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~1unidpll1 Lien Docket
\0), 95-3403 ~, ~9 22-
l.
Scalf miller 10 1:1, JllU'd II. t" jll.unnlr, monon lor n,w tnlll.
d,C,ndanl'14.murnr to _ompl.unl, 11';./:
OWmrlol' l'rulllllll.'I)' Obl"l!Li,onH md Clr.lmHnl' 'I:! Preliminary Objections
to I'n Ilmini.1ry nil),"" Tonll
Id.nlLt'y ,oun..l whQ 'NUl Jl~U' _III':
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Philip II. Sr:ilre
(a) rorpllllr.tlfC:CI,llmllltl Snelhlker &'l3rCI1lICnliln, P. C., 44 ~1. Pain St.
Addreee I lIechilni':sbur<.J, r 11 17055
ib) lor JIIII"W.tl Owll"nll Oonm 1<' lIamlker
Addro8el 1403 l!clro<le Ave.
Cho~tur PTI. 19013-5702
3. I will nOlllY ~ pam" lI\vrHUl~ 'V\~~n tW" J~y, th~t trul _ale h:u '~een
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4. Argument ~nurt Dotol
Call of Argument Li8t Dotel
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LAW II""C'.
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InlNNIMAN
SILVER SPRING 'fOWNSIIIJl I IN THE COURT OF COMMON PLEAS OF
AUTHORITY, I CUMBERLAND COUNTY, PENNSYLVANIA
C 1tI imant I
VII. t MLD TERM 1995
I
JOliN M. POTTEIGER IInd I NQ. 95-3403
LYNETTE F. PO'I'TEIGER, I
Ownerll t MUNICIPAL LIEN DOCKET
DRl~.lN_~~RI-Qf:_~1AIMANT'S PRELIMINARY OBJECTIONS TO
OWNERS' PRELIMINARY OBJECTIONS
1,.__...fM:.'1'1JAL...AtjD PROCEDURAL BACKGROUND.
On June 26, 1995 the Claimant herein, Silver Spring Township
Authorlty ("Authorlty") filed a Municipal Claim against John M.
Potteiger IInd I~nette F. Potteiger, (nOwnersn) of a tract of land
with improvements lounted at 6600 Carlisle Pike, Mechanicsburg,
(silver Spring 'fownship) Pennsylvania. The Municipal Claim is in
the amount ot $4,550 for sewer permit fees, with interest and
costs. The Authorlty understood that the premises was a single-
family dwelling and lssued a sewer permit on November 23, 1993
based upon that understanding. Following payment of $2,300 in
fees, a December 9, 1993 inspection of the sewer connection by
the Authority revealed that the premises was in fact a two (2)
unit dwelling and not a single"family dwelling. The Owners have
not paid the additional $4,550 due to the Authority.
On July 14, 1995 the Owners filed Preliminary Objections to
the Munlcipal Claim. On July 26, 1995 the Authority filed
Claimant's Preliminary Objections to Owners' Preliminary
fees with respect to a sewer permit that had been previously
assessed and approved withol.lt condition and that had already been
totally and fully paid by Owners.
PACTS or THIS CASE~
The undisputed facts of this Calif;!, as recited in the
municipal claim of Claimant and admitted in Owners' preliminary
objections, are as follows~
1. Owners, John M. and Lynette F, Potteiger, are the owners of
a property located at 6600 Carlisle Pike, Mechanicsburg in
Silver Spring Township, Cumberland County, Pennsylvania.
2. Claimant, Silver Spring Township Authority, issued a valid
sewer permit on November 23, 1993 for connecting Claimant's
sewer system onto the property owned by Owners, a copy of
which is attached as Exhibit "1,"
3. Owners fully paid Claimant a total fee of Two Thousand Two
Hundred ($2,200) at the time of Owners' application for
hook-up to Claimant's sewer system on November 23, 1993.
4. By telephone call of December 3, 1993, Claimant admitted
that a minor error had been made in issuance of Owners'
sewer permit on November 23, 1993 and demanded an additional
fee of One Hundred and Fifty Dollars ($150), Owners
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immediately, on December 3, 1993, paid the increased sewer
connection fee.
6. Claimant performed the requisite site inspp.ction on December
9, 1993 and approved Owners' hook-up to C1Jimant's sewer
system, as duly recorded on Owners' sew~r permit and which
is incorporated herein as Exhibit "1,"
6. By letter of January 26, 1994, Claimant admitted that a
substantial error had been made in issuance of Owners' sewer
permit on November 23, 1993, a written acknowledgment which
is attached as Exhibit "2,"
7. Subsequent to Claimant's issuance of the aforementioned
sewer permit and acceptance of the sewer connection fee of
Two Thousand Three Hundred and Fifty Dollars ($2,350) and
subsequent to Claimant's final approval of Owners' hook-up
to Claimant's sewer system, Claimant purported to increase
the required sewer connection fees to Six Thousand Nine
Hundred Dollars ($6,900),
8. Beginning on January 26, 1994 and continuing to the present,
Owners have refused and continue to refuse to pay the
increased sewer connection fees.
9. On June 26, 1995, Claimant filed a municipal claim against
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Owners for the increased sewer connection fees, which by
statute, became a lien against Owners' property.
10. On June 30, 1995, Claimant filed a writ of scire facias
against Uwners seeking to prosecute the lien to judgment.
11. Owners filed preliminary objections to Claimant's municipal
claim on July 14, 1995, seeking to strike the claim,
12, Claimant filed responding preliminary objections to Owners'
preliminary objections on July 26, 1996 and on the same date
filed a praecipe for oral argument,
II. ARGUMENT SUPPORTING OWNERS' PRELIMINARY OBJECTIONS
Owners argue, as a matter of law, that: (1) they ar~
entitled to have Claimant's municipal claim dismissed because the
Pennsylvania Municipalities Authorities Act, 53 P.S. ~ 301 (1995)
("Municipalities Authorities Act"), and the Pennsylvania
Municipal Claims and Tax Liens Act, 53 P.S. ~ 7101 (1995)
("Municipal Claims and Tax Liens Act"), preclude Claimant from
raising sewer connection fees which were previously assessed and
paid; (2) Claimant's failure to exercise due diligence in the
assessment and collection of Owners' sewer connection fees and
its subsequent lack of due diligence in its final approval of
Owners' hook-up to Claimant's sewer system is a breach of
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contract which renders Claimant liable for any increased
assessment in sewer connection feesl (3) a lack of due diligence
may be found in Claimant's assessment and collection of
supposedly inadequate sewer connection feesl (4) by substantially
raising the sewer connection fees on Owners' property--to an
increase of Four Thousand Five ~undred and Fifty Dollars
($4,550) "-Claimant has adversely affected Owners' property
interests in violation of the Municipalities Authorities Act and
the Pennsylvania Sewage Facilities Act, 35 P.S, ~ 7501 (1995)
("Sewage Facilities Act") I (5) by seeking a municipal claim
against Owners for Claimant's alleged error in its assessment and
collection of sewer connection fees and Claimant's alleged error
in approving Owners' hook-up to Claimant's sewer system, Claimant
has violated the Municipal Claims And Tax Liens Act,
1. UNDER THE MUNICIPALITIES AUTHORITIES ACT, THE SEWER
CONNECTION FEES TO BE IMPOSED BY CLAIMANT ARE THOSE WHICH
WERE ASSESSED ON THE DATE OF APPLICATION AND PAYMENT OF
O~RS' SEWER PERMIT
Section 306 (A) (t) of the Municipalities Authorities Act,
which was in effect when Owners obtained the sewer permit in
question, provided that sewer connection fees shall be based upon
the "fee schedule at the time of payment and shall be payable at
the time of application for payment" (emphasis added),
Accordingly, the sewer connection fees to be imposed by Claimant
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are those which were assessed on the date of application and
payment for a sewer permit on November 23, 1993,
The case of Board of Comm'rs v. Toll Bros., 147 Pa. Commw.
296, 607 A.2d 624 (1992), reh'g and appeal denied (1993), is
instructive to this case, In Toll, the township issued building
permits to Toll Brothers at the time their development plans were
approved requiring the payment of a Five Hundred Dollar ($500)
sewer connection fee for each subdivision lot. Subsequent to the
township's approval of the development plans and subsequent to
the township's issuance of the sewer connection fees at the said
fee of Five Hundred Dollars ($500) per subdivision lot, the
township increased the sewer connection fees for each lot to Four
Thousand Dollars ($4,000), Toll Brothers paid the Four Thousand
Dollar ($4,000) fees under protest and filed a complaint against
the township. The Court of Common Pleas of Lehigh County ordered
the township to refund to Toll Brothers the excess fees paid
under protest, The Commonwealth Court subsequently affirmed the
trial court's order and held that the Municipalities Authorities
Act preoluded the township from raising sewer connection fees
which were previously approved.
