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Home My WebLink About95-03534 ~ .1 , , . I I! , , ,. .Ii ,I " il I 'I " I , " II , " I ,)1,' ,I, I .1 d , ," '1' , , I , , " '1 , , , 'I ,,/ " , " .. , I , '-1' , , , ., A. .... j C;; I " , , , " I I " , I. I , " II t:', " , " I." , ,I " , I, , , , , " , , I , I \ ., I , , ., I, I, " ,I., , I '1 " " , , I " " [I,; ,I I;' " , 1:1 , I I I , 11.1 , .. I, " I I" , , I , , " '-I " ", " " I , 1111 I ',', i , , I I II' I I 1 " I , , 'I' , " , " ,', t', , .. I " " I I, " I , 'jl , ~ J ':~ .~.. SILVER SPRING TOWNSHIP AUTHORITY, Claimant-Plaintiff I I I I I I JOHN M. POTTEIGER, LYNE'l'TE I F. POTTEIGER, Owners- I Defendantsl JEAN GUTHOEHRLF.IN, I DAVID HACKFORD, JAMES BETZ, f JODI BETZ, I Defendants f v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUN'ry, PENNSYLVANIA NO. 95-3534 CIVIL TERM CIVIL ACTrON - LAW MUNICIPAL LIEN PLAINTIFF' S .llliill IN SUPPOR'r OF MOTIO: :OR J.lm.!iJlEN'r ON WRIT OF SCIRE FACIAS DU 0 LACK OF SUFFmID'i:r...hFFIDJ\il'LQF DEFEWll: I. FACTUAL aND PROCE~URAL BACKGROUND On June 26, 1995 the Silver Spring Township Authority (hereinafter "Authority") filed a Municipal Claim against John M. Potteiger and r"ynette F. Potteiger, (hereinafter "Owners") ao owners of a certain two-unit apartment dwelling known and numbered as 6600 Carlisle Pike, Mechanicsburg (Silver Spring Township), Pennsylvania (hereinafter "Premises"). A copy of said Municipal Claim is attached to the underlying Motion as "Exhibit A". The Municipal Claim is in the amount of $4,550.00 plus interest and costs for sewer permit fees based upon appropriate resolutions lawfully adopted by the Authority. On or about June 30, 1995, in an eff.ort to collect the LAW ol"prcu SNltl.BAK!rt, BRlENNEMAN 6: 6PAR~ amounts due under the Municipal Claim, the Authority initiated a Writ of Scire Facias action docketed to No. 95-3534 civil Term in this Court. On July 11, 1995 and July 13, 1995 the Owners and I....w O"'ICU BNr:LdAKf:R. BRENNr:MAN 8l SPARt:: several tenants found to bo in possession of the premises in question were served with the Writ of scire Facias by deputios of the cumberland county Sheriff's department. Defendants Jean Guthoehrlein, David Hackford, James Betz and Jodi Betz were added to the Writ. of Scire Facias as required by the Municipal Claims Act, 53 r.s. S 71B6. On or about July 14, 1995, owners filed Preliminary Objections to the Municipal Claim in the action docketed to No. 95-3403 Municipal Lien Docket. on July 26, 1995 the Authority filed Claimant's Preliminary Objections to Owners' Preliminary Objections. Following the filing of briefs and oral argument, the several Preliminary Objections in the Municipal Claim action were resolved in favor of the Authority by Order of Court dated January 24, 1996 which directed the Owners to proceed under th~ Municipal Claims Act, Following the service of an Important Notice dated February 14, 1996, the owners filed two documents, an Affidavit of Defense and an Answer, in the matter docketed to No. 95-3534. The Owners' Answer admits that they are owners of the tract of land inclUding improvements described as 6600 Carlisle pike, Mechanicsbur.g, Pennsylvania. (Answer, Paragraph 1) Owners admit that "on or about December 9, 1993, an inspection of the sewer connection by the Authority revealed that the Premises was a two (2) unit dwelling and not a single-family dwelling." (Answer, -2- L/l.W OI'I'ICU 6NEL""l<!R. BRENNEMAN a SPARE B. Whether the Authority is entitled to judgment as a matter of law. (suggested Answert Yes) I I I . ARGUMEN'l' A. THERE ARE NO GENUINE ISSUES OF MATIRIAL FAOT. By statute, municipal claims are prima facie evidence of the facts averred therein. Municipal claims are conclusive