERT BITNER Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SCIRE FACIAS was served' upon AUGSBURGER JANEL C the DEFENDANT , at 1700:00 HOURS, on the 30th day of March , 2004 at 1288 BOILING SPRINGS ROAD BOILING SPRINGS, PA 17007 by handing to TIMOTHY R AUGSBURGER, HUSB~~~ a true and attested copy of WRIT OF SCIRE FACI.A.S together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 6.00 .00 .00 10.00 .00 16.00 -,-, ,--'-. .:i;.r.ft:;~'>:""'(~ '.,~"'~ I _~"," .' R. Thomas Kline 03'/30/2004 JAMES D BOGAR me this day of "'-) ~ BYj " I n-~. I \'<~. ('>.~5 \~,~t.d \ Deputy Sheriff Sworn and Subscribed to before A.D. Prothonotary MONROE TOWNSHIP MUNICIPAL AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 04-1236 CIVIL ACTION - LAW , TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, 1228 Boiling Springs Road Boiling Springs, PA 17007, Owners NO . 01- 4 3 61 MUNICIPAL LIEN PRAECIPE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: The Defendants having failed to file an Affidavit of Defense or otherwise respond to the Writ of Scire Facias served in the within matter, please enter judgement in fe,vor of the Plaintiff and against the Defendants in the amount of $3,000.00, plus interest in the amount of $940.80 plus interest from April 17, 2004 in the amount of ten (10%) percent, plus attorney's fees in the amount of $5,106.20, plus costs. Pursuant to the Municipal Lien Law, 53 P.S. !l 7106, please assess attorney's fees in the above amount. Notice as required by law has been previously provided to the Defendant. By: r, Esquire 1. No. 19475 One West Main Street Shiremanstown, PA 17011 (717) 737-8761 Btt' J . B ~H' . . ennl. e,r . l.pp, Esqul.re Attor e,y 1.D. No. 86556 One West Main Street Shire~lnstown, PA 17011 (717) 737-8761 May 19, 2004 Solicit:ors for Monroe Township Municipal Authority CERTIFICATE OF SERVICE We hereby certify that we a~e this date serving a copy of the Praecipe as filed this date with the prot:honotary of Cumberland County, by sending the same upon the persons and in the manner indicated below: Service'by first-class mail addressed as follows: Timothy R. Augsburge~ Janel C. Augsburger 1288 Boiling Springs Road Boiling Springs, PA 17007 Monroe Township Municipal Authority By: ipp, Esquire 86556 By: , Solicitors for the Monroe Township Municipal Authority One West Main Street Shiremanstown, PA 17011 (717) 737-8761 May 19, 2004 ,-"-' ...' n C:~ " , -< - r-> = c::J .r- C, c:: ~: o 'T1 ::;:1 _..l_ ::n rt'r-- -r,Pl ~,~,o 6h ~i'.i-i ':.":"2 ?~':) (''-)it1 I .,.-.. 5) .< r" r" ?: C,-:) (j,,') w MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-4361 MUNICIPAL LIEN TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, Claimant vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1236 CIVIL ../ TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners IN RE: MOTION TO STRIKE/OPEN JUDGMENT ORDER ....~ AND NOW, this 17 day of July, 2004, in consid~ration of the within motion and the answer filed thereto, it is ordered and directed that: I. The petition shall be decided under Pa.R.C.P. 206.7. 2. Depositions shall be completed within forty-five (45) days of this date. 3. Argument shall be held on Thursday, September 30, 2004, at 9:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, James D. Bogar, Esquire Jennifer B. Hipp, Esquire For the Claimant .;4) ~;.~ 7.08.0'/ 0--' L)-. . '\IIN'4I\\),SN\SJd }J.N\lO~) C.\,.':~-!:Ej(W'\\\::l 2 \ :2 I-lei g - -\lIf lj~~1. N-JV)..Q\~O\-\\.O'dcl 3\-11. dO 3:J\:!dQ-O:f\\:l Don Bailey, Esquire For the Owners :rlm MONROE TOWNSHIP, Claimant vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA 01-4361 MUNICIPAL LIEN TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, Claimant vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1236 CIVIL TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners IN RE: MOTION TO STRIKE/OPEN JUDGMENT AND NOW, this ORDER 3>1 day of August, 2004, argwnent on the above-captioned matter set for September 30, 2004, is continued to Wednesday, October 6,2004, at 2:00 p.m. in Courtroom Nwnber 4, Cwnberland County Courthouse, Carlisle, P A. ~es D. Bogar, Esquire Jennifer B. Hipp, Esquire For the Claimant > ~. Bailey, Esquire For the Owners :rlm BY THE COURT, ,;14 _. i:(", ~"~ l-'~ fi S1;~:5 u..-:r 1,1_ \_:.: ,~)(:~ DO. CWO- dlLl t..l-:r: I- l,L o ,.0 C') 6\ :n; ....:.:J:. C'") I ,~ ~ _-T <"" <::> <N ?-::: '~?" ,(.',.. ~3) ~~; '"'-'- ;:j '?- ";/;; ~ ::::;; ','." ?..., i;.1UJ (f.){"'_ ::J <J MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-4361 MUNICIPAL LIEN TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 04-1236 CIVIL TIMOTHY R. AUGSBURGER and : JANEL C. AUGSBURGER, Owners IN RE: MOTION TO STRIKE/OPEN JUDGMENT ORDER AND NOW, this J 0 day of July, 2004, argwnent on the above-captioned matter set for September 30, 2004, is continued to Wednesday, October 6, 2004, at 2:00 p.m. in Courtroom Nwnber 4, Cwnberland County Courthouse, Carlisle, PA. .,fames D. Bogar, Esquire Jennifer B. Hipp, Esquire For the Claimant > BY THE COURT, ~,AJ . Hess, 1. {.)'Jon Bailey, Esquire For the Owners :rlm Og-(J~-O! C) f'..;) c- C::~ --- 5# ~ r- ee) I Ul -. ~..,,'" o ", ..., -r hi:D ,-- -ofn cug 'J ~ij..2 :<li~ (jrn ~?! "~;J -< '>? W U1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Monroe Township Claimant 01-4361 Municipal Lien 04-1236 Civil v. Timothy R. Augsburger and Janel C. Augsburger Owners ~OTION FOR RE~ONSIDERATION AND NOW, the owners, by and through their attorneys at Bailey, Stretton & Ostrowski, requests this honorable court to reconsider its Order of November 30,2004 and avers as follows: 1. A hearing was held on November 29, 2004 in Courtroom Number 4 of the Cumberland County Courthouse before the Honomble Judge Hess on the issue of whether the imposition of attorney fees was appropriate in this case. 2. On November 30, 2004, the judge issued its order that attorney fees could properly be imposed pursuant to 53 P.S. ~ 7106(al). The court scheduled a hearing for Wednesday, February 23, 2005 to determine what would be a reasonable attorney fee to impose against the owners. 3. The owners contend that 53 P.S. ~ 7106 does not apply to the participants in this case. The title to this section reads "Municipal claims fll'St lien; cities of first class; docketing; judgment; execution." 4. A city of the fIrst class is defIned as a city which contains a population of one million or over according to 53 P .S. ~ 1 01. As of the 2000 census, Boiling Springs, Pennsylvania, where the owner's property is located, has a population of 2,769 - considerably less than that needed for a city of the first class. Wikipedia:The Free Encyclopedia (Nov. 2004), available at http://en. wikipedia.org/wikilBoiling_ Springs,_ Pennsylvania. 5. Although 53 P.S. ~ 7106 states that it applies to "All municipal claims which may hereafter be lawful imposed or assessed on any property in this Commonwealth." the designation in the title of the section suggests that it was the legislature's intention to only have this section apply to municipal claims that arise in Philadelphia, the only first class city according to 53 P.S. 101. 6. The Pennsylvania legislature amended 53 P.S. ~ 7106 in 1996 to include the provision for imposition of attorney fees on the collection of a delinquent account. If the legislature would have wanted this section to apply to municipal claims in all cities and counties it would have amended the title to so reflect by easily removing the wording "cities of first class. " 7. The only specifIc mention of "cities of the fIrst class" within 53 P .S. ~ 7106 is in section 53 P.S. ~ 7106(b) which states "With the exception of those claims which have been assigned, any municipal claim, including interest, penalty and costs, imposed by a city of the first class, shall be a judgment only against the said property when the lien has been docketed by the prothonotary." This section is evidence that interest, penalty and costs, including attorney fees, were only intended to be imposed on individuals residing within a city of the first class. 9. The lien for the construction of sewers through private lands is authorized in cities of the second class, a county of the second class or by a city of the third class by 53 P.S. ~ 7107. 10. The imposition of attorney fees for cities of the second class, counties of the second class or cities of the third class are not addressed under 53 P.S. ~7107. 11. The owners rely on the case of Township of Springfield v. Thomas, 645 A.2d 359 (Pa.Cmwlth.1994) only for the proposition that attorney fees can only be issued on municipal liens if provided for by statute. In that case, the Pennsylvania Commonwealth Court found that attorney fees were not appropriate on owners, because at that time 53 P.s. ~ 7106 did not specifically address the authorization of attorney fees. As previously mentioned, the Pennsylvania legislature amended 53 P.S. ~ 7106 to grant attorney fees for municipal claims that are authorized under this statute. The legislature chose to not authorize attorney fees for collection efforts on properties located within cities of the second class, a county of the second class or by a city of the third class by not amending 53 P.S. ~ 7107.. 12. At the least, 53 P.S. S 7106 is clearly ambiguous. It states in the title "cities of the first class" which seems to imply that it only applies to Philadelphia properties. The first line of the statute reads "All municipal claims which may hereafter be lawfully imposed or assessed on any property in this Commonwealth..." which implies that the section is to apply to municipal liens on any property within Pennsylvania, regardless of whether it is located within a city of the first class, a city of the second class, a county of the second class or a city of the third class. The words within section (b) that states "any municipal claim, including interest, penalty and costs, imposed by a city of the first class..." which implies that penalties and costs can only be imposed on cities of the fIrst class. The Court should fmd that the statute is ambiguous. It is a general principle that when a statute is ambiguous, it should be construed in favor of the party who could be injured by an alternative interpretation. See, Com v. Berryman, 649 A.2d 961 (Pa. Super. 1994), (when a criminal statute is ambiguously drafted, the ambiguity should be resolved in favor of the accused); Workmen's Compensation Appeal Bd. v. Hartlieb, 348 A.2d 746 (Pa. 1975), (provisions of Workmen's Compensation Act are remedial in nature and are to be liberally construed, with borderline interpretations resolved in favor of the injured employee). 13. Additionally, 53 P.S. ~7106(a) provides: "All municipal claims which may hereafter be lawfully imposed or assessed on any property in this Commonwealth, and all such claims heretofore lawfully imposed or assessed within six months before the passage of this act and not yet liened, in the manner and to the extent hereinafter set forth, shall be and they are hereby declared to be a lien on said property, together with all charges, expenses and fees incurred in the collection of any delinquent account, including reasonable attorney fees under subsection (a. I), added thereto for failure to pay promptly..." 53 P.S. ~ 7I06(a). The attorney fees that are being litigated against the Augsburger's are for fees that incurred during the dispute as to whether the Augsburger's should be forced to participate in the sewer system initiated by Monroe Township, and not in pursuing the collection of delinquent sewer fees. Therefore, it is not appropriate to impose upon the owner the fees for which the attorney is charging Monroe Township to represent them in the dispute. WHEREFORE, the owners respectfully ask this court to reconsider its November 30, 2004 order to impose attorney fees on the owner and asks this court to declare that 53 P.s. ~ 71 06 and 53 P.S. ~ 7107 does not authorize the imposition of attorney fees on a property within the county of the second class. Respectfully submitted, al::uCnUt,~ eri D. Coover, Esquire Attorney ID# 93285 Bailey, Stretton & Ostrowski 4311 N. 6th Street Harrisburg, P A 17110a(717)221-9500 f.J " f' ; :;" ( ',1" ()ip I ' _ (ir'. ! JjU_ !,~'L// j::: t,!... I.~) t"t~ ,,..< C,J : i .: L.:J -:;- i,'-;'} C.:::> '" D .~ -. " c;;: '1_:.: Q , ~- ,"..- .,~ - -) ;--1 ,..." : . __.J (~J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Monroe Township Claimant 01-4361 Municipal Lien 04-1236 Civil v. Timothy R. Augsburger and Janel C. Augsburger Owners ORDER AND NOW, this _ day of ,2004, the Court orders that the Petitioner is not liable for any attorney fees as being claimed under 53 P.S. ~ 7106. By the court, J CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certify that I have served a true and correct copy of the foregoing document by depositing such in the U.S. Mail, first class, postage prepaid, addressed as follows: James D. Bogar, Esquire Jennifer B. Hipp, Esquire Attorneys at Law One West Main Street Shiremanstown, PA 17011 ? By:r; ( S~eri D. Coover, Esquire JA 10 #93285 Bailey, Stretton & Ostrowski 4311 N. 6th Street Harrisburg, P A 17110 (717) 221-9500 f;~ ~, \--- , -, U 1'- ~~], , lL. .:,__ ~ _.~". ()(::-: (.s C/ lUC.. -1 [L~ Lt_ G _':t' 0.J c..l...- 0"1 I C._) L,J CJ C.) <:::'.~ <:'-... (~ i ! ,.--) () MONROE TOWNSHIP MUNICIPAL AUTHORITY Claimant vs. TIMOTHY R. AUGSBURGER JANEL C. AUGSBURGER 1228 Boiling Springs Road Boiling Springs, P A 17007 ) ) ) ) ) ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY" PENNSYL VANIA _ NO. 04-12:36 'CIVIL ACTION LAW NO. 01-4361 MUNICIPAL LIEN ENTRY OF APPEARANCF! Kindly enter the appearance of Sheri D. Coover, Esquire, as co-counsel on behalf of Timothy R. Augsburger and Janel C. Augsburger in the above-captioned matter. Respectfully submitted, BAILEY, STRETTON & OSTROWSKI lYD~ Sheri D.Coover, Esquire 4311 North Sixth Street Harrisburg" PA 17110 (717) 221-9500 CERTIFICATE OF SERVICE I, Sheri D. Coover, do hereby certify that on November 23,2004, I served a true and correct copy of Entry of Appearance to the following by First class postage prepaid mail: James D. Bogar, Esquire Jennifer B. Hipp, Esquire One West Main Street Shiremanstown, PA 17011 Respectfully submitted, BAILEY, STRETTON & OSTROWSKI By: lu.