While Toll did not specifically address a fee increase under
~ 306(B) (tl of the Municipalities Authorities Act, the
Commonwealth Court decision leaves no doubt that municipalities
may not increase their sewer connection fees after the date of
application and approval of a valid sewer permit. See also
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Hornstein Enters. v. Townahio of INnn, 160 Comnlw. 72, 634 A.2d
704 (1993), reh'g and appeal denied (1994). Accordingly, in this
case, the sewer connection fees to be imposed by Claimant are
those which were assessed on the date of application and payment
of Owners' sewer p~rmit. Claimant cannot subsequently incroase
Owners' sewer connection fees from Two Thousand Three Hundred and
Fifty Dollars ($2,350) to Six Thousand Nine Hundred Dollars
($6, 900) ,
2. CLAIMANT'S FAILURE TO EXERCISE DUE DILIGENCE IN THE
ASSESSMENT AND COLLECTION OP SEWER CONNECTION FEES IS A
BREACH OF CONTRACT WHICH RENDERS CLAIMANT LIABLE
As a matter of law, when a municipality constructs a sewer
system, the municipality is bound to exercise due diligence in
the assessment and collection of sewer connection fees, and
failure to do so is a breach of contract which renders the
municipality liable, A long line of Pennsylvania cases supports
this proposition, beginning with E.g. Price v. Scranton, 321 Pa.
504, 506, 184 A. 253 (1936). Clearly, in this case now before
the Court, Claimant did not exercise due diligence in the
assessment and acceptance of payment nor was due diligence
exercised when Claimant approved Owners' sewer hook-up. This
conclusion is supported by the following facts of this case,
which are not in dispute,
At the time that Owners' sewer connection fees were levied
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and payment was accepted, Claimant assessed a fee of Two Thousand
Two Hundred Dollanl ($2,200). Of that amount, Two Hundred
Dollars ($200) was devoted to payment of an inspection fee and
Two Thousand Dollars ($2,000) for tapping f~es. Claimant later
admitted that it had erred in its levy and demanded an additional
One Hundred and Fifty Dollars ($150) for lateral construction
costs, Subsequently, when Claimant approved Owners' hook-up to
its sewer system, the total fees that Owners had paid was Two
Thousand Three Hundred and Fifty Dollars ($2,350), Approximately
two months subsequent to issuance of a valid sewer permit and
subsequent to Claimant's final approval of Owners' hook-up to
Claimant's sewer system. Claimant acknowledged that an error had
been made in Owners' sewer permit, Clearly, by Claimant's own
admission of its error, Claimant has not shown the due diligence
that it was bound to exercise,
Accordingly, in this case, it would be unconscionable to
permit Claimant to sit idly by for a period of approximately two
months--neglecting to do its duty in the assessment and
collection of its sewer connection fees and failing to exercise
due diligence in its approval of hook-ups to Claimant's sewer
system--then to abruptly demand that Owners pay an increased
assessment of Four Thousand Five Hundred and Fifty Dollars
($4,550) in order to amend its evident neglect and failings. It
is simply unprincipled for Claimant to suddenly say to Owners
that they have no redress except to await the pleasure of
Claimant, who in its own good time, decided to substantially
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collection of Owners' sewer connection fees was inadequate.1
Accordingly, Claimant alone must be held liable for breach of its
obligation to exercise due diligence. Claimant is solely
responsible for levying its sewer connection fees,
3. BY SUBSTANTIALLY INCREASING THE SEWER CONNECTION FEES,
CLAIMANT HAS SO AFFECTED THE MAGNITUDE OF THE INCREASED FIES
AS TO ADVERSELY AFFECT OWNERS' PROPERTY INTERESTS IN
VIOLATION OF THE PENNSYLVANIA MUNICIPALITIES AUTHORITIES
ACT2
Owners argue that the increase in their sewer connection
fees adversely affects their property interests,3 It seems
apparent that at some point, the magnitude of a fee increase by a
municipality can adversely affect property interests as to render
continued ownership of said property meaningless4 and the fee
rates unreasonable,S
1 II there was an error made on your sewer permit fees for
6600 Carlisle Pike". you should have been charged $6,900
instead of $2,350,11 Letter from Claimant to Owners as of
1/26/94.
2 Section 53 P.S, ~ 3CJ6(B) (h) (1995) of the Municipalities
Authorities Act mandates that sewer connection fee rates be
reasonable, See West v, Hampton Township Sanitarv Authoritv,
1995 Pa, Commw, LEXIS 309 (June 25, 1995),
3 In this case, on the basis of the magnitude of the fee
increase, it is noted that raising Owners' sewer fee by Four
Thousand Five Hundred and Fifty Dollars ($4,550). plus the Two
Thousand Three Hundred and Fifty Dollars ($2,350) already
paid, amounts to a total sewer connection fee of Six Thousand
Nine Hundred Dollars ($6,900),
4 It is a matter of public record that the total assessed value
of Owners' two story house is only Five Thousand Nine Hundred
10
Pennsylvania law clearly Bupports Owners' proposition of
adverse affect, beginning with the case of Raum v. Board of
Supervisors, 29 Pa. Commw. 9, 370 A,2d 777 (1977), In Raum, a
township approved plans for subdivision of a particular
development. Subsequently, the township substantially incraased
the subdivision's fee schedules. The Commonwealth Court held
that owners whose property had bllen approved by a municipality
have the right to rely upon the fees schedules at the time of the
approval, Specifically, the Raum decision held that the township
was expressly precluded from subsequent changes or amendment of
their fee schedules which adversely affected the property rights
of owners.
4. BY SIIKING A MUNICIPAL CLAIM AGAINST OWNERS POR CLAIMANT'S
BRROR IN THB ASSBSSMENT, COLLECTION AND APPROVAL OP SEWER
CONNICTION PElS, CLAIMANT HAS VIOLATED THB MUNICIPAL CLAIMS
AND TAX LIBNS ACT
Section 53 P.S, 7440 (1995) of the Municipal Claims and Tax
Liens Act, which was in effect when Owners obtained the sewer
and Forty Dollars ($5.940), a property record of which is
attached as Exhibit "3,"
5 Owners are not claiming that there has been a manifest and
flagrant abuse of discretion by Claimant or an arbitrary
establishment of the sewer rate system in "iolat ion of the
Sewage Facilities Act, Accordingly, whether it is reasonable
to charge Owners a total sewer connection fee of Six Thousand
Nine Hundred Dollars ($6,900) ill not being raised as a
substantive issue. Owners have not, at this time, questioned
the propriety nor the legality of Claimant's activities
regarding the municipality's sewer system.
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permit in question, provides that sewer permit fees must be
asses sod in accordance with the strict terms of any appropriate
resolutions of a township Authority and that "any error made in
the name of the owner or owners ... cannot be enforced...."
Accordingly, as a matter of statutory law, Claimant's municipal
claim for increased sewer permit fee is invalid and cannot be
enforced.
III. CONCLUSION
OWNBRS' PRELIMINARY OBJECTIONS SHOULD BE SUSTAINED
~~AIMANT'S MUNICIPAL CLAI~ISMISSED
In conclusion, Owners contend that the Pennsylvania
Municipalities Authorities Act and the Pennsylvania Municipal
Claims and Tax Liens Acts can be relied on by the Court as a
basis for sustaining Owners' preliminary objections and
dismissing Claimant's municipal claim, The Pennsylvania Supreme
Court has long ruled that municipal statutes must be strictly
pursued as a matter of statutory mandate,6 E,g, Green Tree v.
Board of Prooertv Assessments. Aopeals and Review of Alle9heny
Coullty, 459 Pa, 268, 328 A.2d 819 (1974), J-\ccordingly, Owners
6 Section 1504 of the Statutory Construction Act, 1 Pa,C.S. S
1504 (1995), clearly provides that:
In all cases where a remedy is prohibited or a duty is
enjoined or anything is directed to be done by statute,
the directions of the statute shall be strictly pursued,
and no penalty shall be inflicted,..
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IJIl,YI'lR BrRINO TOHII!llllP I\UTIIORITY
1.75 CIIRLIBLft PI~ft
H!CIIIIHICBDUnO, I'll 17055
lUll!ll,lLI'Jl!t!1I't
PERHIT ,__ '9-,) ,;1/f'
rropArty l,ocllt Ion To n" Conn'ilct<,d I
6~y)() (~\~ _ /J.I"-e___
/t&.,dl , &.___l?t' 5"', .....
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rrnpnrty Own'!r'fl 110m'!, ^ddr"flfl (, Tel.'l
_.___uup.f~iJl J?~t:'{IhL-...
____.Z ~__ .'itA '/1,,--_ (:, ~...,,=---".J1.(',
____.dft'uf.__1!!- __.Ll (.'.,f'::f
'l'olephone , /'~(,. '/"'!L3J1
The nppllcllnt Agr"'es to odhar.a to 1111 rules on" rF.lr;)ulntlonll pertlllnlng to
the sewer ",ystem AS odopted hy Silver sprl ng "ownnh I p and tho R llvflr Spring
Township lIuthorlty.
^(ter one yeAr followl"q tho doto of connectJon to the Sew<:!r System, the
Mlthorlty shll11 makfl An enalysls of ActUAl dJscharge of Honresidentllll
Establishments, and adjust the Tnpplnq Fee previously collected, either upward
or downwnrd, bAsed upon the highest octufll 'lunrter-nnnun I d J sclliHge durinq thnt
period. If the m'ilAsured flow is greater thlln the permitted dlschllrge, the
^uthority shell adJuFlt the Topping Fae upwnrd hAllod upon the highest actUAl
qUArter-IInnual dischArge. No fee adjustment shllll he ",Ade or pllid after the
first yeAr's nnlllyels as required herelnAhove. In no event shAll the Tapping
Fee be less than $2,750.00. /'
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IIPPLICIINT... .-4;1, ';A ",1'6 ;-'
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Ll\TERlIL COIISTRUCTIOII COST
($150) ..... I . . . . . . . . , . .