evidence of the facts averred that are not specifically denied in the affidavit of defense. P.S. S 7187, st. Pat Practice 2d S 106t54. The Authority'S municipal claim filed June 2U, 1995 is conclusive evidence of the fact averred therein that are not specifically denied in the affidavit of defense. The material facts in this case are very simple and have been admitted by the Owner.s. The claim was filed against Owners and their property with improvements located at 6600 carlisle pike, Mechanicsburg, Pennsylvania. (Municipal Claim, paragraph 1, admitted in Answer) Sewer permit fees for a two-unit apartment dwelling are $5,700.00 plus $1,200.00 for two reimbursement components for a total of $6,900.00. (Municipal Claim, paragraph 8 and Exhibit A attached thereto and incorporated by reference; admitted in Answer) Owners paid the Authority a total of $2,350.00 for Bewer permit fees on the subject premises. (Municipal Claim, paragraphs 5 and 6; admitted in Answer) By letter dated January 26, 1994, a copy of which is attached to the Municipal Claim as Exhibit "A" and incorporated -4- by reforenoe, the Authority informed Owners that an additional amount of $4,550.00 was due to the Authority bocduso the Premises is a two (2) unit dwelling. (MUnicipal claim, paragraph 81 admitted in Answer) The Owners have failed and refused to pay the amount of $4,550.00 to the Authority. (Municipal Claim, paragraph 111 admitted in Answer) The material facts in this case have been admitted by the Owners. They own the Premises. The Premises in question is a two (2) unit apartment dwelling. Owners paid the $2,350.00 for sewer permit fees, which is the price of a single family dwelling, rather than $6,900.00 due and owing for a two (2) unit apartment dwelling. There are no material facts at issue for a jury to decide. Owners have averred that they did not make any misrepresentations to the Authority regarding whether the Premises was a single family dwelling or a two unit apartment dWelling. However, even if the Owners could convince a jury that they did not make such a misrepresentation to the Authority, the outcome of the case would remain the same. Even if the finder of fact would determine that there was a LAW O"IC;:U SNlELDAKER, aRItNNlMAN e.: SPARE misunderstanding or error on the part of the Authority, the resuit is the same. The fact remains that the Owners still have a two (2) unit apartment dwelling and have paid the sewer permit fees for a single family dwelling. The material facts admitted -5- I.AW ('"Ieu SNELBAI<lR, SRI!NNEMAN a SPAAl!: as of r&oord indioato that no genuine issue of material faot remainB to be decided. B. THE AUTHORITY IS ENTITLED TO JUDGMENT AS A NATTER or LAW. The Authority iB entitled to judgment as a matter of law beoauBe the Affidavit of DefenBe filed by OwnerB railB to Bet forth a BUfficient defpnae. By statuto, a judgment is proper where the affidavit of defense is insuffioient. 53 P.S. S 7271. An affidavit of defense must be certain and definite1 a vague and unoertain affidavit is insufficient to prevent judgment. General Municln.!l.LAY.th9.ill.Y-of Borollqh of Harvey/s_Lako v. .:iJJ.lllui, 392 Pa. super. 397, 572 A.2d 1291 (1990), In the case at bar, the Affidavit of Defenso is vague and uncertain1 therefore, the Authority is entitled to judgment as a matter of law. Owners aver the vague conclusion that the Authority violated 35 P.S. S 750.7/ the sewage Facilities Act. (Affidavit of Defense, paragraph 1) ownerB fail to explain what portion of S 750.7 was violated. Section 750.7 covers more than five pages of fine print in Purdon/s and contains more than 50 paragraphs and subparagraphs, yet Owners did not bother to aver which portion of the section was allegedly