~UDuL heri D.Coover, Esquire 4311 North Sixth Street Harrisburg, P A 17110 (717) 221-9500 a c: ?l:. -0 r.q rnft., Z:.1,' z~~ ~c' ~ ~c: Zo J>c: ~ ~ c:::::t .;:- ::z: ~ N W ~ :r..,., ni~ :B o~ :> "T, ..,., ~~ 9 - ~ -0 :x: .r:- .. ~ .~ DEe 1 3 2004.Y IN THE COURT OF COMMON PLJEAS OF CUMBERLAND COUNTY, PENNSYLV ANlA Monroe Township Claimant 01-4361 Municipal Lien 04-1236 Civil y-'" v. Timothy R. Augsburger and Janel C. Augsburger Owners ORDER AND NOW, this ~-day of ~ . -f4s. ,. oJ /h':" -I .Ji- ~ , 2004;"tlul CelH19fser3 tMt tIx ~titi6fter is Bet liaele fer 8fty attamey fees 8S eeiag elaimed. t1lldCl $3 Pogo ~ '1166. ..l:jPI'.""--l IA ill 1lj4'': k (.#fIIJ,''/eA.I ~ 6- J..c...b":J 4l''\.. rod. 87 uf r 1/ ~ !'1,..-~ -h. By the court, -H- 4;0~ '1"-, /",..1 ~. J IN THE COURT OF COMMON PL'EAS OF CUMBERLAND COUNTY, PENNSYL V ANlA Monroe Township Claimant 01-4361 Municipal Lien 04-1236 Civil v. Timothy R. Augsburger and Janel C. Augsburger Owners MOTION FOR RECONSIDERATION AND NOW, the owners, by and through their attomeys at Bailey, Stretton & Ostrowski, requests this honorable court to reconsider its Order of November 30, 2004 and avers as follows: 1. A hearing was held on November 29, 2004 in Courtroom Number 4 of the Cumberland County Courthouse before the Honorable Judge Hess on the issue of whether the imposition of attorney fees was appropriate in this case. 2. On November 30, 2004, the judge issued its order that attorney fees could properly be imposed pursuant to 53 P.S. ~ 7106(a.l). The court scheduled a hearing for Wednesday, February 23, 2005 to determine what would be a reasonable attorney fee to impose against the owners. 3. The owners contend that 53 P.S. 97106 does not apply to the participants in this case. The title to this section reads "Municipal claims fll'st lien; cities of first class; docketing; judgment; execution." 4. A city of the frrst class is defined as a city which I;x)ntains a population of one million or over according to 53 P .S. ~ 1 0 1. As of the 2000 census, Boiling Springs, Pennsylvania, where the owner's property is located, has a population of 2,769 ~ considerably less than that needed for a city of the first class. Wikipedia:The Free Encyclopedia (Nov. 2004), available at http://en.wikipedia.orglwikilBoilin8-Springs,_Pennsylvania. 5. Although 53 P.s. ~ 7106 states that it applies to "'All municipal claims which may hereafter be lawful imposed or assessed on any property in this Commonwealth." the designation in the title of the section suggests that it was the legislature's intention to only have this section apply to municipal claims that arise in Philadelphia, the only first class city according to 53 P.g. 101. 6. The Pennsylvania legislature amended 53 P.g. ~ 7106 in 1996 to include the provision for imposition of attorney fees on the collection of a delinquent account. If the legislature would have wanted this section to apply to municipall claims in all cities and counties it would have amended the title to so reflect by easily removing the wording "cities of first class. " 7. The only specific mention of "cities of the first class" within 53 P.S. ~ 7106 is in section 53 P.g. ~ 7106{b) which states "With the exception of those claims which have been assigned, any municipal claim, including interest, penalty and costs, imposed by a city of the first class, shall be a judgment only against the said property when thle lien has been docketed by the prothonotary." This section is evidence that interest, penalty and costs, including attorney fees, were only intended to be imposed on individuals residing within a city of the first class. 9. The lien for the construction of sewers through private lands is authorized in cities of the second class, a county of the second class or by a city of the third class by 53 P .S. ~ 7107. 10. The imposition of attorney fees for cities of the S4~ond class, counties of the second class or cities of the third class are not addressed under 5,3 P.s. ~7107. II. The owners rely on the case of Township o/Springfield v. Thomas, 645 A.2d 359 (Pa.Cmwlth.1994) only for the proposition that attorney fees can only be issued on municipal liens if provided for by statute. In that case, the Pennsylvania Commonwealth Court found that attorney fees were not appropriate on owners, because at that time 53 P.S. ~ 7106 did not specifically address the authorization of attorney fees. As previously mentioned, the Pennsylvania legislature amended 53 P.S. ~ 7106 to grant attorney fees for municipal claims that are authorized under this statute. The legislature chose to not authorize attorney fees for collection efforts on properties located within cities of the second class, a county of the second class or by a city of the third class by not amending 53 P.S. ~ 7107.. 12. At the least, 53 P.S. ~ 7106 is clearly ambiguous. It states in the title "cities of the first class" which seems to imply that it only applies to Philadelphia properties. The first line of the statute reads "All municipal claims which may hereafter be lawfully imposed or assessed on any property in this Commonwealth..." which implies that the section is to apply to municipal liens on any property within Pennsylvania, regardless of whether it is located within a city of the ftrst class, a city of the second class, a county of the second class or a city of the third class. The words within section (b) that states "any municipal claim, including interest, penalty and costs, imposed by a city of the ftrst class..." which implies that penalties and costs can only be imposed on cities of the ftrst class. The Court should ftnd that the statute is ambiguous. It is a general principle that when a statute is ambiguous, it should be construed in favor of the party who could be injured by an alternative interpretation. See, Com v. Berryman, 649 A.2d 961 (Pa. Super. 1994), (when a criminal statute is ambiguously drafted, the ambiguity should be resolved in favor of the accused); Workmen's Compensation Appeal Bd. v. Hartli(:b, 348 A.2d 746 (Pa. 1975), (provisions of Workmen's Compensation Act are remedial in nature and are to be liberally construed, with borderline interpretations resolved in favor of the: injured employee). 13. Additionally, 53 P.S. ~7106(a) provides: "All municipal claims which may hereafter be laVtfully imposed or assessed on any property in this Commonwealth, and all such claims heretofore lawfully imposed or assessed within six months before the passage of this act and not yet liened, ml the manner and to the extent hereinafter set forth, shall be and they are hereby declared to be a lien on said property, together witb all charges, expenses and fees incurred in the collection of any delinquent account, including reasonable attorney fees under :mbsection (a.l), added thereto for failure to pay promptly..." 53 P.S. ~ 7106(a). The attorney fees that are being litigated against the Augsburger's are for fees that incurred during the dispute as to whether the Augsburger's should be forced to participate in the sewer system initiated by Monroe Township, and not in pursuing the collection of delinquent sewer fees. Therefore, it is not appropriate to impose upon the owner the fees for which the attorney is charging Monroe Township to represent them in the dispute. WHEREFORE, the owners respectfully ask this court to reconsider its November 30, 2004 order to impose attorney fees on the owner and asks this court to declare that 53 P .S. ~ 71 06 and 53 P .S. ~ 7107 does not authorize the imposition of attorney fees on a property within the county of the second class. Res]pectfully submitted, eJri D. Coover, Esquire J\ttorney ID# 93285 Bailey, Stretton & Ostrowski 4311 N.ljth Street HMrisburg, P A 17110 (717)221-9500 I 1i.1 ' ( I I;: ( ',1 Cl I , (:) r: IU(_'': L~~" L[! r:;= l!... (~) ,e....) l i j C::J -~. (~ ;') e,':) C'-.., <:::) .,. -- ~2 ..;- '1....;,: a 'c:r; . ,.. ;_..1 .,n _ _..l C) IN THE COURT OF COMMON PL]~AS OF CUMBERLAND COUNTY, PENNSVL V ANIA Monroe Township Claimant 01-4361 Municipal Lien 04-1236 Civil v. Timothy R. Augsburger and Janel C. Augsburger Owners ORDER AND NOW, this _ day of , 2004, the Court orders that the Petitioner is not liable for any attorney fees as being claimed under 53 P.S. ~ 7106. By the court, J CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certify that I have served a true and correct copy of the foregoing document by depositing such in the U.S. Mail, fIrst class, postage prepaid, addressed as follows: James D. Bogar, Esquire Jennifer B. Hipp, Esquire Attorneys at Law One West Main Street Shiremanstown, PA 17011 >,. (L t:=- III r.:::' C)"C' F"= (> -) (S UJ -.J w:: ~; Lt_ o 4- ", i 0-. .::1' N :;'~ '''- 0> I CJ l_U C) ~fi c--... I: "/ .,-- = ,) u MONROE TOWNSHIP MUNICIPAL AUTHORITY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Claimant 01-4361 MUNICIPAL LIEN v, TIMOTHY R, AUGSBURGER and JANEL C, AUGSBURGER, Owners MONROE TOWNSHIP MUNICIPAL AUTHORITY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Claimant 04-1236 CIVIL v, TIMOTHY R, AUGSBURGER and JANEL C, AUGSBURGER, Owners NOTICE OF APPEAL AND ORDER FOR TRANSCRIPT Notice is hereby given that the Monroe Township Municipal Authority, Claimant above named, hereby appeals to the Commonwealth Court of Pennsylvania from the Order entered in this' matter on the 9th day of March, 2005, This Order has been entered in the docket as evidenced by the attached copy of the docket entry, A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and .. file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure, Respectfully submitted, MONROE TOWNSHIP MUNICIPAL AUTHORITY Dated: April 8, 2005 BY: \h2t~ Jenni;t):~ "'Jrpp, Esquire One West Main Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court ID No, 86556 B ' James D, One West Main Shiremanstown, (717) 737-8761 Supreme Court ID quire et nsylvania 17011 No, 19475 Solicitors for Monroe Township Municipal Authority CERTIFICATE OF SERVICE We, Jennifer B. Hipp, Esquire, and James D. Bogar, Esquire, hereby certify that on this date we are serving a copy of the Notice of Appeal and Order for Transcript upon the persons and in the manners indicated below, which service satisfies the requirements of the Pennsylvania Rule of Appellate Procedure, as follows: Via first-class mail postage prepaid to: Don Bailey, Esquire 4311 N. 6th Street Harrisburg, PA 17110 Sheri D. Coover, Esquire 4311 N, 6th Street Harrisburg, PA 17110 Via hand delivery to: The Honorable Kevin A, Hess Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Taryn N. Dixon, District Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Court Reporters Office Attn: Barbara Graham Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 BY: Jennife Esquire One West Main Street Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court 1D No, 86556 BY; James ire One West Main Str Shiremanstown, Pennsylvania 17011 (717) 737-8761 Supreme Court 1D No, 19475 Solicitors for Monroe Township Municipal Authority 10205604062005 PYS510.. Cumberland County Prothonotary's Office Civil Case Print Page 1 2004-01236 MONROE TOWNSHIP MUNICIPAL (VS) AUGSBURGER TIMOTHY R ET AL Reference No, ,: 01-4361 Case Type"",: WRIT OF SCIRE FACIAS Judgment"",' 3000,00 Judge Assigned: Disposed Desc, : ------------ Case Comments ------------- Filed, . , , , , , , : Time"""", : Execution Date Jury Trial, , , , Disposed Date, Higher Crt 1,: Higher Crt 2,: 3/24/2004 8:35 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info MONROE TOWNSHIP MUNICIPAL AUTHORITY AUGSBURGER TIMOTHY R 1288 BOILING SPRINGS RD BOILING SPRINGS PA 17007 AUGSBURGER JANEL C 1288 BOILING SPRINGS RD BOILING SPRINGS PA 17007 PLAINTIFF BOGAR JAMES D HIPP JENNIFER B BAILEY DON COOVER SHERI D DEFENDANT DEFENDANT BAILEY DON COOVER SHERI D Amount Date 3/24/2004 3/24/2004 5/19/2004 5/19/2004 Desc Judgment Index AUGSBURGER TIMOTHY R AUGSBURGER JANEL C AUGSBURGER TIMOTHY R AUGSBURGER JANEL C 3,000,00 3,000,00 3,000,00 3,000,00 WRIT OF SCIRE FACIAS WRIT OF SCIRE FACIAS FAILURE TO ANSWER FAILURE TO ANSWER ******************************************************************************** * Date Entries * ******************************************************************************** 3/24/2004 3/31/2004 5/19/2004 5/26/2004 6/22/2004 7/08/2004 8/03/2004 8/05/2004 - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - PRAECIPE OF SCIRE FACIAS SUR MUNICIPAL LIEN# 01-4361 MLD COSTS BROUGHT FORWARD $39,00 PD ATTY $1,00 CO DUE $5,00 SAT FEE DUE ------------------------------------------------------------------- SHERIFF'S FILE RETURNED FILED, Case Type: WRIT OF SCIRE FACIAS Ret Type,: Regular Litigant,: AUGSBURGER TIMOTHY R Address, ,: 1288 BOILING SPRINGS ROAD Cty/St/Zp: BOILING SPRINGS, PA 17007 Hna To: TIMOTHY R AUGSBURGER Shf/Dpty,: ROBERT BITNER Date/Time: 03/30/2004 1700:00 Costs",,: $32,83 Pd By: JAMES D BOGAR 03/30/2004 ------------------------------------------------------------------- PRAECIPE FOR DEFAULT JUDGMENT AND DEFAULT JUDGMENT ENTERED IN THE AMOUNT OF $3000,00 PLUS INTEREST IN THE AMOUNT OF $940,80 PLUS INTEREST FROM APRIL 17, 2004 IN THE AMOUNT OF TEN PERCENT PLUS ATTORNEY'S FEES IN THE AMOUNT OF $5,106,20 PLUS COSTS NO NOTICE MAILED ------------------------------------------------------------------- ENTRY OF APPEARANCE FOR DEFT BY DON BAILEY ESQ ------------------------------------------------------------------- RETURN OF RULE TO SHOW CAUSE IN RE MOTION TO STRIKE/OPEN JUDGEMENT CLAIMANT ------------------------------------------------------------------- ORDER IN RE MOTION TO STRIKE/OPEN JUDGMENT 7/08/04 CONISDERATION OF THE WITHIN MOTION AND ANSWER ARGUMENT SHALL BE HELD ON THURSDAY 9/30/04 AT 9:00 AM IN COURTROOM NO 4 CUMBERLAND COUNTY COURTHOUSE KEVIN A HESS JUDGE ------------------------------------------------------------------- ORDER - DATED 8/3/04 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - ARGUMENT ON THE ABOVE MATTER SET FOR 9/30/04 IS CONTINUED TO 10/6/04 AT 2:00 PM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 7/30/04 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - ARGfuUM/ENT ON ABOVE CAPTIONED MATTER SET FOR 9/30/04 IS CONTINUED TO 10 6 04 AT 2:00 PM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARISLE PA - Y THE COURT KEVIN A HESS J COPIES MAILED 10205604062005 PYS510 ' Cumberland Coun~y Prothonotary's Office Civil Case Print (vs) AUGSBURGER TIMOTHY R ET AL Page 2 2004-01236 MONROE TOWNSHIP MUNICIPAL Reference No, ,: 01-4361 Case Type"",: WRIT OF SCIRE FACIAS Judgment"",' 3000,00 Judge Assigned: Disposed Desc, : ------------ Case Filed, , , , , , , , : Time, " ."" , : 3/24/2004 8:35 0/00/0000 0/00/0000 3/09/2005 Execution Date Jury Trial, , , , Disposed Date, Higher Crt 1,: Higher Crt 2,: ------------------------------------------------------------------- ORDER - DATED 10/18/04 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - ARGUMENT SET FOR 10/6/04 IS CONTINUED TO 11/29/04 9:30 AM CR 4 - BY KEVIN A HESS J - COPIES MAILED 10/18/04 ------------------------------------------------------------------- MOTION TO RESCHEDULE HEARING BY DON BAILEY ESQ ------------------------------------------------------------------- ENTRY OF APPEARANCE AS CO-COUNSEL FOR THE DEFENDANTS BY SHERI D COOVER ESQ ------------------------------------------------------------------- MOTION FOR RECONSIDERATION BY SHERI D COOVER ESQ ------------------------------------------------------------------- ORDER 12/16/04 THE POSIITION OF THE OWNERS WILL AGAIN BE CONSIDERED AT OUR HEARING ON 2/23/05 AND PRIOR TO THE ENTRY OF ANY FINAL ORDER KEVIN A HESS JUDGE COPIES MAILED 12/17/04 ------------------------------------------------------------------- ORDER - DATED 3/9/05 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - GRANTED IN PART AND THAT PORTION OF THE JUDGMENT FOR ATTYS FEES IN THE AMOUNT OF $5,6106,20 IS STRICKEN - THE MOTION TO STRIKE/OPEN JUDGMENT WITH RESPECT TO INTEREST IS DENIED - BY THE COURT KEVIN A HESS J COPIES MAILED 3/9/05 - - - - - - - - - - - - - - LAST ENTRY Comments ------------- 10/18/2004 11/04/2004 11/23/2004 12/10/2004 12/17/2004 ******************************************************************************** * Escrow Information * * Fees & Debits Bea Bal Pvmts/Adl End Bal * *****************************************~************************************** WRIT OF SCI FA AUTOMATION FEE JDMT/DEFAULT 15,00 5,00 9,00 15,00 5,00 9,00 ,00 ,00 ,00 ------------ ,00 29,00 29,00 ******************************************************************************** * End of Case Information * ******************************************************************************** 10213204062005 Cumberland Countv Prothonotary's Office PY?510. Civil Case Print 2001-04361 MONROE TOWNSHIP (vs) AUGSBURGER TIMOTHY R ET AL Reference No, ,: 04-1236 Filed, , , '" , , : Case Type"",: MUNICIPAL LIEN Time."", ",: Judgment""" 3000,00 Execution Date Judge Assigned: HESS KEVIN A Jury Trial"" Disposed Desc,: Disposed Date, -----.------ Case Comments ------------- Higher Crt 1,: Higher Crt 2,: Page 1 7/19/2001 12:06 0/00/0000 0/00/0000 1589 CD 2002 ******************************************************************************** General Index Attorney Info MONROE TOWNSHIP 1220 BOILING SPRINGS ROAD MECHANICSBURG PA 17055 AUGSBURGER TIMOTHY R 1288 BOILING SPRINGS ROAD BOILING SPRINGS PA 17007 AUGSBURGER JANEL C 1288 BOILING SRPINGS ROAD BOILING SPRINGS PA 17007 PLAINTIFF BOGAR JAMES D HIPP JENNIFER B DEFENDANT BAILEY DON DEFENDANT Amount Date Desc Judgment Index AUGSBURGER TIMOTHY R AUGSBURGER JANEL C 3,000,00 3,000,00 7/19/2001 MUNICIPAL LIEN 7/19/2001 MUNICIPAL LIEN ******************************************************************************** * Date Entries * ******************************************************************************** 7/19/2001 7/30/2001 7/30/2001 8/03/2001 8/24/2001 9/13/2001 9/20/2001 9/24/2001 10/11/2001 11/21/2001 3/21/2002 6/05/2002 FIRST ENTRY MUNICIPAL LIEN ------------------------------------------------------------------- CERTIFICATE OF SERVICE - BY TIMOTHY R AUGSBURGER PETITION - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- ORDER - DATED 8/3/00 - THE HEARING ON THE OWNER'S PETITION TO STRIKE LIEN SET FOR 8/23/01 AT 11:00 AM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 8/3/01 ------------------------------------------------------------------- ORDER OF COURT - DATED 8/23/01 - THIS MATTER IS CONTNUED FORA PERIOD OF 30 DAYS TO AFFORD THE PARTIES THE OPPORTUNITY TO HAVE QUESTIONED DISTANCES IN THIS MATTER MEASURED BY A SURVEYOR OR A CERTIFIED ENGINEER THEREAFTER EITHER PARTY MAY REQUEST A FURTHER HEARING IN THE MATTER BY LETTER TO THE COURT IT IS FURTHER DIRECTED THAT SHOULD THIS MATTER BE SETTLED THE COURT BE NOTIFIED IMMEDIATELY - BY THE COURT KEVIN A HESS J COPIES MAILED 8/24/01 ------------------------------------------------------------------- PETITION - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- RESPONSE OF MONROE TOWNSHIP TO PETITION OF TIMOTHY R AUGSBURGER AND JANEL C AUGSBURGER - BY JAMES D BOGAR ESQ FOR MONROE TOWNSHIP ------------------------------------------------------------------- ORDER - DATED 9/24/01 - FURTHER HEARING IN THE ABOVE CAPTIONED MATTER IS SET FOR 12/6/01 AT 9:30 AM IN CR 4 OF THE CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 9/25/01 ------------------------------------------------------------------- ANSWERS TO MONROE TOWNSHIPS RESPONSE - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- TRANSCRIPT FILED ------------------------------------------------------------------- TRANSCRIPT FILED - BY THE COURT KEVIN A HESS J ------------------------------------------------------------------- ORDER - DATED 6/5/02 - IN RE PETITION TO STRIKE MUNICIPAL LIEN - THE COURT FINDING THAT THE CLAIMANT MONROE TOWNSHIP HAS ESTABLISHED THAT THE DEFENDANTS ARE OWNERS OF AN IMPROVED PROPERTY WHOSE PRINCIPAL BUILDING IS WITHIN 200 FEET OF THE SEWER SYSTEM AT ISSUE IN THIS CASE THE PETITION OF SAID OWNERS TO STRIKE THE 10213204062005 Cumberland County Prothonotary's Office PY?510~ Civil Case Print 2001-04361 MONROE TOWNSHIP (vs) AUGSBURGER TIMOTHY R ET AL Reference No,,: 04-1236 Filed"", ",: Case Type"",: MUNICIPAL LIEN Time.""",,: Judgment"",' 3000,00 Execution Date Judge Assigned: HESS KEVIN A Jury Trial,." Disposed Desc,: Disposed Date, ------------ Case Comments ------------- Higher Crt 1,: Higher Crt 2,: MUNICIPAL LIEN OF MONROE TOWNSHIP FOR SEWER CONNECTION IS DENIED - BY KEVIN A HESS J - COPIES MAILED 6/5/02 ------------------------------------------------------------------- 7/02/2002 NOTICE OF APPEAL TO COMMONWEALTH COURT OF PENNSYLVANIA - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- 7/09/2002 ORDER - DATED 7/8/02 - OWNERS HAVING FILED A NOTICE OF APPEAL THEY ARE DIRECTED TO FILE OF RECORD WITHIN 14 DAYS HEREOF AND SERVE UPON THE UNDERSIGNED A CONCISE STATEMENT OF THE MATERS COMLAINED OF ON THE APPEAL - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETING # 1589 CD 2002 ------------------------------------------------------------------- STATEMENT OF OWNERS APPEAL - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- IN RE OPINION PURSUANT TO RULE 1925 - BY KEVIN A HESS J - ------------------------------------------------------------------- ORDER AND OPINION NOT REPORTED - DATED 6/3/03 FROM COMMOMWEALTH COURT OF PA - AND NOW THIS 3RD DAY OF JUNE 2003 - THE ORDER OF THE COURT OF COMMON PLEAS OF CUMBERLAND CO IN THE ABOVE-CAPIONED MATTER IS HEREBY AFFIRMED - BONNIE BRIGANCE LEADBETTER JUDGE ------------------------------------------------------------------- 12/09/2003 ORDER FROM SUPREME COURT OF PA MIDDLE DISTRICT - DATED 11-14-03 - THE PETITION FOR ALLOWANCE OF APPEAL IS HEREBY "DENIED" - SHIRLEY PHIPPS APELLATE CLERK ------------------------------------------------------------------- 12/22/2003 ENTRY OF APPEARANCE FOR PLFF - BY JAMES D BOGAR ESQ AND JENNIFER B HIPP ESQ ------------------------------------------------------------------- 12/22/2003 VOLNTARY SUBSTITUTION OF MONROE TOWNSHIP MUNICIPAL AUTHORITY AS A PARTY CLAIMANT - BY JAMES D BOGAR ESQ AND JENNIFER B HIPP ESQ ------------------------------------------------------------------- 1/12/2004 OBJECTION TO THE VOLUNTARY SUBSTITUTION OF MONROE TOWNSHIP MUNICIPAL AUTHORITY AS A PARTY CLAIMANT BY TIMOTHY R AUGSBURGER DEFT 7/11/2002 7/22/2002 8/07/2002 6/04/2003 1/21/2004 1/21/2004 1/23/2004 1/28/2004 2/12/2004 2/17/2004 3/11/2004 Page 2 7/19/2001 12:06 0/00/0000 0/00/0000 1589 CD 2002 MONROE TOWNSHIP MUNICIPAL AUTHORITY'S RESPONSE TO TIMOTHY R AUGSBURGER AND JANEL C AUGSBURGER'S OBJECTION TO THE VOLUNTARY SUBSTITUTION OF MONROE TOWNSHIP MUNICIPAL AUTHORITY AS A PARTY CLAIMIANT - BY JAMES D BOGAR ESQ AND JENNIFER.B HIPP ESQ ------------------------------------------------------------------- OBJECTION TO THE MUNICIPAL LIEN FOR SERVICES AND SEWER RATES - BY TIMOTHY R AUGSBURGER ESQ ------------------------------------------------------------------- ORDER - DATED 1/22/04 - IN RE OBJECTION TO VOLUNTARY SUBSTITUTION OF MONROE TOWNSHIP MUNICIPAL AUTHORITY AS A PARTY CLAIMANT - A RULE IS ISSUED UPON MONROE TOWNSHIP AND MONROE TWP MUNICIPAL AUTHORITY TO SHOW CAUSE WHY THE RELIEF REQUESTED IN THE WITHIN MOTION/OBJECTION OUGHT NOT BE GRANTED - THIS RULE RETURNABLE 20 DAY AFTER SERVICE - BY THE COURT KEVIN A HESS J COPIES MAILED 1/22/04 ------------------------------------------------------------------- ORDER - DATED 1/27/04 - IN RE OBJECTION TO MUNICIPAL LIEN FOR SERVICES AND SEWER . A BRIEF HEARING ON THE WITHIN OBJECTIONS TO MUNICIPL LIEN IS SET FOR 2/13/04 AT 1:30 PM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED 1/28/04 ------------------------------------------------------------------- RETURN OF RULE TO SHOW CAUSE IN RE OBJECTION TO VOLUNTARY SUBSTITUTION OF MONORE TOWNSHIP AND MONROE TOWNSHIP MUNICIPAL AUTHORIY AS A PARTY CLAIMANT - BY JAMES D BOGAR ESQ AND JENNIFER B HIPP ESQ FOR PLFF ------------------------------------------------------------------- REQUEST FOR THE RELEASE OF TRANSCRIPTS - BY TIMOTHY R AUGSBURGER ------------------------------------------------------------------- ORDER - DATED 3/11/04 - IN RE OBJECTION TO MUNICIPAL LIEN FOR SERVICES AND SEWER REATED - THE OBJECTIONS OF THE OWNERS TO THE 10213204062005 PYS510 . , Cumberland Coun~y Prothonotary's Office Clvll Case Prlnt Page 3 2001-04361 MONROE TOWNSHIP (vs) AUGSBURGER TIMOTHY Reference No, ,: 04-1236 Case Type"",: MUNICIPAL LIEN Judgment"",' 3000,00 Judge Assigned: HESS KEVIN A Dlsposed Desc, : ------------ Case Comments ------------- 3/11/2004 R ET AL Filed".".,,: 7/19/2001 Time""",.,: 12:06 Execution Date 0/00/0000 Jury Trial, , , , Disposed Date, 0/00/0000 Higher Crt 1,: 1589 CD 2002 Hiqher Crt 2,: MUNICIPAL LIEN FOR SERVICE AND SEWER RATES ERRONEOSLY FILED 01-4361 WHICH OBJECTION SHOULD HAVE BEEN FILED TO 04-184 ARE DISMISSED - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 3/11/04 - IT APPEARING THAT THE SUBSTITUTION OF MONROE TOWNSHIP MUNICIPAL AUTHORITY AS A PARTY CLAIMANT WAS FILED IN STRICT CONFORMITY WITH THE PA RULE OF CIVIL PROCEDURE REGARDING SBSTITUTION AND THAT THE MONO ROE TWP MUNICIPAL AUTHORITY IS IN ALL RESPECTS THE PROPER PARTY CLAIMANT THE OBJECTION OF THE OWNERS TO THE VOLUNTARY SUBSTITION OF MONROE TWP MUNICIPAL AUTHORITY AS PARTY CLAIMANT IS DISMISSED - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- OPINION AND ORDER - DATE 3/11/04 - IN RE OBJECTION TO MUNICIPAL LIEN SERVICE AND SEWER RATES - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- WRIT OF SCIRE FACIAS ENTERED TO NO, 04-1236 CIVIL TERM ------------------------------------------------------------------- ORDER - DATED 6/2/04 -IN RE MOTION TO STRIKE/OPEN JUDGMENT - A RULE IS ISSUED ON THE CLAIMANT TO SHOW CAUSE WHYTHE RELIEF REQUESTED IN THE WITHIN MOTION TO STRIKE/OPEN OUGHT NOT BE GRANTED THIS RULE RETURNABLE 20 DAYS AFTER SERVICE - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 8/3/04 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - ARGUMENT ON THE ABOVE CAPTIONED MATTER SET FOR 9/30/04 IS CONTINUED TO 10/6/04 AT 2:00 PM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARILSE PA - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 7/30/04 - IN RE MOTION TO STRIKE OPEN JUDGMENT - ARGUMENT ON THE ABOVE MATTER SET FOR 9/30/04 IS CONTINUED TO 10/6/04 AT 2:00 PM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 10/18/04 - IN RE MOTION TO STRIKE/OPEN JUDGMENT - ARGUMENT ON THE MATTER SET FOR 10/6/04 IS CONTINUED TO 11/29/04 AT 9;30 AM IN CR 4 CUMBERLAND COUNTY COURTHOUSE CARLISLE PA - BY THE COURT KEVIN A HESS J COPIES MAILED ------------------------------------------------------------------- ORDER - DATED 11/30/04 . SEE ATTACHED ORDER - HEARING IS SET FOR WEDNESDAY 2/23/05 @ 2:30 P M IN COURTROOM NO 4 - BY THE COURT - KEVIN A HESS J ------------------------------------------------------------------- ORDER - DATED 3/9/05 - IN RE MOTION TO STRIKE/OPEN JUDGMENT _ GRANTED - IN PART AND THAT PORTION OF THE JUDGMENT FOR ATTYS FEES IN THE AMOUNTY OF $5,106,20 IS STRICKEN - THE MOTION TO STRIKE/OPEN THE JUDGMENT WITH RESPECT TO INTEREST IS DENIED - BY THE COURT KEVIN A HESS J COPIES MAILED 3/9/05 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - 3/11/2004 3/24/2004 6/02/2004 8/03/2004 8/05/2004 10/18/2004 11/30/2004 3/09/2005 ******************************************************************************** * Escrow Information * * Fees & Debits Beq Bal Pvmts/Adl End Bal * ******************************************************************************** APPEAL 9,00 9,00 ,00 30,00 30,00 .00 ------------------------ ------------ 39,00 39,00 ,00 ******************************************************************************** * End of Case Information * ******************************************************************************** ~ ~t ~ ('\ 'ttI.