"JI/l CKi
t7~, t.<
/~. (10 &.I "
IIlSrEC1'IOtl FF.E
($200) ............................
nu~!L..n.I
EXISTING IMPROVED RESIDEtlTI^L PROPERTY ($2,000)...... ka'. t:JO
IMPROVED PROPERTY
RAS Ident.ll'11 ($",750)..........................
lIonl'lr>lIld'mt lA 1
E~tlmRted dolly wnter consumptionl
1.____ gAl / "25) )( $2,750 ~ ............
"MIIL n!8.J!~~IUl'LltllI1~H1'_QtL>>.AIJL21.J1tl,l.!!l\.I.!CB. . . . . . . . . . .
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Permit ISSIl"d:
COtlSTRUCTION I'lEIMBUnSEHElIT COtlrOtlEtI'r
(SErIlI'll\TE I'^YI'F.IIT) ...............
Fln~l Inspection:
Dat:e:-jH;.3~._~_
8yt-,-!z).u-~i/-t."'~:\'~.,".L-
Oa\:e: 1./1,/ !}.Lt:J
BV: -r~~
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to.l
Silver Spnn T ownJip A "thont,
0475 C..II. n lke MC(h.nIC'~.' PA 17055
hon.t (717) 766.017
January 26/ 1994
John Potteiger
76 Silver Crown Drive
Meohaniosburg, PA 170~5
Dear Mr. potteiger,
As discussed at the December 15/ 1993 meeting ot the Authority
there was an error made on your sewer permit tees tor 6600 Carli.le
Pike. Since there are 2 apartments in this house you should have
been oharged $6/900.00 instead ~t $2/350.00. The breakdown is as
tollows:
2 tapping tees @ $2/750.00 each - $5/500.00
1 inspeotion tee @ $200.00 each - 200.0,Q
Total Due for Conneotion - $5/700.00
Less Amount Already Paid - $2.350.00
Additional Amount Due - $3/350.00
Plus Reimbursement Component - $1.200.00
2 components @$600.00 each
TOTAL DUE - $4/550.00
Two .eparate ohecks, one for $3,350.00 and one for $1,200.00 will
ba needed.
It you have any questions, please teel tree to oontact me.
Sincerely,
~~all
~::i:t~ Code Entorcement
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i'ADH......Ql_AY'I'JiQ.Rl 'UU
STATIl CASES I
Bernstein v. Portla~d Savings &-L9An-Associsti2n/
850 S.W.2d 694 (Tex. App. Corpus Christi 1993)
....... ,'.....
7
Binswanger v. Levy,
311 Pa, Super. 41, 457 A,2d 103 (1983) .,...........14/18,24
Board of CelOm' rs vo.-T911 Bt'others,
147 Pa. Commw . 298 , 607 A, 2 d 824 (1992 ) .................... 3
Bradl~y ~19htQgR,
202 Ill. 154, 67 N,E. 45 (1903) rev'd, 195 U.S. 25/
49 L. Ed. 76,24 S. Ct. 753 (1904) ......................... 7
Brennan v, SmJ..t.h,
6 Pa. Commw. 342, 299 A,2d 683 (1972) ...................... 14
Chartiers Valley School ~Y..- Virginia Mansimw
Apartments, Inc.,
340 Pa. Super. 285, 489 A,2d 1381 (1985) ........... 11, 12/ 13/
23
Commonwealth use of Willow.Highlands Co, v. ~.r.yland
Casual tv Co"
369 Pa. 300, 85 A,2d 83 (1952) ....,...........,............12
Commonwealth v. Atlantic & Gulf Co~ Stevedores.
1.n.Q.... ,
422 Pa. 442, 221 A.2d 128 (1966) ,... ,........ .... .......... 12
David v. Commonwealth,
143 Pa. Commw. 161, 598 A.2d 642 (1991) ............ 14,19,24
De Santis v. Swiqart,
296 Pa. Super, 283, 442 A.2d 770 (1982) ..... ............... 14
!iL-&_.Einance ~o. v. Board-21
Comm' rB,
168 Pa, Super, 143, 77 A,2d 746 (1951) ..,..................12
Detweiler v, School Diet~,
376 Pa, 555,104 A.2d 110 (1954) ....1......................12
Elmore v. PhiladelDhia,
179 Pa. Super. 535, 117 A.2d 765 (1955) .... .... ......... ... 12
1ii
E.mlll5!J.ll.LG.Hl'sQ J_,..Y_>-.Pit.t nbm!Jh ,
507 Pa, 53, 488 A.2d 2'/0 (1985)/ ........................... 12
EQJ:_lsL.Tw14_.M!!nis;iPi!.L~.\'!Ql'-...A,l!.11}Qr.i t y v. 1\11J.!lti~ Land.
~,
6 Pa. Commw. 569, 297 A.2d 185 (19'12) . ............ 12. 13. 23
f.l:.!llleriekson v,~,
110 ohio St, 459, 2 ohio I.. Abs. 390, 144 N.E. 299
( :. 924) ......... I . . . . . . . . . . . . . . . . I . I . . . , . . . . . . , I I . . I . . " I , . .. 7
Hall L. Goodman Co.,
310 Pa, Super, 465, 456 A,2d 1029 (1983) ,....",... 14. 20. 21.
24
Hickory Town~~~Q~~l,
201 Pa, Super. 260, 192 A,2d 231 (1963) '..'. ..... .......... 12
Hm:Illi.!&irLEJltill;:p~'l.,_.TQ\'Lrl!1J:il!LQl_..Llnn ,
160 Commw. 72, 634 A, 2 d 704 ( 19 9 3 ) ....,.................... 3
JJ!.llnetta Y.. Reck1- it is,
214 Pa, Super. 171, 251 A,;Jd 713 (1969)
Jim Walter Corp. v, EYHh,
279 Ala, 611, 189 So, 2d 129
....,..." 00'.'....,
12
(1966) ......,........, I" , . , , . ,
7
Keiper v, Keiper,
343 Pa, Super. 256, 494 A,2d
454 ( 19 8 5 ) ........,..... of . . . .
,
11
Klevanskv v. Redevelopment~~Qrity of R~~~, i
4 Pa. Commw, 365, 287 A.2d 444 (1972) ........... ..'......... 12
LCN Real Estate. rne, v, llorollgh..,of I'/vomina,
117 Pa. Commw. 260, 544 A,2d 1053 (1988) ........... 11. 12. 13
23
Leach v. Hough,
352 Pa. Super. 213, 507 A.2d 848 (1986) ................ 5.14
Levin v. Sillil!U:,
227 Md. 47, 175 A.2d 423 (1961) .......,....'.......,.,..... ?
l,inda Coal & supply Co, y..... Taoa coal ~,
416 Pa, 97,204 A,2d 451 (1964) .................... 4,
7.
15,
18,
5, 6,
8, 13,
16, 17,
19, 20,
24, 25
Litmans v. O'Dom'ell,
173 Pa. Super. 570,98 A,2d 462(1953) .....'................ 12
iv
Maqrini ~L-J~n,
17 Ill. App, 2 d 346, 1 50 N. E . 2 d 387 (3 d lJi at. 1958)......... 7
Maneine v, J:Qlli;.Q,m:J,ibert) Ui,1Y.inga & l/oan AlWoeiatiQll,
299 Pat Super. 260, 445 A,2d 744 ........,....,.'...."1.... 12
Matsehener v, PittshUK9h,
36 Pa. Commw. 69,387 A,2d 954 (1978) .,........,....,'......14
National Re~overy Systems~~braro,
287 Pa, Super, 442, 430 A.:.!d 686 (1981) ............14,15,16
24
HQlan v. Reading,
253 Pat 367, 84 A. 390 (1912) ........,,,................... 3
Orner_ v. Mallick,
515 Pa. 132, 527 A,2d 521 (1987), appeal denied,
652 A.2d B39 (1994) ....,........................... 14, 20,24
PNC Ba~_National Association v, BallLqmQ,
430 Pa, Super. 360, 634 A.2d 645 appeal denied, 648
A.2d 790 (1994) ..........................,.................11
Philadelphi,a llse oU,Qnv De Pa_ul & SQJl v, Maqnolia
Cemetery Co"
220 Pa, Super. 424, 289 A.2d 191 (1972) ............ 14,16,24
Wce v. ScrantQI1,
321 Pa, 504,184 A, 253 (1936) ..."".,.,.................. 3
Ouaker City Chocolate & Confectionery Co. v. Warnock
Buildinq Association,
347 Pa. 1B6, 32 A.2d 5 (1943) ......................:.......12'
RaulIl Y. Board of Supervisor/!,
29 Pa. Commw, 9, 370 A.2d 777 (1977)
..............,. I.., ',"
3
&igkett~ v. Alleqhenv CQYllty,
409 Pa. 300, 1B6 A,2d 249 (1962) ........................... 12
B.Qlu:er v. .R2b.uu,
345 Pa. Super, 469, 498 A.2d 919 (1985) ............ 11, 22, 23
2a!&hell v. Insurance ~~~gment Facility of
I:!illnsyl vania,
241 Pa, Super, 287, 361 A.2d 375 (1976) ..,.. ........ ....... 21
,
Shaoiro v. Center Townffb~,
159 Pa. Commw, 82, 632 A,2d 994 (1993), appeal
denied, Center v. Shaoiro, 537 Pa. 635, 642 A.2d
488 (1994) ......................................... 10,11,22
23
v
Tes~urg, v. Bq1j:4,
232 Pa, Super, 185, 335 A.2d 792 (1975) ....................12
Tully Drilling_Co. v. S~QDkin,
409 Pa, Super, 333, 597 A.2d 1230 (1991) ..............'.....11
Vartan v. Commonwealth,
151 Pat Commw, 86, 616 A.2d 160 (1992) appeal
denied ............................................. 14', 18, 24
Walla v , Ao\Lt.b!t.ilaternJ:illlnl!lyl vi.1nia TrIDlfl.!&r.t.