violated. None of the facts set forth indicate a violation of the Act. The averment is vague and uncertain and must be rejected. Owners aver the vague conclusion that the Authority failed to state grounds for a lien under the Municipal Claims and Tax -6- ~AW O"ICU SN[l.B~KI". BRI.NNI:MA,N 81 SPARE Liens Act, li3 P.S. SH01. (Aftidllvit of DehnBo, pal:'agraph 2) soction 7101 cont~ins definitions of terms used in the Act. The term "municipal claim" is defined to include lithe clllim adsing out of, or resulting from, a tax assessed, service supplied, WOl:'k done, or improvement authorized and undertaken, by a municipality. . . for lay ing of. sewers, bl:'anch sewers, 01:' . . sewer connectiona therein. . .." 53 P.S. S '/101. certainly, the definition of "municipal claim" is broad enough to cover the improvements to the sewage system paid for by tho various permit fees at issue here. The Owners' vague and uncertain conclusions do not set forth a suf~icient defense. Ownel:'s aver the vague conclusion that the Authority failed to state a claim under the Pennsylvania Municipalities (sic) Authorities Act, 53 P.S. S 301. (Affidavit of Defense, paragraph 3) None of tne factual matters averred bears any rational relationship to a purported violation of the Municipalities Authorities Act. on December 9, 1993, the Authority'S inspection revealed the Owners' premises was a two-unit apartment dwelling rather than a single family dwelling as previously believed. (Municipal Claim, paragraph 7, admitted in Answer) The Authority sent a letter dated January 26, 1994 formally notifying Owners of the additional amount due. The letter begins: liAS discussed at he December 15, 1993 meeting. . .," indicating that the letter as not the first time the owners were informed of the additional mount due. (Municipal Claim, paragraph s, admitted in Answer) he Authority promptly notified Owners of the additional fees -7- LAW O""CU 6NJ::LDAKI!R. BRIENN[MAN a SPARE owed at the O~oempe~ 1~, 1993 meeting just days afto~ tho inspeotion ~evenled a two (2) unit apa~tment dwelling. The faots of tho caee ehow no violation of the Pennsylvania Municipality Authorities Act of 1946. 53 P.B. SS 301-351. In pa~agraph 4 of the Affidavit of Defense, Owners conolude, without foundation, that tho Autho~ity violated va~ious aots inoluding the Municipality Autho~ities Act, the Munioipal Claims Aot and the Sewage Facilities Act. Fi~st, owne~s allege a violation of tho Municipality Authorities Act, 53 P.S. S 30G(b) (t) (sic). Section 53. P.S. S 30G B (t) is a detailed enumeration of fees that a municipal authority may cha~g~ when p~ope~ty owne~s connect to a seWe~ or wate~ system. Authorized fees include seve~al foe components: connection fee, customer facilities fee, tapping fee. All actions by the Autho~ity complied with the statute. The Autho~ity did not increase its sewe~ connection fees du~ing the time period in question. Rather, the approp~iate fee was assessed fo~ a two (2) unit dwelling. Second, Owne~s ave~ the bald conclusion that the Authority violated 53 P.S. S 7440 or the Municipal Claims Act. (Affidavit of Defense, paragraph 4(d)1 Section 7440 covers nearly four ages in Purdon's and Owners have failed to specify what portion f the Act was allegedly violated. No portion of the Act was iolated, and the Affidavit must pe rejected as being vague and eneral. -8- LAW O.....ICU SNELIIAKIR. BRENNEMAN a SPARE Owners also aver B violation oe tho sewage Facilities Act, 35 P.S. S 750.7. Owners oo~oludo, without any logal o~ tactual basis, that the Authority failed "to unieormly implement its current approved sewage facilities plan update revision." (Affidavit ot Defense, paragraph 4(0)). This is a general oonclusion totally lacking in