~, ~~ -t. ~ ~ '. "\ \ ~ "" ~, a (, \ t --- t' r' ..... ., "'\ ~ ::i:::. i C) ~-~ ~ 5; --\ ~ ~f} :.;\1 :0Q I :~), t':-} CC' "II :~: '~l~. \.S' ~':1 -.- ~ <. <..) . . MONROE TOWNSHIP MUNICIPAL: AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYINANIA 01-4361 MUNICIPAL LIEN v, TIMOTHY R, AUGSBURGER and JANEL C, AUGSBURGER, Owners MONROE TOWNSHIP MUNICIPAL: AUTHORITY, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 04-1236 CIVIL TERM .I V, TIMOTHY R, AUGSBURGER and JANEL C, AUGSBURGER, Owners IN RE: TRANSCRIPT OF PROCEEDINGS Proceedings held before the HONORABLE KEVIN A, HESS, J" Cumberland County Courthouse, Carlisle, Pennsylvania, on Wednesday, February 23, 2005, in Courtroom Number 4, APPEARANCES: SHERI D. COOVER, Esquire For the Augsburgers JENNIFER B, HIPP, Esquire JAMES D. BOGAR, Esquire For Monroe Township \{INti {'~\It ,::;'~;',I'3d }J.NfC(: ~-; ~"-:::.~!>"H18 Z \ : I ~ld 92 lieN ~~~2 ,:",thiC}l\i:.J'I.\lOUd 3.Hl ~o """'0 n"1'1\:I :1.....i\j:'" ,"-\:'1 \~ . . INDEX OF WITNESSES FOR THE TOWNSHIP DIRECT CROSS REDIRECT - James D. Bogar, Esq, 4 14 24 Hubert X, Gilroy, Esq. 25 33 FOR THE AUGSBURGERS Timothy R. Augsburger 35 42 44 2 . . INDEX OF EXHIBITS FOR THE TOWNSHIP Ex, No, 1 - Ordinance of Monroe Township Ex, No, 2 - Resolution 2005 MTMA Ex, No, 3 - Lien Enforcement Procedure Ex, No, 4 - Delinquent Sewer Account Lien Ex, No, 5 - Lien Fee Policy Ex, No, 6 - Time Expended on Augsburger Matter Ex. No, 7 - Billing Statement Ex, No. B - Compendium of portions of bills Ex, No, 9 - letters Ex, No, 10 - lien 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . MS, COOVER: Good afternoon, Your Honor, MS, HIPP: Good afternoon, Your Honor, THE COURT: Good afternoon, Go ahead, This is on the claim for counsel fees, I have got your memo, and I think I know what the issues are, MS, HIPP: Thank you, Your Honor, We would like to call our first witness, James 0, Bogar, please, Whereupon, JAMES 0, BOGAR, ESQUIRE, having been duly sworn, testified as follows: DIRECT EXAMINATION BY MS, HIPP: Q Can you state your name, please, spelling it for the record? A James D, Bogar, B-o-g-a-r, Q And are you the solicitor for the Monroe Township Municipal Authority? A I am, Q And do you also represent Monroe Township? A I do, Q And how long have you been employed by both the Authority and the Township respectively? A Monroe Township approximately twenty-five years, and the Authority since 1995, Q And are you authorized to appear on behalf of the Authority today? 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A I am, Q And also on behalf of the Township? A That's correct. Q Are you familiar with the connection fee lien filed against Timothy R, and Janel C. Augsburger and their real property? A Q A Q I am, How are you familiar with that matter? I filed the lien on behalf of the Authority, Thank you. And have you represented tte Authority in this matter and in response to challenges and appeals filed by the Augsburgers? A I have, Q What was the issue presented in the Augsburgers' challenge to the connection fee lien? A The distance involved, Q And how was that matter resolved? A After several -- through several court hearings, and we retained the services of the engineer of the Authority to actually make the measurements, Q And after the distance issue was resolved, were there any other legal issues involved in this case? A In my way of thinking, no, Q Is the matter of the connection fee lien, or, should I say, the legal validity of the connection fee lien, 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . has that been finalized? A Yes, it has, Q And is it your understanding that then, are no more court appeals available as to the validity of that lien? A That's correct, Q Is it your understanding that ~he issue of today's case is related to the assessment of and rate of attorney fees assessed in connection with that lien? A That's correct, Q In your opinion, was it necessary to defend against the Augsburgers.' appeals and objections in order to protect the legal validity of the connection fee? A Yes, Q Were there certain actions in respondi~g to those appeals that were required to be taken in order to protect the lien? A Correct, Q Can you please describe what some of those actions would have been? A Well, for instance, whenever various appeals were taken, we clearly had to answer and make representations on behalf of the Authority, And that was through the Commonwealth Court and on up, Q Would failing to take those steps have 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . potentially resulted in a default-type decision in favor of the Augsburgers? A It would have, in my way of thinking, Q And would you consider the steps you took in defending against those matters required in order to pursue the collection of the Augsburgers' delinquent sewer account? A Yes, Q In your opinion, were the Augsburgers' appeals and objections, were they filed on any rational legal basis MS, COOVER: Objection, Your Honor, THE COURT: Well, if he said yes, I would falloff my chair, We all know he says no, Whether they were or not is up to me, We can all be agreed on that, That is his opinion, That's why we are here today, THE WITNESS: In my opinion they weren't, And I believe my opinion was affirmed by the various courts that ruled on this matter, BY MS. HIPP: Q And in your opinion, were those appeals and objections, were they filed to harass the Authority and/or delay the Augsburgers' responsibility to pay the connection fee charges? MS, COOVER: Objection again, YOLr Honor, First of all, it is argumentative, Secondly, a very :eading 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . question, Thirdly, very prejudicial to my cliene, THE COURT: And also highly speculative, MS, HIPP: We are happy to forego that question, BY MS. HIPP: Q What was the hourly rate that you charged to the Authority, and, for all your municipal clients for that matter, during the 2001 through 2004 calendar years? A Our hourly rate for municipal representation for Monroe Township Authority, Monroe Township, and our other municipal clients was $95,00 per hour, Q And what is your rate for the 2005 calendar year? A $100,00 per hour, Q Would you please identify the document that's been marked as Authority Exhibit No, I? A I need to put my glasses on, I guess that's an indication of how long I have been around, Exhibit No, 1 is an ordinance of Monroe Township, It is Ordinance No, 2007, And it has a substantial title, a~ least in length, but it is basically the connection or tapping fee ordinance that, among other things, refers to the distance, 200 feet, and the circumstances under which the connection has to be made and those types of things, Q Can you please read Section 4,06 of the 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . ordinance? A 4.06 states that the township reserves the right to adopt from time to time additional rules and regulations as it shall deem necessary and proper relating to connections with a sewer and with the sewer syste~, which additional rules and regulations, to the extent appropriate, shall be construed a part of this ordinance, Q Thank you, And can you please identify for the Court what's been marked as Authority Exhibit No, 2? A That's Resolution 2005, It is a resolution of Monroe Township Municipal Authority, And it basically, again, it has a pretty long title, but it imposes a tapping fee, and also talks about costs and expenses involved in following up with failure to connect, Q And if I could please direct your attention to Sections 7 and 8, If you could please read those sections? A Section 7, and they are both short, Payment of tapping fees imposed by this Authority, pursuant to this Resolution, shall be enforced by this Authority in any manner appropriate under the laws at the time in effect, Section 8, This Authority may, from time to time, adopt modifications of, supplements to, or amendments of this Resolution, Q If you could please identify the document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . that's been marked as Authority Exhibit No, 3? A Yes, This is a copy of the Lien Enforcement Procedure that was adopted by the Authority on February che 18th, 2004. Q And can you in general just summarize what this procedure sets forth? A Basically, in an attempt to make certain that the Authority treated everybody fairly and equally, we, from time to time, adopted and reaffirmed procedures with respect to, in this case, proceeding to sheriff's sale after a lien was filed, Q Can you please identify the document that's been marked as Authority Exhibit No, 4? A Okay, It is a document entitled Delinquent Sewer Account Lien Enforcement Procedure, adopted April 17, 2002, Q And, again, can you please summarize this document? A And, again, in an effort to make certain that we were treating everybody fairly, we outlined procedures for moving forward, if you will, whenever an account became delinquent, including time limits and dollar amounts and notice provisions and things of that nature, Q And can you please identify what's been marked as Authority Exhibit No,S? 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A This is a document called Lien Fee Policy, And it was adopted by the Board December 19, 2003, And this document basically states that whenever moneys are received how they are to be applied, i,e., in what order, Q And is your rate -- or the fee arrangement, I should say, that you have with the Authority, is that memorialized -- how is that memorialized? A Our fees for me and our firm for the Monroe Authority and Monroe Township, as well as all of the other municipal clients, are confirmed by the cliencs, the municipalities in this case, whenever they hold their reorganization meetings at the beginning of the year, In other words, we are retained, and our hourly rates are acknowledged of record, Q And do you issue written -- do you advise in writing what your fee will be on an annual basis? A Yes. Q Could you please identify the document that's been marked as Authority Exhibit No, 6? A Yes, It is a document that summarizes the time that was expended with respect to matters involving the Augsburgers, from 2001 through and including the present, Q And can you please identify the document that's been marked as Authority Exhibit No, 7? A Yes, These are copies of all of our billing 11 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . 1 statements or copies of billing statements that pertaln 2 to matters of services that we rendered to the Authority 3 with respect to the Augsburgers, And there are 4 comprehensive billing statements, which include in part a 5 breakdown as to services that we rendered on the Augsburger 6 matter, Q And how would one be able to identify what matters were pertaining to the Augsburgers? A You would have to read through the bill, We are instructed by most of our municipal clients, and, in particular, the Authority, to provide certain breakdowns. The Augsburger property was located in the southern sewer district, so you would need to, in looking through the bills, look under the heading, and it is in bold, Southern Sewer District, And services that we rendered with respect to the Augsburgers would be set forth under that heading, Q Thank you, Can you please identify the document that's been marked as Authority Exhibit No, 8? A Yes, This is a compendium, if you wiLL, of portions of our bills for the year 2001 with respect to services rendered to the Authority with respect to Augsburger matters, Q If I could direct your attention to the first page of Exhibit 8, in the upper left-hand corner, does this pertain to the Authority or the Township? 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Oh, excuse me, this is Monroe Township, At that point in time the Authority was not an operating authority, so I stand corrected, Q And, again, how would one be able to identify which time entries were with regards to the Augsburger matter? A Again, in the same fashion, We were instructed at that time by our client to have a heading Southern Sewer District, And the Augsburger property is located within the southern sewer district, That's how we did that, Q Can you please identify the documents that are marked as Authority Exhibit No, 9? A Yes, This is a listing of one, two, three -- eight letters and communications received from municipalities with authorities in the Cumberland County area, particularly what we would consider central Cumberland County or Cumberland County West Shore, indicating fees, These are matters of public record. Fees that their solicitors charged them for services rendered, Q And are the fees that your law firm charges to the Monroe Township Municipal Authority consistent and in the same range, so to speak, as those charged by other municipalities? A They are, I would think we appear to be an 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . attractive bargain, MS, HIPP: Thank you, I have no further questions. CROSS-EXAMINATION BY MS, COOVER: Q Good afternoon, Mr, Bogar, You and I have previously been introduced, But, again, my name is Sheri Coover, And I am representing the Augsburgers today, A Thank you, Q And I have to admit, this is the first time that I am seeing these documents, They have never been produced to our office previous to this, so -- MS, HIPP: Objection, We understood this was an opportunity for cross-examination of Mr, Bogar, not an argument session on behalf of defendant's attorney, THE COURT: And we will argue about that another hour, You did not see the documents before? MS, COOVER: No, I didn't, THE COURT: That's an inappropriate observation, In other words, she is goi~g to be operating under something of a disability as she proceeds to cross-examine your witness, and that's a fair observation, Overruled. MS, COOVER: In fairness to Ms, Hipp, I did have an opportunity to see Exhibits 1 and 2 previous to 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . this, but not the others, THE COURT: Very well, BY MS, COOVER: Q Mr, Bogar, some questions that I do have for First of all, I am going to go through these exhibits, you, Exhibit No, 3, it says a Lien Enforcement Procedure, A Let me catch up to you here, Yes, Q And I don't want to be repetitive, but who was this adopted by? A The Authority, Q The Municipal Authority? A Yes. Q And does it state anywhere in there about attorney fees, only on this Lien Enforcement Procedure? A It does not, Q Do you know if the Augsburgers had any opportunity to review this Lien Enforcement Procedure? A They certainly did, Q And who gave them that opportunity? A They would have -- I mean, they did appear at meetings, They did appear at the Authority and the Township, They could have asked to take a look at this at anytime, Q But did you personally make them aware of this? 