Authori ty,
105 Pa. Commw, 115, 523 A,2d 424 (1987) .................... 14
Hhi~ v. COI~Qrd Mut~~Insuran~e C~,
296 Pat Super, 171, 442 A,2d 713 (1982) nff'd, 500
Pa, 103, ~J4 A.2d 982 .................... I................. 14
Y~Bradford County Teleq[Qph Co"
346 Pa, 90,29 A,2d 533 (1943) .............................12
~rmJlyl vania State Statutesl
53 P.S. ~ 301 (1995) ("Municipali t iea Authorities Act") ...... . 3
53 P.S. ~ 7101 (1995) ( "Municipal Claims Act") ...... II' 2, 3, 8,
la, 11, 22
23, 25
53 P.S, ~ 7106 (1995) ( "Municipal Claims Act") .......... I..... 10
53 P.S. ~ '/182 (1995) ( "Municipal Claims Act") ............... . 10
53 P,S. ~ 7187 (1995) ( "Municipal Claims Act") ........... . 21, 22
~9vlvania Rules Of Civil Procedure I
Civil Procedure on "Depositions and Discovery,"
Pa.R.Civ, P. 4001 (a) (1) ..................................... 11,
Pennsylvania Practice Treati~l
Standard Pennsylvania Practice 2d ~ 102.10 ......... ........ ... 11
vi
I. IHTBQt1Y..Cl'IQli
A. ISSUB OP PRAUDULENT MISREPRESENTATION
One substantive deciding issue is presented to the Court by
Claimant's memorandumt Whether Claimant's municipal claim
contains the elements of fraudulent misrepresentation.1
B. PROCEDURAL ISSUES PRESENTED BY CLAIMANT
Claimant has present.ed five procedural issues to the court
in its preliminary objections in opposition to Owners'
preliminary objections: (1) Whether a municipal claim is a
pleading to which preliminary objections may be filed under the
Pennsylvania Rules of Civil Procedure ("Rules of Civil
Procedure,,);2 (2) Whether the Pennsylvania Municipal Claims and
Tax Liens Act, 53 P.S. !l 7101 (1995) ("Mun.icipal Claims Act") is
the exclusive remedy for municipal claim disputes;] (3) Whether
Owners' preliminary objections introduced new facts that did not
appear from the face of Claimant's municipal claim;4 (4) Whether
1 See discussion supr.a parts II.A.1-2. contending that
Claimant's municipal claim fails to allege a single fact
concerning fraudulent misrepresentation.
2 See discussio~ supra part 11.8.1. contending that a writ of
scire facias serves as a civil summons and complaint.
3 See discussion supra part 11.8.2. explaining that courts have
consistently permitted preliminary objections against scire
facias sur municipal claims.
4 See discussion supra part 11.8.3. maintaining that Owners'
preliminary objections only states facts and factual
propositions that appear in Claimant's municipal claim.
2
Owners' preliminary objections rained issues that cannot be
determined from the facts of record;! (5) Whether Owners'
preliminary objections stated factual propositions not appearing
in Claimant's municipal claim.'
II. ARGUMENT OPPOSING CLAIMANT'S PRELIMINARY OBJECTIONS
Owners contend that, as a matter of settled law, the
Pennsylvania Municipalities Authorities Act, 53 P.S. S 301
(1995), and the Municipal Claims Act, prohibits Claimant from
increasing Owners' sewer connection fees subsequent to the time
that it issued Owners their sewer connection permit and following
Claimant's unconditional acceptance of Owners' payment for their
permit. (Owners Mem. Supp. Owners Prel. Obj. 4-12).' ~'he one
exception to this prohibition against ex post facto fee increases
is if Owners knowingly made false statements to Claimant to
induce it to issue a sewer connection permit.'
5 See supra note 4.
6 1Q..
7 Hornstein Enters. v. Township of Lynn, 160 Commw. 72, 634 A.2d
704 (1993), reh'g and appeal denied (1994); Board of Comm'rs
v. Toll BrQ1L.., 147 Pa. COl11mw. 298, 607 A.2d 824 (1992), re}l'g
and appeal denied (1993); E.g., Raum v. Board of SUDervisors,
29 Pa. Commw. 9, 370 A.2d 777 (1977); E.g., Price v.~~nt2n,
321 Pa. 504, 506, 184 A. 253 (1936)/ E.g. NQlan v. Readin9,
253 Pa. 367, 84 A. 390 (1912).
8 See supra part II.A. contending that Claimant's municipal
claim does not allege that Owners knowingly made any false
3
While Claimant has presented six procedural issues to the
Court regarding Owners' preliminary objections, thers is no nced
for the Court to decide these procedural issues' if the Court
finds that Claimant's municipal claim does not allege fraudulent
misrepresentation.
A. ISSUB OP PRAUDUL~NT MISREPRESENTATION
By citing the case of ulnda Coal & Su~ply Co. v. Tasa Coal
~, 416 Pa. 97, 204 A.2d 451 (1964), in its memorandum (Claimant
Mem. at 3), Owners infer that Claimant evidently seeks to recover
its increased sewer connection fees by alleging fraudulent
misrepresentation.10 Owners, on the other hand, refute this
argument since Claimant's municipal claim does not assert the
elements that comprise fraudulent misreprcsentation.
(Claimant
Mun. Claim at . 4).
Owners maintain that Claimant's municipal claim fails to
assert that Owncrs knowingly made any false statements to
Claimant. similarly, Owners assert that Claimant's municipal
statements to Claimant to induce it to issue a sewer permit,
because Claimant cannot so allege.
9 See supra parts 11.8.1-2 and 3(1-8) with accompanying
discussion.
10 Claimant's asser.tion of fraudulent misrepresentation against
Owners is frivolous and, Owners submit, recklessly inferred,
because Claimant knows, that it cannot allege a single fact
which demonstrates or infers any fraud by Owners.
4
claim fails to assert that Owners made any fraudulent statements
to Claimant to induce Claimant to iosue them their sewer
connection permit. In sum, Owners contend that Claimant's
municipal claim does not contain the elements of fraudulent
misrepresentation.
1. THill FRAUDULENT MISREPRESENTATION DIllCISION CITED BY
CLAIMANT'S MEMORANDUM IS DISTINGUISHABLIll FROM THill CASB
BEFORE TIIIS COURT
Claimant cites "one" thirty-year old caoe, Linda Coal &
Suoplv Co. v. Tasa Coal ~, 416 Pa. 97, 204 A.2d 451 (1964), in
its memorandum.11 (Claimant Mem. at 3). Claimant's exclusive
reliance on the Linda decision, however, is an embellishment of
the facts not supported by Claimant's municipal claim. Cf. Leach
v. Houah, 352 Pa. Super. 213, 849, 507 A.2d 848, 851 (1986)
ci ting Linda.
(1) CLAIMANT'S MUNICIPAL CLAIM FAILS TO ALLIllGB THAT
OWNERS KNOWINGLY MADill FALSIll STATEMENTS TO CLAIMANT
11 In the Linda decIsion, Linda Coal and Supply Company sought
to recover losses incurred as a result of a contract it was
allegedly induced to enter as a result of fraudulent
misrepresentations by Tasa. Linda contracted with Tasa to
strip mine lands owned by Tasa. In the process of contract
negotiations, Tasa falsely preoented various records to
Linda, records which Tasa knew were false, and which were
made with the fraudulent purpose of inducing Linda to enter
into a contract with Tasa. Upon learning of the
misrepresentations by Tasa, Linda instituted an action of
trespass for fraud and deceit to recover the actual loss
which it suffered as a result of the fraudulent
misrepresentations made to it by Tasa.
5
"The basic prnrequiuitc of on action in deceit for
fraudulent misrepresentations ia that the deceiver shall
knowingly make a false /Itatement, intonding the actor to rely
upon it to his detriment." l,indn Coa.LJLS1WDly Co. v. Tasa Coal
~, 416 Pa. 97, 102, 204 A.2d 451, 454 (1964). No whore in
Claimant's municipal claim does it appear that Owners knew, or
even suspected, that any of their statements had been made with a
fraudulent purpose. Cf..tiL. Claimant's municipal claim fails to
even allege that Owners intended to induce Claimant to issue a
sewer connection permit baser'! on their misrepresentations. IsL..
(2) OWNERS' KNOWLEDGE OP THEIR ALLEGED FRAUD
MISREPRESENTATION IS NOT A COMPELLED INPERENCB
PROM THE PACTS PLED IN CLAIMANT'S MUNICIPAL CLAIM
Owners' knowledge of their alleged fraud cannot be
inferred from the facts pled in Claimant's municipal claim. It
would not be reasonable to assume that if Claimant was knowingly
armed with its right of action in deceit against. Owners--for
which full payment of the increased sewer connection fees would
have been allowed under Owners' sewer connection permit--that
Claimant would subsequently admit that it made an error in
issuing Owners' sewer pel"mit and an error when it 'mconditionally
accepted Owners' sewer connection fees. (Exh.blt "A" of Claimant
Mun. Claim). Letter from Hall to Owners of 1/26/1993. Cf. ~inda
Coal & Suoply Co. v. ~, 416 Pa. 97, 103, 204 A.2d
451, 454 (1964). Alternatively, it is reasonable to assume that
6
Claimant went to Owncrs--believing that it was bOllnd by its
issuance of Owners' BeWAr connection permit and its unconditional
acceptance of sewer connection payments from Owners for their
connect ion to Claimant's sewer system- - to try t.,) recoup
additional sewer connection fees in the hope that Owners would
simply agree to pay the increased fees. Cf. 1~ (holding that if
knowledge of scienter and intent have not been established, it
cannot he held as a matter of law that they existeo) .