specificity and totally lacking in substance. Thet'e is nothing of reoord that could possibly support such an allegation. The final averment in the Affidavit of Pefense deals with sdrvice of the writ of scire facias (paragraph 5). Without explaining any particulars, owners av~r the notice to plead on the ~rit incorrectly named additional party defendants. This averment totally ignores tho statutory requirement found in 53 P.s. S 7186. Section 7186 provides, in pertinent part: The sheriff to whom the scire facias is given for sorvice shall add to the writ, as parties defendant, all persons, other than those named therein, who may be found in possession of the property described. . . . 53 P.S. S 7186. The Sheriff acted properly according to the statute by adding the names of tenants found in possession of the Premises to the Writ. Owners' claims to the contrary must be rejected. Finally, Owners aver generally that a notice to Owners was not properly addressed. (Affidavit of Defense, paragraph 5(b) Owners' unspecific allegation of an improper address fails o provide a defense to this action. -9~ " X. XNTRODUCTION X..u,. I A. lUll THIRI ANY alWINI XSSUIS or MA'rBRIAL 'ACT? suggested Answert rBS One genuine issue of material fact for a jury t~ decide is whether owners knowingly made any false statements to Authority to induce Authority to issue Ownel'S their sewer connection permit? If so, a :jury must then determine I Whether Authority's municipal claill\ asserts that Owners knowingly made any false statements to AuthoritYI Whether Authority's municipal claim asserts that Owners made any fraudulent statements to Authority to induce Authority to issue Owners their sewer connection permit, Whether Authority's municipal claim contains the elements of fraudulent misrepresentation? B. WlITHIR AUTHORITY IS BNTITLBD TO JUDGMB~ AS A MATTBR 0' Wf.1 Suggested Answer: NO ~ I , 1 I I As a matter of law, a determination must be made ~s to whether Authority can increase its sewer connection fees with respect to a sewer permit that has been previously approved and that has already been totally and fully paid by Owners, before Authority is entitled to judgment. Owners maintain that as a matter of settled law, ~bsent any allegations of fraudulent , I " 2 misrepresentation, the sewer connection fee to be lawfully imposed by Authority is the $2,200 fee which was assessed on the date of application and payment of Owners' sewer p~rmit, Authority'S municipal claim for increased sewer connection fees in the amount of $4,550 is contrary to set~led case law and the Municipal Claims Act, Accordingly, Authority is not entitled to judgment as a matter of law, '.at. Of Thi. C...I The facts of this case, as recited in the municipal olaim of Authority, are as follows I 1. Owners own the property located at 6600 Carlisle Pike, Mechanicsburg in Silver Spring Township, Cumberland County, Pennsylvania. 2. Authority issued a valid sewer permit on November 23, 1993 for connecting Authority's sewer system onto the property owned by Owners. 3. Owner.s fully paid Authority a total fee of $2,200 at the time of Owners' application f.or hook-up to Authority's sewer system on November 23, 1993. 