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A I did not, I will correct myself, I believe at a prior hearing we did make Mr, Don Bailey aware of these documents and these procedures in discussions that we have had with him, Q I have his file, and I did go thoroughly through it. I am making the representation that they are not in his file, but I cannot speak for him obviously, because he is not here, A We are not saying that they are in his file, He didn't We are saying that we made him aware of those, request them perhaps, Q All right, And on to Exhibit No, 4, A Sure, Q I am looking at paragraph number two in Exhibit No, 4. Do you know if an intention to file attorney fees was ever sent by certified mail to the Augsburgers? A I believe in a prior proceeding that we had, maybe back in 2001, they were given letters, and that should be a part of the record, indicating what they are liable for and what they were responsible for, Q But do you know if the letters specifically stated anything -- I am not contending -- I have reviewed some letters, And I am not sure if they were sent by certified mail, perhaps they were, I read somewhere ~t would list the amount of the lien and attorney fees, Do you 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . know if specifically any itemized amount of attorney fees was listed to them? A It is my recollection, I mean, that part of the proceedings was awhile ago, but it is my recollection that they were advised that attorney fees would be due and owing, Q I am sorry, Maybe I am not clear, I am asking, were they advised of a specific amount prior to coming to your office? They came to your office to make a payment, amount? Prior to then, were they advised of a specific A They never -- to the best of my knowledge, they have never been to my office, the Authority office perhaps. Q The Authority office. Prior to that, do you know if they were ever advised? A I didn't specifically advise them of that, Whether the Authority did or not, I can't speak to that, Q And on to Exhibit No, 5, sir, It says again adoption by Board, Is this the Municipal Authority Board? A That's correct, Q And what does this lien policy pertain to? What I am getting at I will explain, It does not only pertain to liens placed due to the imposition of the sewer, is that correct? 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A I am not quite sure I understand your question, Perhaps you can rephrase it, Q I will be glad to, The lien that was Sure, placed on the Augsburgers' property was placed on it because they objected to having a sewer line on the property, This lien fee policy, does this apply to all liens and not only to ones that are A We will have to go back a little bit, I am not quite sure why they -- I mean, the property was liened, their property, along with other properties, for failure to connect to the system, So, I am sorry, the rest of your question again, please, Q Liens are placed on properties for other reasons, is that correct? A Correct, Q All I am asking is does this lien fee policy apply to liens placed on properties for other reasons? A As it says, it refers in here in the last sentence, user fees and/or connection fees, So the answer is, yes, it applies to all liens, Q To all liens, Okay, And I am going to go on to No.6, It does list your attorney fees, It lists your attorney fees by hour, is that correct? A Bear with me here, I am sorry, Q Sure, 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A No, 6? Q Yes, These are your specific attorney's fees? A Well, what this represents, as I indicated earlier, is a total of hours that were spent, for instance, in the year 2001, as referenced in all the billing statements that were introduced as other exhibits, This is a summary of those hours, Q Were there other attorneys in your off~ce that were working on this case also? A Not in 2001. Q Okay, In any of these years? A Yes, Q And are their hours represented cn this? A Yes, Q And were the Augsburgers at any time made aware of these specific attorney fees? A You mean the number of hours or the", Q Well, the amounts? A It is my understanding that they were made aware that attorney fees were accruing by personnel in the Authority office, Q And how do you believe that personnel in the Authority office was conveying this to them? A Whenever they would come in or call on the 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . phone and ask about the amount of the bill or what it would take to satisfy it, Q And would they specifically state at that time how much the attorney fees are? I understand you were not present, but you are saying that's your understanding. Is that what you,.. A That's my understanding, because that's generally what they did with anybody that came in and wanted to know the amount of their account, or what it would take to have a lien satisfied -- satisfaction fees, attorney's fees, interest, those things, Q So you are saying that's their common business practice? Is that what you are telling me? A That's correct, Q But have you ever, specifically you, ever witnessed that business practice done by them? A I-- Q Have you ever been in their office and witnessed them explaining attorney's fees specifically? A No, Q At anytime A I can follow-up, I mean, we, on occasion, we have been asked to contact attorneys for people to explain those -- the outstanding fees, and we did it in the manner in which I just outlined and testified to, 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q At anytime though did you personally prepare an itemized bill, other than this one that's right here, did you personally prepare an itemized bill that was presented to the Augsburgers, of their attorney's fees? A We did not, We were never asked by the Augsburgers nor by Mr. Bailey to do that, Q Do you typically not produce an icemized bill until you are asked by the client to produce one? A We typically don't provide an itemized bill until we are requested to by either the individual against whom the lien was filed or their attorney or representative, particularly when it comes to -- Q How can anybody that contests their lien then argue against it, if no itemized bill -- how can they have notice to enforce their rights? A I guess I don't understand your question, Q If they have no notice, if your office does not give any notice of what the charges you are assessing against them, how can they -- A I mean, it is clear in my mind that the Augsburgers knew that they owed moneys to satisfy this lien, They owed the actual principal amount, They owed interest, the costs to satisfy it, And they owed the attorney's: fees that were accrued by the Township, Q I understand that that was clear in your 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . mind, and I agree with that, But what the real question is is whether it is clear in their mind, Did you specifically make it clear to them, prior to them coming in to pay the bill, that they owed these attorney fees and how much they were? A As I testified to earlier, I was never specifically asked by the Augsburgers to provide a breakdown of whatever fees were necessary to satisfy the lien, nor were we asked by Mr, Bailey, Q And this is my last question, because I am the last two questions, going to follow-up A Sure, Q You never provided an itemized bill, understand you are saying Don Bailey never asked YOL for one, But you never produced one for him, is that correct? A We were never requested to, Q My last question is, your attorney fees, you would -- you characterized them earlier, but I just wanted to make sure, you characterized them as defending against the Augsburgers, the claims that they were bringing, that they shouldn't be -- and not only for enforcement of the delinquency account? A For both, I mean, clearly we had to defend against the appeals that Mr, and Mrs, Augsburger took, but we also had an obligation to move the matter forward, so we 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . were both proactive and defensive, For instance, the praecipe for sheriff's sale and things of that nature, Q But it is true that they are not only for delinquent accounts, is that true? A It is based -- all of the fees we feel were for time expended, to make certain that the Township was -- that the Authority was paid what was due and owing, just like we were instructed to do, for the policy for all other delinquent accounts, Q But these itemized bills do not show a breakdown of what was for enforcement of delinquency accounts and what was for -- what was for defending against the Augsburgers' claims? A If you read them, they do. Q Are you talking about in Exhibit 7 and 8? I am only looking at Exhibit 6, A It would be 8, 7, and I think that's it, Q Okay, A The exhibits that contain the actual itemization, Q And, obviously, like I said, I have never seen these before, so I haven't had an opportunity to review them, So I apologize if they are in there, But have the Augsburgers ever had an opportunity to review these? Were these ever provided to them? 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A A request was never made, Our bills are a matter of public record at the Authority, Anybody can look at them, Q All I am asking you is did you specifically -- did you send them a copy of these? I mean, you are charging them with these, I understand that you keep saying they didn't make a request, Don Bailey didn't make a request THE COURT: Where is your question in there? MS, COOVER: All I want to know is if they specifically sent a copy of what they are charging the Augsburgers with? He said they were itemized billing -- THE COURT: And I understand the quest~on has been no to that several times, THE WITNESS: That's correct, MS, COOVER: Okay, That's all my questions, Thank you, sir. THE WITNESS: You are welcome, THE COURT: Any redirect? MS. HIPP: Yes, REDIRECT EXAMINATION BY MS. HIPP: Q Is your fee, your hourly fee, is that a matter of public record? A Correct. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 . . Q And your billing statements issued to the Authority, are they a matter of public record? A Yes, they are, Q Can anyone request copies of those documents? A Anyone, Q And whenever the municipal lien was fi~ed, and that document is of record in this case, was it noted in the lien that the Augsburgers would be assessed attorney's fees in connection to the lien? A Yes, MS, HIPP: No further questions, THE COURT: Thank you, THE WITNESS: Thank you. MS, HIPP: We would like to call Hubert 15 Gilroy, please, 16 Whereupon, HUBERT GILROY, ESQUIRE, having 17 been duly sworn, testified as follows: 18 DIRECT EXAMINATION 19 BY MS, HIPP: 20 Q Sir, can you please state your name for the 21 record? 22 23 24 25 A Hubert X, Gilroy, My business address 1S 4 North Hanover Street, Carlisle, Pennsylvania, firm of Broujos & Gilroy, P,C, Q Are you an attorney, sir? I am w_th the 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A Yes, I have been licensed to practice law in the Commonwealth of Pennsylvania since 1979, Q And were you retained by the Authority to reach an expert opinion in this case? A Yes, I have been hired by the Monroe Authority to appear here today as an expert witness, Q And what was the expert opinion that you were retained to reach? A You have asked me to review the matter with respect to the attorney's fees charged by the Township in connection with this particular lien and give an oplnlon relative to the reasonableness of the rate charged and the reasonableness of the amount of time expended by the attorneys with respect to proceedings to collect the lien, Q And did you reach an opinion regarding the reasonableness of the Authority's attorney's fees? A Yes, Q Mr, Gilroy, what is your education? A I am a graduate of the University of Scranton and the Dickinson School of Law, now of ~enn State University, I have been practicing in Carlisle since graduation in 1979, Q Thank you, What areas of law do you specialize in, or what are your areas of practice? A I have a variety of areas of practice, with 26 1 2 3 4 5 6 7 8 9 10 . . an emphasis on municipal law, Within Cumberland County I have represented a number of authorities and municipal entities, including Cumberland County Municipal Authority, Letort Regional Authority, Shippensburg Borough Zoning Hearing Board, South Middleton Township Zoning Hearinc[ Board, West pennsboro Township Zoning Hearing Board, the North Middleton Authority, which was the water and seeler authority for North Middleton Township, I have served as special counsel to Middle Paxton Township and to a variety of other municipal entities, I have also appeared before 11 municipal entities representing developer:s or individuals in 12 connection with various matters. 