2. NO ALLEGATIONS OP FRAUDUL~NT MISREPRESENTATION APPBAR
PROM TUB PACB OP CLAIMANT'S MUNICIPAL CLAIM
The one case cited in ClaiMant's memorandum, Linda Coal
& SUDDly Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964),
is instructive to the procedural issues surrounding Claimant's
inferred charge of fraudulent misrepresentation. Owners maintain
that no allegations of fraudulent misrepresentation appear from
the face of Claimant's municipal claim.12 It is well settled law
that Claimant's memorandum cannot supply facts missing from its
municipal claim. Cf. ~4ft, 416 Pa. at 102, 204 A.2d at 454
12 While Owners were unable to locate any cases of scire facias
sur municipal claims alleging fraudulent misrepresentation in
Pennsylvania, six c~ses were located outside the State:
Bernstein v~9rtland Sav. & Loan Ass~, 850 S.W.2d 694 (Tex.
App. Corpus Christi 1993); ~L~lter CorD~~ Rush, 279 Ala.
611, 189 So. 2d 129 (1966); ~vin v. Sin~, 227 Md. 47, 175
A.2d 423 (1961); Maqr.in~. Jac~~, 17 Ill. App. 2d 346, 150
N.E.2d 387 (3d Dist. 1958); ~erickson v. Nye, 110 Ohio St.
459, 2 ohio I,. Abs. 390, 144 N.E. 299 (1924); Bradley v.
Liqhtcap, 202 Ill. 154, 67 N.E. 45 (1903) rev'd, 195 U.S. 25,
49 L. Ed. 76, 24 S. Ct. 753 (1904).
7
(holding that a denwrrer cannot supply missing facts), "In
paRsing on a demurrer a co~rt cannot consider matters collateral
to the pleading oppooed but only such matters as arise out of the
statement of the claim itself." Iii..
B. PROCBDURAL ISSUBS PRESENTBD BY CLAIMANT I
Claimant first argues that Owners' filing of preliminary
objections is not a proper response to Claimant's municipal
claim. (Claimant Mem. at 2-3). Claimant then attacks Owners'
preliminary objections as being in the nature of a "speaking
demurrer. ,,13 (Clailllant Mem. at 3).
Owners contend, as a matter of law and rules of court, thatl
(1) municipal claims are pleadings to which preliminary
objections may be filed, (2) the Municipal Claims Act is not the
exclusive remedy for municipal claim disputes; (3) Owners'
preliminary objections include facts that appear from the face of
13 Claimant seeks to challenge Owners' right to recovery by
characterizing Owners' preliminary objections as a "speaking
demurrer," which cannot be sustained. Beyond Claimant's
blanket statement that Owners' preliminary objections present
new facts that do not appear on the face of Claimant's
municipal claim--Claimant: (1) fails to show which
preliminary objections did not limit themselves to the
allegations in its municipal claim; (2) fails to point out
any defects in Owners' preliminary objections; (3) fails to
state any factual propositions in Owners' preliminary
objections that do not appear in Claimant's municioal claim.
Claimant failed to allege, and it is impossible to infer, how
Owners' preliminary objections can be characterized as a
"speaking demurrer."
8
Claimant's municipal claim; (4) OWllcrs' pIocliminaloy objections
raise issues that can be determined from thc lacto of recordS (5)
Owners' preliminary objections state factual propositions that
appear in claimant's munIcipal claim.
1. MUNICIPAL CLAIMS ARE PLEADINGS TO WHI~H PRELIMINARY
OBJECTIONS MAY BE FILED UNDER THE RULES OP CIVIL
PROCEDURE
Claimant pre~ents a twofold argument opposing Owners'
right to file preliminary objections. First, Claimant argues
that "preliminary objections may only be filed in response to a
pleading." (Claimant Prelim. Obj. at ~ 2 and Claimant Mem. at
2). Second, Claimant argues that municipal claims are not
pleadings. (Claimant Prelim. Obj. at ~ 1). Claimant bases this
twofold argument on Pa.R.Civ.p. 1017 and 1028(a) without any
reference to Pennsylvania case law. (Claimant Mem. at 2-3).
Claimant's preliminary objection argument is so legally
deficient that Owners do not believe that even minimal legal
research was done before filing Claimant's preliminary
.objections. Owners maintain that Claimant is procedurally
confusedU an j unreasonably cant inuing to perpetuate the
14 By way of example of the confusion created by Claimant's
demand for increased sewer connection fees, rather than give
Owners the opportunity to contest Claimant's June 26, 1995
municipal claim, without any prior notice to Owners, Claimant
pursued a writ of scire facias on the lien four days after
filing its municipal claim.
9
to the Pa.R.Civ.P. 4001 (a) (1) for the pUI.poses of depositIons and
d i scove ry . " 16 Shap i 1'0 _.Y~!i~.ll.t<.moi.tJ.1illi.12, ! 5 9 Pa. Commw. 62, 97,
632 A.2d 994, 1001 (1993) (Craig, J. concurring), appeal denied
Center Townshio v. Shaoiro, 537 Pa. 635, 642 A.2d 488 (1994).
Thus, it is reasonable to infer that the Rules or Civil Procedure
apply to preli,ninary objections to a municipal clnim. Bqhrer v.
Rohrer, 345 Pa. Super. 469, 472, 498 A.2d 919, 920 (1985).
2. THB MUNICIPAL CLAIMS ACT IS NOT THB BXCLUSIVS REMBDY
FOR MUNICIPAL CLAIM DISPUTBS
Claimant argues that the procedures described in the
Municipal Claims Act must be followed if Owners dispute the
municipal claim against them. (Claimant Prelim. Obj. at 1 3 and
Claimant Mem. a~ 3). Pennsylvania courts have, however,
expressly rejected Claimant's argument.1'
16 In the chapter of the Rules of Civil Procedure on
"Depositions and Discovery," Pa.R.Civ.P. 4001(a) (1) provides
in part,
Th. rul.. of this chapter apply to any civil action or
proceeding at law or in equity brought in or appealed to
any court which is subject to these rules including
action. pur.uant to ... the Municipal. Claim. Aot ...."
(emphasis added) .
17 A steady line of cases beginning in the early 1940's and
continuing to the present, have permitted preliminary
objections to be filed against scire facias sur municipal
claims: PNC Ban~nt.'l A9s'n v. BalsaffiQ, 430 Pa. Super.
360, 634 A.2d 645, appeal denied 648 A.2d 790 (1994) I Tullv
~lina Co. v. Shenkin, 409 Pa. Super. 333, 597 A.2d 1230
(1991); ~...R!ti!.l Estate, Inc. v. Borouah of Wvomina, 117 Pa.
Commw. 260, 544 A.2d 1053 (1988). Rohrer....lL...JiQhuu;:, 345 Pa.
Super. 469, 498 A.2d 919 (1905); ~per v. KeiDer, 343 Pa.
Super. 256, 494 A.2d 454 (1985); Chartie~llev School
Dist. ~. Virainia~ansions Aoartments. Inc., 340 Pa. Super.
11
Owners maintain that if a full, complete and non-
statutox'y remedy at law exists agal.nst a municipal claim, said
remedy may be raised by preliminary object.ion. LeN Rlli!U.&l.t.at.!L.
Jnc. v. B9rouah of Wyoming, 117 Pa. Commw. 260, 266 n.3, 51\4 A.2d
1053, 1056 n.3 (1988); Chartiers Valley School Dist. v. Virqinia
Mansions Apartments. J.lK.., 340 Pa. Super. 285, 469 A.2d 1381
(1985). In this case before the Court, Owners challenge
Claimant's attempt to collect increased sewer colloction fees, as
a matter of settled law.1' (Owners Mem. supp. O~ners Prel. Obj.
at 5-12). Accordingly, Owners' proper response to claimant's
municipal claim was the filing of preliminary objections. See
Forks Twp. Mun. ~Auth. v. American Land. Inc., 6 Pa. Commw.
569, 571, 297 A.2d 185 (1972).
285, 489 A.2d 1381 (1985); Equitable Gas Co. v. Pittsburqh,
507 Pa. 53, 488 A.2d 270 (1985); Mancine v. Concord-Libertv
Sav. & Loan Ass.Q...., 299 Pa. Super. 260, 445 A.2d 744; I..esauro
v. Baird, 232 Pa. Super. 185, 335 A.2d 792 (~375); Forks Twp.