4. By telephone call of December 3, 1993, Authority admitted that an error had been made in issuance of Owners' sewer permit on November 23, 1993 and demanded an additional fee 3 and the Municipal Claims Act, prohibits Authority from increasing Owners' sewer connection fees subsequent to the time that it issued Owners their sewer connection permit and following Authority'a acceptance of. Owners' payment for their permit.1 The one exception to this prohibition is if Owners knowingly made false statements to Authority to induce it to issue a sewer connection permit. Owners maintain that Authority'S municipal clainl fails to assert that Owners knowingly made any false statements to Authority. Similarly, Owners sssert that Authority'S municipal claim fails to assert that Owners made any fraudulent statements to Authority to induce Authority to issue them their sewer connection permit. In sum, Owners contend that Authority'S municipal claim does not contain the elements of fraudulent misrepresentation. It is for a jury to decide whether Owners' assertions ara correct or incorrect. (1) AUTHORITY'S MUNICIPAL CLAIM PAILS TO ALLBGR THAT OWHIRI KNOWINGLY MADR PALSR STATBMBNTS TO AUTHORITY 1 Hornstein Enters. v. Townshio of Lynn, 160 Commw. 72, 634 A.2d 704 (1993), reh'g and appeal denied (1994), Board of Comm'rs v. Toll Bros., 147 Pa. Commw. 298, 607 A.2d 824 (1992), reh'g and appeal denied (1993), E.g., Raum v. Board of Suoervisors, 29 Pa. Commw. 9, 370 A.2d 777 (1977), E.g., Price v. Scranton, 321 Pa. 504, 506, 184 A. 253 (1936), E.g. Nolan v. Readina, 253 Pa. 367, 84 A. 390 (1912). , , 5 "The basic prerequisite of an action in deceit for fraudulent misrepresentations is that the deceiver shall knowingly make a false statement, intending the actor to rely upon it to his detriment." Linda Coal ~ Supply Co. v. Tasa Coal ~, 416 Pa. 97, 102, 204 A.2d 451, 454 (1964). No where in Authority's municipal claim does it appear that Owners knew, or even suspected, that any of their statements had been made with a fraudulent purpose. ct. ~ Authority's municipal claim fails to even allege that Owners intended to induce Authority to issue a sewer connection permit based on their misrepresentations. ~ (2) OWNBRS' KNOWLIDGI or THIIR ALLBGBD rRAUD MISRIPRISINTATION IS NOT A COKPILLID INPBRINCI PROM Tal PACTS PLID IN AUTHORITY'S MUNICIPAL CLAIM Owners' knowledge of their alleged fraud cannot be inferred from the facts pled in Authority's municipal claim. It would not be reasonable to assume that if Authority 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 Authority would subsequently admit that it made an error in issuing Owners' sewer permit. Nor would Authority admit that it made an error when it unconditionally accepted Owners' sewer connection fees. Cf. Linda Coal ~ Suuuly Co. v. Tasa Coal Co., 416 Pa. 97, 103, 204 A.2d 451, 454 (19S4). 6 Alternatively, it is r"asonable to assume that Authority went to Owners believing that it was bound by its issuance of. Own~rs' sewer connection p~rmit and its unconditional acceptance of sewer connection payments from Owner~ for their. conneotion to Authority's sewer system -- to try to recoup additional sewer connection fees in the hope that Owners would simply agree to pay the increased fees. ct. ~ (holding that if knowledge of scienter and intent have not been established, it cannot he held as a matter of law that they existed) . B. AUTHORITY T8 NOT ENTITLED TO JUDGMENT AS A MATTER or LAW i I , Owners argue that Authority is not entitled to Judgment, as a matter of law, because I (1) The Pennsylvania Municipality Authority Act, 53 P.S. Ii 301 (1995) ("Municipality Authority Act"), and the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. Ii 7101 (1995) ("municipal claims and Tax Liens Act"), preclude Authority from raising sewer connection fees which were previously assessed and paid, (2) Authority'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 Authority's sewer system is a breach of contract which renders Authority liable for any increased sewer connection feesl (3) a lack of due diligence may be found in Authority's assessment and collection of supposedly inadequate sewer connection feesl (4) by substantially raising , " 7 the sewer connection fees on Owners' property -- an