13 14 15 16 17 18 19 20 21 22 23 24 25 Q On behalf of your municipal authority clients, have you ever been engaged in the collection of delinquent accounts in terms of filing liens and defending against challenges to those liens? A Yes, And specifically in my representation of the North Middleton Authority, which is the water and sewer authority for North Middleton Township, I have been engaged in pursuing collection matters for user fees, connection fees, and various assessments or other liens, MS, HIPP: Your Honor, we tender Mr. Hubert X, Gilroy as an expert witness in the field of representation of municipal sewer authorities and the rates that attorneys charge for that representation and that work, 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . THE COURT: I know that he does that kind of work, MS, COOVER: No objection, BY MS, HIPP: Q Mr, Gilroy, in arriving at your expert opinion, what did you do to arrive at that opinion? A I reviewed your records, reviewed the opinion of Judge Hess relative to the initial opinion on the lien, I reviewed the Commonwealth Court opinion, I reviewed some of the briefs filed with the Supreme Court, where the landowners petitioned for review by the Pennsylvania Supreme Court, And I reviewed some of your billing records, I reviewed the rates of compensation charged by your office to the Authority and the Township, and the listing of hours that were worked upon this particular case in connection with pursuing collection of the lien, Q Mr, Gilroy, what is your opinion as to the reasonableness of our attorney's fees? A Well, I examined that from two perspectives, One would be the rate, which, as I understand it, at various times is $95.00 per hour and $100,00 per hour, My opinion with respect to that rate, that it is very reasonable In light of the nature of the work performed, It is a reduction of the standard hourly rate you see most clients billed, For certain municipalities in Central Pennsylvania, 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . they anticipate a reduced hourly rate than what the attorneys normally charge, 95 and $100,00 an hour would reflect a reduction of a standard hourly rate for Central Pennsylvania, which I would suggest is in the neighborhood of 150 to 175, larger firms over $200,00 per hour, So the rate of 95 to $100,00 per hour is certainly consistent with reasonable fees and standard fees charged to municipal entities, and is much lower than legal fees charged to private individuals, The other issue is the overall fees that were charged and the time expended, And, if I may, I think there was an exhibit given in that summary, Q Let me show you all of the exhibits, but I believe you are referring to Exhibit No, 6, A That's correct, I reviewed Exhibit No, 6, And essentially we have a case where the notice of lien was given. And apparently it is in the records that the landowners were advised that attorney's fees would be From the inception, they litigated that matter, My understanding is that there was at least one hearing on the general issue as to wjether the home was accruing. within 200 feet of the sewer line, And that's certainly not rocket science, And once that was figured out, my understanding is that there were various appeals of that to the Commonwealth Court and to the Pennsylvania Supreme 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Court, And, certainly, a total fee over four years of litigation that would involve a Commonwealth Court appeal, would involve litigation at the common pleas level, including hearings, and would involve litigation of defending the appeal to the Pennsylvania Supreme Court, the total fee of $10,424,00 is very reasonable and quite consistent with fees for that scope and breadth of work, and, in fact, would be much lower than you would normally see in a typical non-municipal case of litigating all the way to the Pennsylvania Supreme Court, Q And, Mr, Gilroy, what is your opinion as to whether our attorney's fee rates are comparable and/or customary to those charge by other members of the Bar for similar services? A You might get a few lawyers charging less than 95 to 100 per hour in this county, I would say that would be the very few, I would say the majority would be at that level or higher, So my opinion is that the rates charged are consistent and reasonable for the county and for Central Pennsylvania, Q And, Mr, Gilroy, in part of your review of this matter, did you review the history and time line of events? A Yes, Q And what is your opinion -- if I may rephrase 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . that, if the Authority had not taken the actions it did, would it have risked a default judgment in favor of the Augsburgers? A Absolutely, The Authority was attempting to collect a fee, And although Mr. Bogar suggested it was defending claims, really the action of the Authority 0/as to collect the fee for the assessment of the installation of the sewer. And although, in reviewing the records, I note the fee was $3,000,00, although the attorney's fees are more than that, from a municipal standpoint, especially a water and sewer perspective, authorities must pursue these kind of liens. We have situations where perhaps water bills are not paid and are only a couple hundred dollars, and you have to file the liens, and you have to pursue them if the landowner is going to contest them, And as matter of public policy, no matter what the cost, the municipality has to enforce the liens against the property owners, And I suspect that's why the legislature authorized the imposition of attorney's fees In these unique situations from a municipal standpoint, to encourage landowners to pay fees where appropriate, rather than maintaining meritless litigation, merely to attempt to avoid or delay the payment, Q In your opinion, were the actions taken by the Authority, were they reasonable and necessary? 31 1 2 3 . . A Absolutely. You can't let one landowner just decide not to connect to the water or sewer system to avoid the payment of fee and then expect to collect fees from 4 other property owners, Routinely, these projects are done 5 6 7 8 9 10 11 12 13 14 15 16 with public financing, And it is actually a matter of the financing documents, the bond indenture, and some other representations that the Township or Authority would make to the lending institution, that they have to proceed with and collect these moneys, which, in fact, are used to repay the debt, which are the bonds in those particular situations, So not only do they have a philosophical obligation, but there is legal obligation to pursue these matters, Q And, finally, Mr, Gilroy, if I could ask you to please restate the opinion that you have reached in this matter? A My opinion is that the hourly rate charged in 17 connection with this collection on the fees against the 18 Augsburgers was fair and reasonable and customary under the 19 circumstances for Central Pennsylvania, And that the total 20 fee charged of $10,424,00 over five years, I mentioned four, 21 I correct myself, it is five years, over five years of 22 litigation, in light of the scope of the litigation and the 23 appeals filed, that that fee was also fair and reasonable, 24 MS, HIPP: Thank you, Mr, Gilroy, We have no 25 further questions. 32 . . 1 CROSS-EXAMINATION 2 BY MS, COOVER: 3 Q Good afternoon, Mr, Gilroy, 4 A Hello. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q All I am going to ask you -- I recognize that you said that you believe that the claims -- I am sorry, that the bills were not only -- that you believe that they were for enforcement? A That's correct, Q Are they not -- is not a substantial portion for defending against claims -- defending appeals and defending against claims by the Augsburgers? A No. My understanding is the Township was -- or, the Authority was the moving party in this particular situation, If a claimant, such as a property owner, in this circumstance felt a fee was too high, I believe there is a procedure for them to pay the fee and then to bring an action themselves, pay the fee In protest, bring an action themselves against the Township for a refund of the fee, And in those situations I don't believe an attorney's fees matter would be at issue, So in all of these proceedings, even though the Augsburgers filed defenses, they were not -- it wasn't a matter of the Township defending those defenses. It was merely the Township prosecuting the claim, trying to enforce the 33 . . 1 $3,000,00 payment. 2 MS, COOVER: We have no further questions of 3 this witness, 4 MS, HIPP: No further questions for Mr, 5 Gilroy, 6 BY THE COURT: 7 Q And if you can't answer this, I will 8 understand, After the appeal was exhausted with the Supreme 9 Court, and the underlying issue of the distance and so 10 forth, are you familiar with what then happened afterwards 11 in the record of this case? 12 A My understanding is that there was some 13 petition by the Augsburgers contesting the amount of the 14 fees charged for the legal fees, and that's why we are here, 15 Q And was pursuant to some attempt to obtain a 16 sewer facias or something like that, I am not sure how 17 that's spelled. , Are you familiar with that concept? 18 A I can't pronounce it either, But basically 19 that's to enforce the judgment and to get a money judgment 20 on a certain amount for the lien, And I assume in this 21 particular circumstance it would have been the principal 22 amount owing, the interest, plus the attorney's fees at that 23 point, And, logically, that was probably the first time the 24 total amount of attorney's fees were noted, And at the time 25 of -- much like any other payment of a judgment, what's the 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 . . bottom line, here it is, Q As you said, then apparently objected to by the Augsburgers, and that's why we are here today? A That's right, And I think procedurally properly, because, for example, if the fees charged to the Township in this were $300,00 an hour, I wouldn't be sitting here giving the opinion I am, And I think under the law this is the time where they have the opportunity to contest fees, You wouldn't be contesting the rate of attorney fees during the process, because if they win, they don't have to pay attorney's fees, Q If, for example, their appeal to the Commonwealth Court had been of considerable merit? A That's correct, THE COURT: Thank you, MS, HIPP: We have no further witnesses or evidence to present, THE COURT: I will be happy to hear from the Augsburgers, MS, COOVER: I would like to call Tim Augsburger, 22 Whereupon, TIMOTHY R, AUGSBURGER, having 23 been duly sworn, testified as follows: 24 DIRECT EXAMINATION 25 BY MS, COOVER: 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Q Good afternoon, Tim, I am not going to go into the long litigation, but initially what was your first complaint with the Municipal Authority or with the sewer system? A The question about the distance on my property, Q And how did you make the Authority aware that you had", A They had placed a lien on my property, And the only way to defend my property, obviously, is to come to court to defend it, I was trying to defend my property, because it is over 200 foot from the sewer line, Q Did you -- I am sorry, A My neighbors have a one foot lateral, a fifteen foot lateral, Q Did you genuinely believe that you had merit I have in your claims? A Absolutely, Q Did you bring these claims merely to harass the Authority? A Absolutely not. I still believe my house is over 200 foot, If they have a one foot lateral, like my neighbor does, it would be over 200 foot, They put one fifteen foot towards my house, for no obvious reason, Now I am within the distance. There is also another house in 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . Churchtown that's 215 feet, They decided not to put a lateral towards their house at all, and they are not hooked up. Q Did you represent yourself pro se in the substantial amount of the substantive proceedings? A Yes, I did, Q Previously to the attorney's fees issue? A Yes, I did, Q You prepared the appeal to the Superior Court yourself? A Yes, I did, I did all my own briefs and all the paperwork and the court proceedings all myself, Q And after the decision by the Superior Court, did you at some point decide to go and pay, make payment on these? A Yes, I did, I had collected $7,000,00 over the four years that the court was in litigation over this, and in respect to losing the case. And at that time I took $7,000.00 cash, which the Authority is just down the road from my house, I took it down there to pay JoAnn Hollister, And at that time is the first time that she mentioned that I don't only owe 7,000, that I owe more than that, So I tried to, you know, pay them what they wanted after losing this court hearing. And when she proceeded to tell me that there 37 1 2 3 4 5 6 7 8 9 10 11 12 13 . . was attorney's fees attached, I asked her if she had a bill or there was any paperwork that had that on it, and she told me to come back in three days and pick that up, I did go back three days later and pick up off of JoAnn Hollister -- what she gave me, she considered a bill, was a white piece of paper with her handwriting on it with three numbers on it. Q And what were those three numbers? A The 3,000 for the hookup, the 4,000 lowed for not paying for four years while I was in litigation, I didn't even know whether I was supposed to be paying for the sewer system that I was in litigation at the time for the three years, I had no idea whether I was to hook or cot 14 until the litigation was done, So now they have charged me 15 16 17 18 19 20 21 22 23 24 25 all these attorney's fees while I was in litigation, trying to find out whether I was even able to hook, So those two fees, plus the attorney's fees at the time, which was like -- they just wrote $12,OOIJ,OO down, 4,000, 3,000, and added those three up, And that was the only paper I have ever received, Q Did they give you -- did you receive an itemized bill of what those attorney's fees were? A No, Never, Q Did anybody discuss with you what the attorney's fees were other than Ms, Hollister? 