Mun. Sewer Auth. v. Amer~ Land. ~, 6 Pa. Commw. 569,
297 A.2d 185 (1972); Klevanskv v. Redevelopment Authoritv of
Readinq,4 Pa. Commw. 365, 287 A.2d 444 (1972); ~Jmetta v"
Recklitis. 214 P~. Super. 171, 251 A.2d 113 (1969);
~onwealth v. Atlantic & Gulf Coast Stevedores. Inc., 422
Pa. 442, 221 A.2d 128 (1966); Hickorv Townshio v. Brockwav,
201 Pa. Super. 260, 192 A.2d 231 (1963); ~etts v.
Alleqhenv County, 409 Pa. 300, 186 A.2d 249 (1962); .lmore v.
fhiladelohia, 179 Pa. Super. 535, 117 A.2d 765 (1955);
Detweiler v. School Diets., 376 Pa. 555, 104 A.2d 110 (1954);
Litmans v. O'Donnell. 173 Pa. super. 570, 98 A.2d 462 (1953);
~alth use .of WillQ'ii..JUghlands Co. v. Io!aryl~.n<i Cas.
~Q....., 369 Pa. 300, 85 A.2d 83 (1952); ~~_~Q1llLt;y Mortg. &
finance Co. v. Board of Comm'ra, 168 Pa. Super. 143, 77 A.2d
746 (1951); Quaker City Chocolate & Confectionery Co~
Warnock Bldq. Ass~, 347 Pa. 186, 32 A.2d 5 (1943); Xoun9 v.
Bradford County Tel. Co., 346 Pa. 90, 29 A.2d 533 (1943).
18 See supra note 4.
12
'-.?:"'"'
,
3. OWNERS' PRELIMINARY OBJECTIONS STATB FACTS AND PACTUAL
PROPOSITIONS APPEARING IN CLAIMANT'S MUNICIPAL CLAIM
Claimant objects to Owner~' prelimin~ry objections on
the basis of two genel'al i zed opin ions. f'i rst, Cia imant statell
that " 3-8, 10 and Exhibit A of Owners' preliminary objections,
introduce facts that do not appear from the face of Claimant's
municipal claim. (Claimant Prelim. Obj. at , 4). Second, and in
like manner, Claimant states that Owners' preliminary objections
contain factual propositions that cannot be ascertained from
Claimant's municipal claim. (Claimant Prelim. Obj. at , 6 and
Claimant Mem. at 3). Claimant cites the case of LJnda Coal &
Supolv Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964), in
its memorandum to justify its objections. (Claimant Mem. at 3).
Claimant, however, offers no analysis or interpretation of Linda
to support its nbjections.
Given Claimant's total and complete failure to argue or
to justify its objections by any type of definitive statements--
Owners simply contend that " 3-4, 6-8, 10(a)19 and Exhibit A of.
their preliminary objections, contain facts that appear from the
face of or can be ascertained from Claimant's municipal claim.
To support Owners' position that its preliminary objections
comply with the Rules of civil Procedure, each and every fact and
19 Owners concede to Claimant's objections that the specifi,c
factual allegations in " 5 and 10(b) of Owners' preliminary
objection do not appear on the face of Claimant's municipal
claim.
13
factual proposition in Owners' proliminilry objections have been
cross-referenced to the atatements in claimant's municipal
claim.20 Based on the legal principles found in the Linda
decision that was first cited by Claimant, as well as subsequent
decisions upholding Linda,21 Ownera maintain that a simple review
of the assertions in Claimant's municipal claim by comparison
with the assertions in Owners' preliminary objections, clearly
and unequivocally invalidates Claimant's sweeping conformity
argument.
(1) OWNERS' PRELIMINARY OBJECTION AT , 3
Claimant stated that it issued a sewer permit to
Owners on November 23, 1993 (Claimant Mun. Claim at , <1). This
20 See supra parts II.B. (3) (1-9) and accompanying discussion.
21 Vartan v. Commonwealth, 151 Pa. Commw. 86, 92, 616 A.2d 160,
163 (1992) appeal denied, (1993); David v. Commonwea..lth, 143
Pa. Commw. 161, 169, 598 A.2d 642, 647 (1991); Orner v.
Mallick, 515 Pa. 132, 137, 527 A.2d 521, 524 (1987), appeal
denied 652 A.2d 839 (1994); ~1l!L v. Southeastern
Pennsvlvania Transp. Authori.k.l, 105 Pa. Commw. 115, 118, 523
A.2d 424, 426 (1987); Leach v. Houqh, 352 Pa. Super. 213,
849, 507 A.2d 848, 851 (1986); Binswgnqer v. Levy, 311 Pa.
Super. 41, 43, 457 A.2d 103, 104 (1983); Hall v. Goodman Co.,
310 Pa. super. 465, 477, 456 A.2d 1029, 1035 (1983); ~
Santis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770,
772, (1982); ~hite v. Concord_M~Lt_.,_trLs. Co., 296 Pa. Super.
171, 175 n.3, 442 A.2d 713, 715 n.3 (1982) aff'd, 500 Pa.
103, 454 A.2d 982; National Re!,;ovQ.ry Syst'lLns v. Frebraro, 28'1
Pa. Super. 442, 445, 430 A.2d 686, 687 (1981); Mgt~ener v.
tlttsburqh, 36 Pa. Commw. 69, '13, 387 A.2d 954, 956 (1978);
Brennan v. Smith, 6 Pa. Commw. 342, 345, 299 A.2d 683, 685
(1972); ghillldelphia use ofJ..9.D.Y,Pp. Paul & Son v. Magnolia
Cemetery CQ~, 220 Pa. Super. 424, 426, 289 A.2d 191, 193
(1972) .
14
is the same assertion made by Owners.22
Owners inferred that the permit was valid as
issued by Claimant. Claimant's municipal claim does not assert
that Owners' sewer permit was executed with improper
informalities nor does it assert that the permit was capable of
being rightfully overthrown or set aside. Clearly, a sewer
permit, which has been issued with all the formalities required
by law, can be said to be valid. The validity of Owners' sewer
permit is thus a compelled inference from the facts averred in
Claimant's municipal claim. See Nd~Dal Recovery Systems v.
Frebraro, 287 Pa. Super. 442, 445, 430 A.2d 686, 688 (1981)
citing Linda Coal & Supply Co. v. Tasa Coal Co., 41C Pa. 97, 204
A.2d 451 (1964).
Claimant also stated that Owners' sewer connection
fees were "based upon appropriate resolutions lawfully adopted."
(Claimant Mun. Claim at 1 3). Accepting Claimant's statement
that its assessment levy was lawful, ~, Owners simply inferred
that said resolutions must have been warranted and authorized
pursuant to the Pennsylvania Sewage Facilities Act and
regulations promulgated thereto, otherwise they would not be
lawful as asserted by Claimant.
22 "Accepting as true Claimant's allegations, a valid sewer
permit was issued to Owners on November 23, 1993,
pursuant to the Pennsylvania Sewage Facilities Act and
regulations promulgated thereto." (Owners Prelim. Obj.
at 1 3) .
15
(a) OWNERS' PREL1MINARY OBJECTION AT , 4
Cl,lin1illlt utatlld that Ownot"B p.lld Two Thousand
Three Hundred and FifLy Dollars ($2,350) for their sewer
connoction permit (Claimant Mun. Claim at " 5-6). This is the
same assertion made by OWlllHS. 23
Owners noted that flaid payment was made to obtain
their sewer permit-oan inference fairly deducible from Claimant's
assertions that the amount paid by Owners consisted of a tapping,
inspection and lateral fees. 1!;l. See Philadelphia use of Tony De
Paul & Son v. Maqnol11'L-Cemet~rv Co., 220 Pa. Super. 424, 426, 289
A.2d 191, 193 (1972) citing ilida Coal & Supplv Co. v. T..!sa Coal
~, 416 Pa. 97, 204 A.2d 451 (1964).
f
I
I
I.
(3) OWNERS' PRELIMINARY OBJECTION AT , 6
Claimant stated that an "an inspection of the
sewer connection" was made on December 9, 1993, (Claimant MUn.
Claim at , 7). This is the same assertion made by Owners.24
23 "Upon Claimant's issuance of a valid sewer permit for
connecting Claimant's sewer system onto the property
owned by Owners, Owners paid Claimant a total fee of Two
Thousand Three Hundred and Fifty Dollars ($2,350)."
(Owners Prelim. Obj. at , 4).
24 "Claimant's sewage enforcement officer performed the
requisite final site inspection on December 9, 1993, and
approved Owner's connection to Claimant's sewer system, a
copy of which is attached as Exhibit A." (Owners Prelim.
Obj. at , 6).
16
Ownurs merely noted that said inspection was made
by Claimant's sewage enforcement officer. This is a reasonable
presumption arising out of Claimant's assertion that said sewer
connection inspection was conducted by the Authority.35 CE.
l,inda Coal & Supply Co..J(. Tasa Coal CSh, 416 Pa. 97, 102, 204
A.2d 451, 454 (1964) (matters must arise out of the statements of
the claim itself).
(4) OWNERS' PRELIMINARY OBJECTION AT , 7
Claimant stated that it "issued a sewer permit on
November 23, 1993" (Claimant Mun. Claim at , 4), that the
requisite inspection was made on Pecember 9, 1993 (Claimant Mun.
Claim at , 7), and that on January 26, 1994, Owners were informed
that they owed Claimant an additional Four Thousand Five Hundred
and Fifty Dollars ($4,550). (Claimant Mun. Claim at , 7). This
is the same assertions made by Owners.26
"In ruling on a demurrer, the court may conaider
such matters as arise out of the complaint itself." IUllswanqer
25 See supra part II.B. (3) (9) and accompanying discussion on the
approval of Owner's connection to Claimant's eewer system.