increase of $4,550 -- Authority has aiversely affscted Owners' property interests in violation of the Municipality Authority Act and the Pennsylvania Sewage Facilities Act, 35 P.S. S 7501 (1995) ("Sewage Facilities Act") I (5) by seeking a municipal claim against Owners for Authority's error in its assessment and collection of sewer connection fees and Authority's error in approving Owners' hook-up to Authority's sewer system, Authority has violated the municipal claims And Tax Liens Act. (1) UNDIR THB MUNICIPALITY AUTHORITY ACT, THE SBWBR CONNlCTION PIIS TO BE IMPOSBD BY AUTHORITY ARB THOSS WHICH WERB ASSBSSID ON THB DATB or APPLICATION AND PAYMlNT or OWNERS I SIWBR PIRMIT Section 306(B) (t) of the Municipality Authority Act, whioh was in effect when Owners obtained the sewer permit in question, provided that sewer connection f.ees shall be based upon the "fee schedllle 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 Authority 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. 298, 607 A.2d 824 (1992), reh'g and ~ppeal denied (1993), is instructive to this case. In Toll, the township issued building permits t.O Toll Brothers at the time their development 8 plans were approved requir.ing tho payment ot! a $500 sewer oonnection fee for each subdivision lot, After the township's approval of the development pl~n6 and after the township's issuance of the sewer connection t!ees at the said fee of $500 per subdivision lot, the township increased the sewer conneotion fees for each lot to $4,000, Toll Brothers paid the $4,000 fees under protest and filed a complaint against the township. The Court of Common Pleas of Lehigh County ordered the township to ref.und to Toll Brothers the excess fees paid under protest. 'rhe Commonwealth Court subsequently affirmed the trial court's order and held that the Municipality Authority Act precluded the township from raising sewer connection fees which were previously approved. While Toll did not specifically address a fee increase under !i 306 (B) (t) of the Municipality Authority 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 HQrnstein Enters. v. Townshio of Lvnn, 160 Commw. 72, 634 A.2d 704 (1993), reh'g and appeal denied (1994). Accordingly, in this case, the sewer connection fees to be imposed by Authority are those which were assessed and collected on the date of application and payment of Owners' sewer permit. Authority cannot subsequently increase Owners' sewer connection fees from $2,350 to $6,900. 9 (3) AUTHORITY'S 'AILUal TO IXIRCISI DUI DILIGINC. IN THI ASSISSK.NT AND COLL.CTION 0' SBWlR CONNlCTION 'liS IS A BRIACH 0' CONTRACT WHICH RIND.RS AUTHORITY LIABLI As a matter of law, when a municipality constructs a sew&r system, the municipality is bound to exercise due diligenco in the collection of sewer connection fees, and failur~ 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, Authority did not exercise due diligence in the acceptance of payment nor was due diligence exercised when Authority 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 and payment was accepted, Authority accepted a fee of $2,200. Of that amount, $200 was devoted to payment of an inspection fee and $2,000 for tapping fees. Authority later admitted that it had erred in its levy and demanded an additional $150 for lateral construction costs. Subsequently, when Authority approved Owners' hook-up to its sewer system, the total fees that Owners had paid was $2,350. Approximately two months after issuance of a valid sewer permit and after Authority'S final approval of Owners' hook-up to Authority'S sewer system, Authority acknowledged that an error had been made in Owners' sewer permit. Clearly, by Authority'S own admission of its , I '~ '\1 ;~ 10 