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . A No. She never discussed them either, All she did was give me that white piece of paper with four numbers on them, with a plus sign, that was not an Authority paper. It had nothing at the top, nothing at the bottom, It was a white blank piece of paper, in large handwriting of hers, That's what I received, Q At anytime, either prior to going to her office or after that, have you, up to this date, ever received an itemized billing of the attorney's fees or any kind of bill? A No, I have never, The only paper that I received was the one that I actually walked up and she handed to me. Nothing was ever mailed to me, Q Did anybody make you aware at anytime that you could access these in public record? A No. They did not, Q Were you aware that you could? A No. I was not, As a matter of fact, I did call Mr, Bogar's office at one time to find out, and t~ey told me that that is something that I have to do through the Authority. Q Did you contact the Authority? A I contacted the Authority and asked them, And that was done in the three days that they told me I had the attorney's fees, I called and asked what the attorney's 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 hiring an attorney to try to defend my property when it 24 would cost double the amount? So I tried to defend it on my 25 own, I figured if I lost, I would pay it. It is as simple . . fees would be, And they just said that I needed to contact the Authority, They are the ones responsible for that, And that's when she gave me the piece of paper that she wrote up, you know, what she considered", Q I just wanted to clarify something you said, Is it correct that you attempted to pay the Authority, that you attempted to give them money? A I had $7,000,00 in my pocket to hand to JoAnn Hollister after I was denied from the Supreme Court, Within days I walked that money up, And I was prepared to hand it to her, until she told me there was attorney's fees attached, And then, I mean, I wasn't about to hand them money when I knew there was bigger issues involved and that, when I knew how big those attorney's fees might end up being, Q Do you feel that it is fair to have the amount of the attorney's fees? A I don't think the attorney's fees are fair at all. My opinion is I went into this myself to save myself attorney's fees, because I knew that there was only $7,000,00 anyway. For me to go and to hire an attorney to begin with, would cost me $7,000,00, So why would I bother 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . I owe $7,000,00 if the court says I do, Okay, Now all of a sudden I have ended up paying $6,000,00 myself in my attorney's fees, They want fifteen or 16,000 plus the hookup, I am looking at $30,000,00 to hook up to the sewer system now, And my full opinion is the Authority themselves hired Mr, Bogar as their attorney, as that, They didn't have to hire an attorney. It is not mandatory for anybody to hire an attorney, The Authority themselves could have come in here on their own and defended themselves like I did, They took it under their own wing to hire an attorney, I didn't ask them to hire an attorney, I didn't tell them they had to have an attorney, I never told them that they must do this, There is nothing written, I don't think, anywhere that they have to have an attorney, So they took it on themselves to hire an attorney, So when they did that, why should I have to pay for them, pay everyone of their hours? And how is a person to defend his own property if that is the law in the United States of America? How would one person defend themselves if I was going to know that I would have to pay $23,000,00 to try? Q Would you have defended yourself? A Absolutely not, MS, COOVER: I have no other questions, CROSS-EXAMINATION 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MS, HIPP: . . Q Mr, Augsburger, did you ever request an itemized bill from Ms, Hollister or the Authority? A I didn't specifically call it an itemized bill, I did call Bogar's office when I went up to pay the $7,000,00 and they told me there was attorney's fees, I went home, the very next day or that day, I can't remember exactly which it was, I called Bogar's office, and I am not sure who I spoke with, but I said that I need the bill or the amount of the bill that I owe for the Authority for what's going on here with my case, And the only thing they told me was you need to go to the Authority to get that, But you never requested an itemized bill, yes Q or no? A Q to take the money? A that, Q A Q No, And when you went to the Authority that day $7,000,00 sum, did Ms, Hollister refuse your No, She told me that I owe a lot more than Did you attempt to make a partial payment? No. And, Mr, Augsburger, are you familiar with the connection fee lien itself that was filed with this court back in 2001, the lien document itself? 42 1 2 3 4 5 6 7 8 9 10 11 12 13 . . A Can you repeat that, please? Q Are you familiar with the municipal lien for sewer connection that was -- I believe you are, It was the genesis of this matter. A Yeah, Q And did you ever read that lien document? A Yes, Q Are you familiar that the lien states that -- I believe the lien itself has been made of record in this matter. We, of course, have additional copies of it here today. two, I direct your attention to the bottom of page If you could read through that paragraph and tell me 14 if a reference to the imposition of attorney's fees is 15 16 17 18 19 20 21 22 23 24 25 included? A Monroe Township hereby files a municipal lien for the sewer connection in the amount of $3,000,00, which connection and fee has been duly assessed against Tim Augsburger and Janel C. Augsburger, adult individuals, property described herein, on June 17, 2001, and for which sum the interest and the amount of ten percent, along with penalties and all costs, including attorney's fees, a municipal lien is claimed against the above-described real property and premises, MS, HIPP: Thank you, No further questions, 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . THE WITNESS: Can I make a statement on that? THE COURT: Sure, THE WITNESS: I have been to court myself in other situations throughout my life, and I have also noticed on almost every court hearing that I have ever gone, and I have also defended myself in all these cases in the previous past not previous, I mean in the past over my life, and most of the papers that I have received from other attorneys have always said this. I just figured that was something standard that is put into attorney's letters, because most court cases that I have ever seen have that same writing in it. REDIRECT EXAMINATION BY MS, COOVER: number. Q What's your occupation, Mr, Augsburger? A I am a carpenter and general contractor, Q Do you have any legal training? A No, MS. COOVER: Does the exhibit have a number? MS, HIPP: We are happy to give that a It is the lien itself, which we believe is a part of the record in this proceeding, THE COURT: But for this hearing it would be Exhibit No, 9? MS, HIPP: We are at Exhibit No, 10, 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 . . BY MS. COOVER: Q On Exhibit No, 10 that Ms, Hipp gave you, she had you read the bottom of page two, Does that list a specific amount of attorney's fees? A It does not, No, MS, COOVER: I have no further questions, THE COURT: Any other testimony? MS, COOVER: I don't have any other witnesses, Your Honor, but I would like to make a statement, THE COURT: Thank you, Mr, Augsburger. THE WITNESS: Thank you, THE COURT: Well, did you want to perhaps have the opportunity to respond to their written memorandum? MS, COOVER: I haven't been aware there is a written memorandum, MS. HIPP: I gave you the brief that's on your desk, THE COURT: Well, then don't take the time now, MS, COOVER: I am sorry, THE COURT: Go ahead, if there is anything you want to say? MS, COOVER: Sure, 45 . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Whereupon, Ms, Coover closed on behalf of the Augsburgers,) (Whereupon, Ms, Hipp closed on behalf of Monroe Township,) (End of proceedings) 46 . . CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same, '6~LJ~ Barbara E, Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed, ~ '/ Da e" 1- $/ /' Z-~ ~4L J, District 47 ".. t.....(~ "'" \;:"-:, uJ~;' tt ~~} 'J,-r:\~ 0(') 6(': >:;\';';', I.l-'f-; '6 \!'l c:::> ~ :\C 0.- ...p t''' C\~ ~ ,r> g c--' r ,-- -;z. ::'14 ,"~!l~. \?-.:J <'1 -,~: .[-:<; -.~:;}~~. "'::' ~":;--::, 6 o~- 123~ April 28, 2005 Tb: The Honorable Kevin A. Hess Ftom: Timothy R. Augsburger/Janel C. Augsburger , , In Re: Defendant/Owners Timothy R. Augsburger/Janel C. Your Honor, It is apparent after several attempts to resolve these ma~ters with Monroe Township Municipal Authority, they have be~n unwilling to accept any of our offers. Mr.and Mrs. Augsburger have made the payment to the Authority sh~rtly after Your Order was given on March 9, 2005. The pa1ment was made but the liens remain. These proceedings have been a major upset on the lives of th~ Augsourgers and have tried to resolve these issues once again. Af~er spending thousands of dollars over the years of litigations. an~ accepting their losses, they need more than anything to resolve this issue as cost effective as possible. Please consider this Objection to the Authorities Appeal dat~d April 8, 2005, and the removal of the liens No.Ol-436l and NO.~4-184 from their property. Respectfully submitted, ~~~ Timothy R. gsburger \MONROE TOWNSBlP, Claimant IN THE COURT OF COMM:ON PLEAS Of CUMBERLAND COUNTY, PENNSYLVANIA \is, 01-4361 MUNICJPAL LIEN 1J1MOTHY R, AUGSBURGER and : JANEL C. AUGSBURGER, Owner:~ MONROE TOWNSHIP, Claim.ant IN THE COURT OF CONfMON PLEAS OF CUMBERLAND COUNTY, PENNSl't V AN1A VS. 04-1236 C1VlL ./ tIM01HY R. AUGSBURGER and : JI<\NEL C, AUGSBURGER, Owners OBJECTION TO THE APPEAL OF THE JUDGEMENT ORDER Notice is hereby given that Timothy R. Augsburger and J~nel C. Augsburger Owners/Defendants above named. hereby O~ject to the Appeal made by the Monroe Township Municipal Authority. ,,,bove named Claimant. on the 8th day of April. 2005. Respectfully submitted. April 28. 2005 ~7~ . MONROE TOWNSHIP, Claimant vs, IN TIIE COURT OF COMM:ON PLEAS or CUMBERLAND COUNTY, PENNSYLVANIA 01-4361 MUNICIPAL LIEN TIMOTHY R, AUGSBURGER and JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, ClaiI]:lant IN TIIE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs, 04-1236 CIVIL TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, Ownet.5 CERTIFICATE OF SERVICE I Timothy R. Augsburger, hereby certify that a copy of the foregoing OBJECTION to the APPEAL was served this day via United States mail, postage prepaid addressed as follows: James D. Bogar/Jennifer B. Hipp Attorney's at Law 1 W. Main St. Shiremanstown, Pa. 17011 Via hand delivery to: The Honorable Kevin A. Hess Cmmberland County Courthouse one Courthouse Square Carlisle, Pa. 17013 April 28, 2005 mJ x Timothy R. A rger ,...., = ~ !~ :;:"-J 1') CO -0 :~: l~~.., -<. ~~ r) >-\'\ '11'1 rn r=: 4:jrr1 "OCl (-~)l~) =i:'-~; <?Zi :~': en L) .\ .j:".... <-0 ",-<,. c:> MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-4361 MUNICIPAL LIEN TIMOTHY R AUGSBURGER and : JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, Claimant vs. : IN THE COURT OF COMMON PLEAS OF : )X1MBERLAND COUNTY, PENNSYLVANIA V 04-1236 CIVIL TIMOTHY R AUGSBURGER and : JANEL C, AUGSBURGER, Owners IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS. J, In this case, Monroe Township has appealed our order of March 9, 2005, wherein we granted, in part, the motion of Timothy and Janel Augsburger to strike/open a judgment Specifically, we struck from the Township's judgment more than $5,000 which was the Township's claim for attorneys' fees, The Township has appealed, Litigation between these parties goes back to July 2001 when Monroe Township filed a municipal lien in the amount of$3,000 against the Augsburgers, The amount of the lien constituted a sewer connection fee for the Augsburgers' real estate and dwelling home located at 1288 Boiling Springs Road, Boiling Springs, Pennsylvania, The Augsburgers filed a petition to strike Monroe Township's lien, A hearing was held and this court entered an order on June 5, 2002, denying the petition to strike. The Augsburgers appealed our order. An opinion was filed on August 7, 2002, pursuant to Pa,R.A,P, 1925, The core of our opinion read as follows: 01-4261 M.L.D, 04-184 CIVIL Thus, the issue before the court is whether the Augsburger house is within two hundred feet of the sewer system, Another question is presented by the Augsburgers; namely, whether the distance of two hundred feet is the distance between the sewer lateral and the principle building or the sewer line and the principle building? While there is an argwnent that the lateral is part of the sewer system for the purposes of the ordinance, we need not, in the end, contend with this issue, This is because, even asswning that the main sewer line must come within the two hundred feet, this requirement has been met. Ronald E. Stephens, qualified as an expert in engineering and surveying for the purposes of this case, conducted measurements between the sewer system and the