26 "Accepting as true Claimant's allegations, approximately
sixty days (60) after issuance of a valid sewer permit
and approximately forty-seven (47) days after Claimant's
sewage enforcement officer inspected and approved Owner's
connection to claimant's sewer system, Claimant demanded
that Owners pay additional sewer connection fees."
(Owners Prelim. Obj. at , 7).
17
v. [,evy, 311 Pa. Super. 41, 43, 457 A.2d 103, 104 (1983) citing
I.inda Coal L5J,l[>ply CQ-J-Y>-'fi!J:liLQQ"I..Li&...., 416 Pa. 97, 102, 204
A.2d 451, 454 (1964). In this prelJ.rninary objection, Owners
simply reiterated the assertions in Claimant's municipal claim.
Owners stated the approximate number of days that had expired
between each of Claimant's official acts, regarding their
connection to Claimant's sewer system, following Claimant's
issuance of their sewer connection permit.
(5) OWNERS' PRELIMINARY OBJECTION AT 1 8(a)
Claimant stated that it issued a sewer permit to
Owners on November 23, 1993 (Claimant Mun. Claim at , 4). This
is the same factual assertion repeated by Owners.27 ct. Vartan
v. Commonweal~, 151 Pa. Commw. 86, 92, 616 A.2d 160, 163 (1992)
appeal denied, (1993) citing Linda Coal & Supplv Co. v. Tasa Coal
QQ., 416 Pa. 97, 204 A.2d 451 (1964).
(6) OWNERS' PRELIMINARY OBJECTION AT 1 8(b)
Claimant stated that Owners' sewer connection was
inspected on December 9, 1993, (Claimant Mun. Claim at 1 7) .
This is the same assertion made by Owners.28
27 "A valid sewer permit was issued to Owners on November
23, 1993 (Exhibit A) . " (Owners Prelim. Obj. at 1 8 (a) ) .
28
"Claimant's sewage enforcement
approved Owner's connection to
December 9, 1993 (Exhibit A)."
officer inspected and
Claimant's sewer system on
(Owners Prelim. Obj. at
18
since at the time that Claimant approved Owners' connection to
Claimant's sewer system, Claimant had still not increased Owners'
sewer connection foes. Cf. QDQ~~, 515 Pa. 132, 137,
527 A.2d 521, 524 (1987), appeal denied 652 A.2d 839 (1994)
citing L.illiist...J;oal & S\lpolv Co. v. Tasa C9al Co., 416 Pa. 97, 204
A.2d 451 (1964).
('8) EXHIBIT "A" OP OWNERS' PRELIMINARY OBJECTIONS
Claimant objects to the annexation of Owners'
sewer permit to Owners' preliminary objections. (Claimant Mun.
Claim at " 4-5). No reference to any rule of court or
supporting case law is offered by Claimant to support its
objection.
Owners maintain, as a matter of settled law, that
the annexation of their sewer permit to their preliminary
objections was proper. See Hall v. Goodman Co., 310 Pa. Super.
465, 456 A.2d 1029, 1035 (1983) citing Linda coal & Suoply Co. v.
Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964). Since Claimant
based its municipal claIm on Owners' failure to pay an increase
in their sewer connection fees,31 Owners contend that they may
attach the sewer permit to their preliminary objections and that
31 Claimant is seeking to increase Owners' sewer connection fees
subseq11ent to the time of Owners' application and payment for
their sewer permit. Owners contend that, as a matter of law,
such an increase is not permitted (Owners Mem. Supp. Owrlers
Prel. Obj. 4-12).
20
th~ permit may be referred to for purposes of deciding OWners'
demurrer. ~
Tne Hall case clearly supports Owners'
proposition. In Hall, defendant attached an agreement to its
demurrer which plaintiff had neglected to attach to its
complaint. In dictum, the Pennsylvania Superior Court addressed
the issue of whether defendant's submission of the agreement was
proper. The court ruled that defendant's annexation of the
agreement was proper and valid. "[W]hen the plaintiff baseD his
cause of action on a written agreement, the defendant may attach
the agreement to the Pl'eliminary objections, and it may be
referred to for purposes of deciding a demurrer." Hall v.
Goodman Co., 310 Pa. Super. 465, 477, n.9, 456 A.2d 1029, 1035,
n.9 (1983) citing ~atchell v. Insurance Placement Facilitv of
Pennsvlvani'l, 241 Pa. Super. 287, 292, 361 A.2d 375, 377 (1976).
Accordingly, in this case before the Court, since Claimant based
its municipal claim on sewer connection fees arising from Owners'
sewer permit, Owners' permit may be annexed to Owners'
preliminary objections.
4. THE STATUTORY LAW CITED BY CLAIMANT IS NOT APPROPRIATI
POR DETERMINING WHETHER PRELIMINARY OBJECTION MAY BB
PILED AGAINST MUNICIPAL CLAIMS
Claimant cites 53 P.S. SS 710132 and 718733 as
32 See in[z'a part I I. B. 2. explaining that while municipal claims
are brought pursuant to the Municipal Claims Act, the Act's
21
justification for its position that Ownors' preliminary
objections should be diumiused. (Claimant Prel. Obj. at r 3
and Claimant Mem. at 3). Section 1101 of the Mun\cipal Claims
Act simply defines a l1lunicip.:ll claim whereas .JJ '7187 defines what
constitutes evidence in a municipal claim.
Based on'the plain meaning of the statutes cited by
Claimant, Owners contend that .JJ.JJ 7101 and 7187 are not
appropriate for addressing the issue of whether preliminary
objections may be filed against municipal claims. Claimant makes
no effort to discuss the statutes it cited and fails to analyze
their rationale in terms of its opposition to Owners' prelinlinary
objections. Absent any arguments by Claimant contrary to the
plain meaning of ~S 7101 and 7187, Owners cannot infer how the
statutes can preclude preliminary objections.34 See Shapiro v.
~~, 159 Pa. Commw. 82, 632 A.2d 994 (1993), appeal
denied ~ter Townshi~ v. ShaoirQ, 537 Pa. 635, 642 A.2d 488
(1994); Rohrer v. Rohrer, 345 Pa. Super. 469, 498 A.2d 919
(1985) .
statutory remedies are not the exclusive remedies for
municipal claim disputes.
33 See infra part I I. B. 1. contending that municipal claims are
pleadings to which preliminary objections may be filed and
that the courts in Pennsylvania have permitted preliminary
objections to be fJ.1ed against scire faciae. sur municipal
claims since the early 1940's.
34 See infra part II.B.1. (1) explaining scire facias under the
Municipal Claims Act.
22
III. CONCLUSION
OWNERS' PRELIMINARY OBJECTION SHOULD BE SUSTAINED
AAD CLAIMAN't.'..i._nllltlM1.HAB:L-.9>>.!1J!)S;'I1QtL.PU.HI1J.u~
In conclusion, Claimant's preliminary objections should be
dismissed. First, as matter of settled law and the unambiguous
rules of court, the Municipal Claims Act is subject to the Rules
of civil Procedure.35 Owners had every legal right to file their
preliminary objections against Cla~mant's scire facias sur
municipal claim.36 Claimant's objection to Owners filing of
their preliminary objections is without merit.
Second, a review of " 3-8 and 10 of Owners' preliminary
objections clearly shows that each objection included facts and
factual propositions that appeared or could be readily inferred
from the face of Claimant's municipal claim or the facts of
record.3' Owners' preliminary objections were in substantial
compl iance with the Rules of Civil Procedure3. while Claimant's
blanket conformity claim is unconvincing and materially lacking
35 Shapiro v. Center Townshio, 159 Pa. Commw. 82, 632 A.2d 994
(1993), appeal denied Center v. Sh~, 537 Pa. 635, 642
A.2d 488 (1994); RQhrer v. Rohrer, 345 Pa. Super. 469, 498
A.2d 919 (1985); LCN Real Estate. Inc. v. Borouqh of Wvoming,
117 Pa. Commw. 260, 544 A.2d 1053 (1988)j ~hartiers Va~
School Dist. v. ViJ9inia Mansions Apartments. _~_, 340 Pa.
Super. 285, 489 A.2d 1381 (1985); EQrks Two. MUDu-Sewer Auth.
v. American {,and. Inc., 6 Pa. Commw. 569, 297 A. ~d 185
(1972) .
36 See infra part II.B.1-2.
37 See infra part II.B.3.
38 See infra note 19.
23
. .
in substance. Claimant's objections to the factual presentation
of Qwners' preliminal'y obj ect ions were pointless and unnecessary
filings of cour.t.3'
Third, since Claimant's municipal claim does not contain the
elements of fraudulent misrepresentation, Claimant's municipal
claim should be dismissed.40 As a matter of settled law, absent
any allegations of fraudulent misrepresentation by Owners, the
sewer connection fee to be lawfully imposed by Claimant is the
Two Thousand Two Hundred Dollar ($2,200) fee which was assessed
on the date of application and payment of Owners' sewer permit.41
(Owners Mem. Supp. Owners Prel. Obj. at 5-'7)42. Claimant's
municipal claim for increased sewer connection fees in the amount
of Four Thousand Five Hundred and Fifty Dollars ($4,550) is
39 Vartan v. Commonwealth, 151 Pa. Commw. 86, 616 A.2d 160
(1992), appeal denied (1993); David v. Common~~~~h, 143 Pa.
Commw. 161, 598 A.2d 642 (1991); Binswj!Ilg!ilL.Y.o.-.l.&.YY, 311 Pa.
Super. 41, 457 A.2d 103 (1983); ~ional Recoverv Systems v.