error, Authority ha$ not shown the due diligence that it was bound to exeroise. Accordingly, in this case, it would be unconsoionable to permit Authority to sit idly by for a period of approximately two months -- neglecting to do its duty in the collection of its sewer connection fees and f.ailing to exercise due diligence in its approval of hook-ups to Authority'S sewer system __ then to abruptly demand that OWnern pay an increased aSSeSSlndnt of $4,550 in order to amend its evident neglect and failings. It is simply unprincipled for Authority to suddenly say to Owners that they have no redress except to await the pleasure of Authority, who in its own good time, decided to substantially increase Owners' sewer connection fees. E.g., Bee fr~. 321 Pa. at 507, 184 A. at 254. Under such circumstances, it is only proper that Authority be held to a high degre~ of diligence in performing its obligation with regard to its collection of sewer connection fees, Clearly, in this case, Authority'S conduct does not measure up to the required standard of due diligence and Authority must be held liable for breach of its obligation to do so. Authority, and Authority alone, is responsible for its uncontradicted errQrs and clear lack of due diligence. 11 , " ()) A LACK or DUI DILIOINCI NAY BB POUND IN AUTHORITY'S LIVYINO, COLLICTION AND APPROVAL or OWHIRS' SIWIR CONNIICTION PIllS In this case now before the Court, Authority has olearly stated by l~tter of January 26, 1994, a copy of whioh was attaohed to Authority's municipal claim, that its assessment and collection of Owners' sewor connection fees was inadequate.2 Accordingly, Authority alone must be hald liable for breach cf its obligation to exercise due diligence. Authority is solely responsible for levying its sewer connection fees. (4) BY SUBSTANTIALLY INCRIlASINO THE SBWBR CONNBCTION rlIS, AUTHORITY HAS SO APPECTIlD THE MAGNlTUDB 0' THI INCRIASID PBBS AS TO ADVBRSBLY A'PICT OWNBRS' PROPBRTY INTIRISTS IN VIOLATION 0' THI PBNNSYLVANIA MUNICIPALITY AUTHORITY ACT3 Owners maintain that the increase in their sewer connection fees adversely affects their property interests.. It 2 "... 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." Letter from Authority to Owners as of 1/26/94. 3 Sect ion 53 P. S. ~ 306 (8) (h) (1995) of the Municipality Authority Act mandates that sewer connection fee rates be r.eaaonable. See West v. Hamoton Townshio Sanitary ..&lthority, 1995 Pa, Commw. LEXIS 309 (June 25, 1995). 4 In this case, the magnitude of the fee increase adversely affects Owners' property interesto. Raising Owners' sewer fee by $4,550, plus $2,350 already paid, amounts to a total sewer connection fee of $6,900. 12 seems apparent that at some point, tl~ magnitude of a fee increase by a municipality can adversely affect property interests as to render continued ownership of said property meaningless! and the fee rates unreasonable. Pennsylvania law clearly suppor.ts Owners' proposition of adverse affect, beginning with the case of Raum v. Board of SUDervisors, 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 increased the subdivision's fee schedules. The Commonwealth Court held that owners whose property had been 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 changing or amending fee schedules which adversely affected the property rights of owners. (5) BY SBIKING A MUNICIPAL CLAIM AGAINST OWNERS POR AUTHORITY'S BRROR IN THB COLLICTION AND APPROVAL OP SIWBR CONNECTION PIBS, AUTHORITY HAS VIOLATBD THB MUNICIPAL CLAIMS AND TAX LIINS ACT Section 53 P.S. 7440 (1995) of the municipal claims and Tax Liens Act, which was in effect when Owners obtained the sewer permit in question, provides that sewer permit fees must be 5 It is a matter of public record that the total assessed value of Owners' property is only $5,940. 