Augsburger home, According to his testimony, the main sewer line is one hundred ninety-eight feet and nine inches away from the Augsburger house, In order to determine the location of the main sewer line, Mr, Stephens used the "as built" drawings, An as built drawing is one which indicates the final location of the sewer system as placed in the ground, Nothing short of digging to expose the sewer line could resolve this case to a mathematical certainty, Nonetheless, we have no reason to doubt the accuracy of the as built drawings and will rely on them in reaching our conclusion in this case, Our decision was affirmed by the Conunonwealth Court in a memorandum opinion written by Judge Leadbetter and dated June 3, 2003, The Supreme Court of Pennsylvania declined to hear the matter. On March 24, 2004, the Township filed a Writ of Scire Facias Sur Municipal Claim for the sum of $3,000 with interest and penalties together with costs "including attorneys' fees," The Writ was served on March 30, 2004. On or about April 2, 2004, Timothy Augsburger went to the offices of the Monroe Township Municipal Authority with the intent to pay the outstanding balance on the municipal lien filed against his and his wife's property. Upon 2 01-4261 M.LD, 04-184 CIVIL learning of the amount claimed for attorneys' fees, he did not make the payment as intended, On May 26, 2004, the Augsburgers filed a motion to strike/open judgment. This served to frame the issue with respect to the question of whether reasonable attorneys' fees had been imposed in this case, The bulk of the attorneys' fees in this case have been incurred in connection with the litigation involving the initial assessment of the sewer connection fee, This involved proceedings in this court as well as in the appellate courts, The Township has taken the position that this litigation was designed solely to harass the Momoe Township Municipal Authority and to delay the owners' responsibility to pay the connection fee, They have also referred to the Augsburgers' contentions as "frivolous," Neither this court nor the Commonwealth Court, however, expressed the view that the Augsburgers' position was frivolous, The case of Township of Springfield v, Thomas, 645 A,2d 359 (Pa.Cmwlth. 1994) stood for the proposition that there was no authority under the law to include attorneys' fees in connection with collection services involving municipal sewer liens, No doubt, as a reaction to this case, the law was changed to expressly allow for the collection of attorneys' fees, 53 Pa,C.S,A. 7106 now provides for the collection of "fees incurred in the collection of any delinquent account, including reasonable attorneys' fees," The collection of attorneys' fees is tempered by the language in subsection (a.l): (a. I ) It is not the intent of this subsection to require owners to pay, or municipalities to sanction, inappropriate or unreasonable attorney fees, charges or expenses for routine functions, Attorney fees incurred in the collection of any delinquent account, including municipal claims, municipal liens, taxes, tax claims and tax liens, shall be in an amount sufficient to compensate attorneys undertaking collection and representation 3 01-4261 M.LD, 04-184 CIVIL of a municipality or its assignee in any actions in law or equity involving claims arising under this act A municipality by ordinance, or by resolution if the municipality is of a class which does not have the power to enact an ordinance, shall adopt the schedule of attorney feesJlJ Where attorney fees are sought to be collected in connection with the collection of a delinquent account, including municipal claims, municipal liens, taxes, tax claims and tax liens, the owner may petition the court of common pleas in the county where the property subject to the municipal claim and lien, tax claim and lien or taxes is located to adjudicate the reasonableness of the attorney fees imposed.... 53 Pa,C.SA 7106(a,l), The narrow question posed by this case is whether the attorneys' fees sought were "incurred in the collection of any delinquent account" In this case, the Augsburgers initially questioned the validity of the lien against their real estate, They raised a very real issue concerning whether or not, given the distance of their home from the sewer line, they were required to connect, In the end, we gave the Township the benefit of the doubt and concluded that the Augsburgers were close enough to the sewer line to require connection: albeit by inches, We were upheld on appeaL Having lost the battle with respect to the validity of the lien, Mr, Augsburger went to the offices of the Township intending to pay what he owed, We do not agree that the Augsburgers, up until that time, had acted in bad faith nor that their opposition to the imposition of the lien was unreasonable. The Township, in essence, posits that legal fees incurred in defending the validity of a lien equate to legal fees incurred in the "collection of a delinquent account." We do not believe that this accurately reflects legislative intent [II The Township has produced correspondence from other municipalities indicating that its attorneys' fees comport with those customarily charged in this area. The Township, however, has not produced an ordinance or resolution adopting its schedule of attorneys' fees. We did not address the issue of whether the failure of a municipality to "adopt" a schedule of attorneys' fees is fatal to its claim. 4 . 01-4261 M.L.D, 04-184 CIVIL Pennsylvania has consistently followed the American rule which provides that there is no recovery of attorneys' fees absent an express statutory authorization, a clear agreement by the parties or some other established exception, Merlino v. Delaware Cry" 728 A.2d 949, 951 (Pa, 1999), Moreover, statutes will not be construed to allow for the award of attorneys' fees unless the statutory provision is express. Id A corollary of that principle, we believe, is that attorneys' fees ought not to be awarded beyond the scope permitted by the statute, The attorneys' fees that are at issue in this case are of two types: attorneys' fees incurred in upholding the validity of the lien; and attorneys' fees incurred in defending the right to collect attorneys' fees. Short of the filing and service of a writ of scire facias, little or no effort was expended in the actual collection of a delinquent account For this reason, we continue to believe that our striking of the attorneys' fees was proper. May 11' , 2005 J James D, Bogar, Esquire Jennifer B. Hipp, Esquire For the Claimant Don Bailey, Esquire Sheri Coover, Esquire For the Owners :rlm 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Monroe Township Municipal Authority, Appellant 64 - f;) 3G fvtLO) v. No. 714 C.D. 2005 SUBMITTED: August 12,2005 Timothy R. Augsburger and Janel C. Augsburger BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES R. KELLEY, Senior Judge OPINION BY JUDGE LEADBETTER FILED: September 20, 2005 The Monroe Township Municipal Authority (Authority) appeals from the order of the Court of Common Pleas of Cumberland County (common pleas) striking $5,106.20 from the Authority's judgment against Timothy R. and Janel C. Augsburger. The amount struck from the judgment represents legal fees incurred in the litigation of the Augsburgers' contest of the Authority's claim for sewer connection fees. We affirm. In July of 200 I, the Authority filed a municipal lien against the Augsburgers' residence for an unpaid sewer connection fee in the amount of $3,000.00. The Augsburgers, acting pro se, contested this claim on the ground that the distance from their home to the sewer line exceeded the distance at which the applicable municipal ordinance mandated connection. Following an evidentiary hearing, common pleas found that the Augsburgers were required to pay the tapping fee and, therefore, denied their petition to strike the lien. I On appeal, we affirmed.2 Thereafter, the Authority entered a judgment on the lien, in the amount of the tapping fee plus interest and attorney's fees. After appearing at the Authority's office, on April 2, 2004, to tender payment for the tapping fees and learning that satisfaction of the judgment required payment of $5,106.20 in attorney's fees, Mr. Augsburger refused to make any payment and, on May 26, 2004, filed the present petition to strike the interest and attorney's fees from the amount of the judgment. Following a hearing, common pleas determined that attorney's fees were not justified and struck that amount from the judgment. Common pleas denied the Augsburgers' request to strike the accrued interest on the tapping fee. Thereafter, the Authority filed the present appeal. On appeal, the Authority contends that, pursuant to Section 3 of the Act of May 16, 1923, P.L. 207, as amended, 53 P.S. S 7106 (Municipal Claims Act), it is entitled to collect the attorney's fees it incurred in obtaining satisfaction of its lien for the tapping fee. In relevant part, Section 3 provides: (a) All municipal claims, municipal liens, taxes, tax claims and tax liens may hereafter be lawfully imposed or assessed on any property in this Commonwealth, and . . . shall be and they are hereby declared to be a lien on I Monroe Township v. Augsburger, (No. 01-4361 Municipal Lien, filed August 8, 2002) (opinion setting forth the reasons for the order entered by common pleas, on June 5, 2002 denying the Augsburgers' petition to strike the lien). 2 Monroe Township v. Augsburger, (No. 1589 C.D. 2002, filed June 3, 2003). After the matter returned to common pleas and prior to entry of a judgment, the court granted the Township's motion to amend the caption to substitute the Authority as plaintiff. 2 said property, together with all charges, expenses, and fees incurred in the collection of any delinquent account, including reasonable attorney fees under subsection (a.l), added thereto for failure to pay promptly. . . . (a. 1) It is not the intent of this subsection to require owners to pay, or municipalities to sanction, inappropriate or unreasonable attorney fees, charges or expenses for routine functions. Attorney fees incurred in the collection of any delinquent account. .. shall be in an amount sufficient to compensate attorneys undertaking collection and representation of a municipality or its assignee in any action in law or equity involving claims arising under this act. 53 P.S. S 7106(a) and (a.l) (emphasis added). Common pleas properly construed this provIsIOn as authorizing attorney's fees only in the collection of a delinquent account. As common pleas recognized, the legislature, in 1996, amended this provision of the Act in apparent response to this court's decision in Township of Springfield v. Thomas, 645 A.2d 359 (Pa. Cmwlth. 1994). In Township of Springfield, our court held that the lien for the collection of delinquent sewer assessment fees could not include attorney's fees for collection services and litigation because Section 3 failed to authorize the imposition of such fees. Thereafter, the legislature amended subsection (a) to authorize attorney fees "incurred in the collection of any delinquent account." While the Act does not define "delinquent account," we agree with common pleas that failure to pay while asserting a reasonable contest, such as that asserted by the Augsburgers, to the validity of the lien does not render an account delinquent. Hence, attorney's fees are not justified in this case. Moreover, we note that in enacting the 1996 amendments to the Act, the legislature added subsection (a. 1), which, in addition to the language quoted above concerning delinquent accounts, requires that the municipality adopt by 3 ordinance a schedule of attorney fees,3 and subsection (a.3), which requires that the municipality, at least thirty days prior to assessing attorney fees, notify the property owner by certified return receipt mail of its intent to do SO.4 The record contains no evidence that these prerequisites were satisfied. Absent this evidence, the Authority could not impose the attorney's fees even if we had deemed the account delinquent. Accordingly, we affirm. 'IS. LE-cO-biL BONNIE BRIGANCE LEADBETTER, Judge 3 Specifically, the pertinent language in subsection (a.l) states: "A municipality by ordinance, or by resolution if the municipality is of a class which does not have the power to enact an ordinance, shall adopt the schedule of attorney fees." Monroe Township is a first class township authorized to adopt ordinances under Section 1502 of The First Class Township Code, Act ofJune 24, 1931, P.L. 1206, added by the Act of May 27, 1949, P.L. 1955,53 P.S. S 56552. We note that the minutes of the regular meeting of the Authority conducted on December 17, 2003, indicate the Authority "resolved to approve the 2004 Fee Schedule." This does not satisfy the requirement in subsection (a. 1). 4 Subsection (a.3)(1) states: "At least thirty days prior to assessing or imposing attorney fees in connection with the collection of a delinquent account, including municipal liens, taxes, tax claims and tax liens, a municipality shall, by United States certified mail, return receipt requested, postage prepaid, mail to the owner the notice required by this subsection." 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Monroe Township Municipal Authority, Appellant l)l-{ ~ I)Jy (; UU)) v. No. 714 C.D. 2005 Timothy R. Augsburger and Janel C. Augsburger ORDER AND NOW, this 20th day of September, 2005, the order of the Court of Common Pleas of Cumberland County in the above captioned matter is hereby AFFIRMED. 'JS .lecol~~/ BONNIE BRIGANCE LEADBETTER, Judge ,._c::\ , . (~,~' "j C, 1"'\ c.;" . ""\ . -""" . v ..v' . . . Q c 9 <"-~ "" (/"J ,-f1 --0 N - ",: f-, c-: -/' ~ ......!.. ~ ~"" f11 f:: ...,.,i'D i3~ ..--} ~.fl -C1'\ ,',].<:1 _,;<-f1"\ ~ 'J;:; :'i 'P" ~ - - o -.P