Frebraro, 287 Pa. Super. 442, 430 A.2d 686 (1981);
Philadelphia use of Tony De Paul Ii< Son v. MaqnoliLCemetery
~, 220 Pa. Super. 424, 289 A.2d 191 (1972); QJ.:ner v.
Mallick, 515 Pa. 132, 527 A.2d 521 (1987), appeal denied 652
A.2d 839 (1994); Hall v. GoodlJli!.ll Co., 310 Pa. Super. 465, 456
A.2d 1029 (1983); Linda Coal & Supply Co. v. ~a Coal Co.,
416 Pa. ')7, 204 A.2d 451 (1964).
40 See i'lfra part II .A.
41 Owners paid, without objection, an increased fee of One
Hundred and Fifty Dollars ($150) after obtaining their sewer
connection permit. (Claimant Mun. Claim at , 6).
42 Owners acknowledge that their preliminary objections failed
to dispute the additional lateral connection fee of One
Hundred and Fifty Dollars ($150), which was immediately paid
in full upon Claimant's demand subsequent to issuance of
their sewer connection permit.
24
LAW O",,'CI:S
SNELBAKER
a
BIUNNEMAN
III. AMUMENT
A. CLAIMANT IS NOT PRECLUDED FROM COLLECTION OF SEWER
PERMIT FEES WHICH WERE IN EFFECT AT THE TIME OF
ASSESSMENT.
There is nothing of record to suggest that the Authority
increased its schedule of fees at any time relative to this
claim. As stated in the Municipal Claim at issue, the fee for a
two-unit dwelling is being sought because the December 9, 1994
inspection revealed that the property in question is a two-unit
dwelling rather than a one unit as previously believed. The case
of ~~rd of commissioners v. Toll Bros., 147 Pa. Commw. 298, 607
A.2d 824 (1992) cited by Owners has no application to the claim
~ iudice because the rate schedule here has not been increased.
Owners' argument relating to increased fees must be rejected.
B. OWNERS' ARGUMENT REGARDING ALLEGED FAILURE TO EXERCISE
DUE DILIGENCE IS WITHOUT MERIT.
Owners' argument regarding the alleged failure to exercise
due diligence is not a proper preliminary objection. A reference
to an alleged lack of due diligence would be proper as a closing
argument after a hearing on the facts, but has no place as a
demurrer. A demurrer asks whether, ".
upon the facts
averred, it shows with certainty that the law will not uphold the
pleading." Goodrich-Amram 2d S 1017(b):27. Owners' argument of
lack of due diligence does not and cannot show that law will not
uphold the Authority's Municipal Claim.
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The epplLc,,"t I1qr,,('s to adh"rn. to All rlll"n ,,1I,l t"'JIJl"tloIlS pertAining to
the sewer "'ystl'm RS Adopt('d by SII.vor r.prlllq 'I'owllnhlp nll<l tho silver Sprillg
Township lIuthority.
lifter one yell r fo Ilow Ing the <111 t.o of COIlllc>ct I on to the Sew....r system, the
Mlthorlty shall mak" Rn nnillYRls of nctIJ'11. <llnchnrge of 1I0nresidenHI11
Establlflhments, And ndjust thn Tnpplng Fae prevlollsly collectnd, either upward
or dr)wnwnrd, bRsed upon the hlghl'nt netllnl 'l"l1rt:nr-l1nnIJI11 dlschnrge durlng thnt
period. If the meas\lI:ed flow Is greater 1'.111111 the permitted <l18cll1lrge, the
lIuthorl ty shAll ndj U!;!t the 1'ilpp Ing F.,l' upwnrd hnsnd upon tho highest l1ctun I
quarter-annuAl dischl1rgo. No foo Adjustment ",hnll he mnde or p.1id After the
first yeRr's anl11ysls AS requir..." hereinabove. In no evont shnll tho Tapping
Fee ba less than $2,750.00. /.
II PPLIClltlT _ .;---:~~.,~ --'..!~:~.{l~~-ctjt7.
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EXISTING IMPROVED RESIDEIITIIIL PROPERTY ( 2,000) ...... ~.
IMPROVED PROPERTY
R",sidentl111 ($2,71)0).........................._
t1onnr>"lcl'mt in 1
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Permit Issuedl
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(SF.rIlRIITE PI\VIIF:II'r) ...............
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.
SILVER SPRING TOWNSHIP I
AUTHORITY, I
Claimant I
I
V. I
I
JOHN M. POTTEIGER and I
LYNETTE F. POTTEIGER, I
OWners I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENN&YLVANIA
95-3403 MUNICIPAL LIEN DOCKET
IN REI PRELIMINARY OBJECTIONS OF BOTH PARTIES
BEFORE SHBELY. P.J. AND OtERo J.
AND NOW,
f-d ORDE}\
, l(1
this ~ day of January, 1996, the preliminary
objection of the Silve~ Spring Township Authority styled as a
motion to strike the preliminary objections of John M. and
Lynette F. Potteiger iu GRANTED, and the potteigers directed to
proceed under the Municipal Claims Act.
By the Court,
{ LL~ E ~///
Harold E. Sheely, P.J.
Philip H. Spare, Esquire
For the Claimant
C<.u..........".,l"t .1 ~s/'1lto.
\J .Iit I'.
Donna K. Hammaker, Esquire
For the Owners
ldd
SILVER SPRING TOWNSHIP I
AUTHORITY, I
Claimant I
I
V. I
I
JOHN M. POTTEIGER and I
LYNETTE F. POTTEIGER, I
Owners I
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
95-3403 MUNICIPAL LIEN DOCKET
IN REI PRELIMINARY OBJECTIONS OF BOTH PARTIES
BEFORE SHEF,1X. P.J. AND OLER, J.
OPINION AND ORDER OF COURT
On June 26, 1995, the Silver Spring Township Authority ("the
Authority") filed a municipal claim against John M. and Lynette
F. Potteiger ("the potteigers") in the amount of $4,550 for sewer
permit fees, interest and costs for a property located at 6600
Carliale Pike in Silver Spring Township, Cumberland County. In
the municipal claim, the Authority asserts that it issued a sewer
permit for the above address on November 23, 1993, believing that
it was a single family dwelling. For that permit, the potteigers
paid a fee of $2200. The potteigere latex paid an additional
$150 lateral fee. In early December, 1993, the Authority
inspected the sew~r connection and learned that the potteigers'
property was actually a two family dwelling. Based on a duly
adopted Silver Spring Township ordinance, the Authority billed
the potteigers for $4,550, the proper cost of a sewer permit for
a two family dwelling.
Thereafter, the potteigers and the Authority began
negotiations, and entered into an agreement whereby the
potteigers would convert the property to a single family dwelling
and would be relieved of the responsibility to pay the $4550.
NO. 95-3403 MUNICIPAL LIEN DOCKET
When the agreement was not followed, and the potteigers refused
to pay on demand, the Authority filed the instant munioipal
olaim.
On July 14, 1995, the potteigers filed preliminary
objections to the munioipal claim. On July 26, 1995, the
Authority filed preliminary objectionB to the preliminary
objeotions and listed the case for argument. We have heard
argument and the matter is now ripe for decision.
We will first address the preliminary objections of the
Authority to the preliminary objections of the potteigers. The
Authority's initial preliminary objection is styled as a motion
to strike for failure to conform to law or rule of court. The
Authority contends that a municipal claim is not a pleading, and
that preliminary objections may only be filed in response to a
pleading. The Authority assert that the proper response to the
filing of a municipal claim is to follow the procedure described
in the Municipal Claims Act, 53 P.S. S7101 et ~ In response,
the potteigers argue that a preliminary is proper because, four
days after the municipal claim was filed, the Authority filed a
scire facias. The potteigers cite a footnote in ths case of
Sha9iro v. Center Towns~ Butler Countv, 159 Pa.Commw. 82, 632
A.2d 994 (1993), to support their position.
In ShaDiro, defendant Center Township filed municipal claims
for sewer assessments which became liens against the subject
property. The landowners did not pay the assessments and the
2
NO. 95-3403 MUNICIPAL LIEN DOCKET
Township filed a praecipe for writs of scire facias sur municipal
claim in order to prosecute the liens to judgment. The
landowners filed affidavite of defense and sought to strike the
liens.
The specific iesue in Shaoiro was not the issue before UB
today, namely whether a preliminary objection is a proper
response to a municipal claim. However, there is language in the
opinion instructive to the issus in this case. The potteigers
cite to a footnote, which in turn cites 18 Standard Pa. Practice
2d 5102110, for the proposition that a writ of scire facias
serves the dual purpose of a summons and complaint. Sh~piro at
88, n.3, 632 A.2d at 997, n.3. The Potteigers would have us
extend this statement to make the rules of preliminary objections
apply to municipal claims. In the absence of dirsct authority,
that is a leap we are not willing to make.
The potteigers have not cited, nor has our research
uncovered, any authority on point. In our opinion, the reason
for the dearth of authority on this issue is clearl preliminary
objections are not the proper response to a municipal claim. The
prop~r procedure is described quite clearly in Shaoiro. In the
case of an assessment such as the one involved in this casel
...[i]f the owner does not dispute the claim
and assessment, the owner simply pays and
removes the lien. If the owner does dispute
the claim, the Act provides no mechanism fur
a direct "appeal". Instead, to contest the
claim of amount of assessment and to force
the issue to an original hearing, the owner
may file and serve notice on the claimant
3