13 PIIM:C ll'~: FOil 1.1 B'l'l NO eMlE FOil AlIGUMEN'r ~-._-......_... ---... .---.---.......-....-..-..... .--.....-..------.--.- "-"-'--- (Hullt bu typewritten mid t1ubnitted in duplicate) TO THE PROTHONO'I'AlIY Of' CUHUEllLANll coUNTY 1 I'leasll Hat t)le within "\litter for tM nut N:gIJllIInt 0JUrt. ________~_________________..________________________~__.__"___M____________~__._._______ CAPTION OF CASE (entire caption ntUBt be stated in full) SlIm:11 Sl'llLNG 'ruWNSllll' AUTIIUll1TY ( P 14intiff) VB. JUHN M. l'uTTl,IGlill. I.YNET'I'E I'. POTTEIGEl!, UWNERS-llEFENllANTS, JEAN GUTllUEHl!LEIN, llAVlU IIACKFoRlJ, JAMES n~:TZ IInd JOIJ I n~;TZ ( Oefendant) B No. ~2i- CivU TERM 19t 1. State matter to be argued (i.e.. plaintiff's IOOtion for new trial. deft'.ndI!Int's demurrer to complaint, etc.): Pluintiff'. Motion For ,Judlllll~nt un Writ of Scire Fncin. lJue to Luck of Sufficient Affidnvlt of IJdenlle 2. Identify COUOIlel who will argue case I (a) for plaintiff: I\ddreSs: Philip 11. Spure SULl 1 hnker & Brr,mnemon. P.C. 44 W, Mnln Street MechnnlcBhurM. PA 17055 (b) for defen::lant: I\ddreSs: llonnn K, UIIllunnker 1/,03 Me 1 rOBe Avenue Chester, l'A 19013-5702 3. I will notify all parties in writing within t'ooIO dlIys that this case has been lis ted for 8I'"glJrerl 1. 4 . ArtjlJnellt Court Date: Fehrullry 5. 1997 118ted: NOVEMBER;). 7 1996 _12~ AttonlElY for ,11 ver Spr1nll 'l'llwllMhlp Authority I " ','f I ;'t I '.\ ":,tll ",'f\' ;'1\ ;'11 " i"l, Ii I' {~~ "0 ..-., " , , I,n II .,11, '. , i '~ ''-1 11./. 'I; Hi, ", 'i'i ~ ' .; ._1 j"- 'f , '(h r-:' "! I "'l "' f"i Ii) " 'lrn .. j :!,! :Jl ',1) " .. .... " " , ,I . v. No. 95-J534 civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3403 MLD TERM 1995 CIVIL ACTION - LAW MUNICIPAL LIEN SILVER SPRING TOWNSHIP AUTHORITY, Caimant JOHN M. POTTEIGER and LYNETTE F. POTTIEGER, Defendants WRIT OF SCIRE FACIAS The commonwealth of Pennsylvania to John M. Potteiger and Lynette F. Potteiger, Greetingl WHEREAS the Silver Spring Township Authority, on the 26th day of June, 1995 filed its claim in our Court of Common Pleas of Cumberland county; at No. 95-3403, MLD Term 1995, for the sum of $4,550.00, with interest from the 26th day of June, 1995 for sewer permit fees, against the following property situate in the Township of Silver spring, Cumberland County, Pennsylvania: ALL THAT CERTAIN tract of land including improvements thereon known and numbered as 6600 Carlisle Pike, which is owned or reputed to be owned by you. AND WHEREAS, We have been given to understand that said claim is still due and unpaid, and remains a lien against the said property; NOW, you are hereby notified to file your affidavit of defenee to said claim, if defense you have thereto, in the offioe of the Prothonotary of our said Court, within fifteen Page 1 of 2 , , " , , V,t"r, ~rl t,'~t/t,rl, ,I /f"('" \ /. IIIl nz PI , I r~ ," , (" I" 'J'jl ,.I~'.J /!. 01, " 2~1: .J ~,U I J . 10"', -, ,,'1 "1 , I, . I , . '1 "Hi (,I "I I, ~. 'I' I~ ! 'I I \.;, "\ I" 1 ~l. " . , ;,'1 , 'I, I , '~ It ! , ';, ! , ...t '. " I I , ~.. , , No, """""""""", Term, 19".,., """""""""""""""".",.", VI. . , ~ ~ , . . , . . . , " , , , H , , , , , . , " II H , . , , , , " , , PRAECIPE Flied""""" ".", ",', """ 19,,1,,' """"".. ,.".". ,."."" .., Atty. """",,""""""""""'1"""'" ~ ~ "' ~. L._ " ~ ~ ~, " '-'-' '::-..~ !'1,1 c::> ~ I'" ~ .. , ' r;s~ ~ ..' "l \:S .... ~ ., lD .. . ~ " \. r ..". ,"' , , .' , ::a:: r ,. . '-iJ' " "., ffi ~ " ,~ 9J~ -J ~ ~ ~ I I I I SILVER SPRING I AUTHORITY, claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MLD 'rERM 1995 NO. 9 S - .J '1(."~ TOWNSHIP vs. JOHN M. POTTEIGER and LYNETTE F. POTTEIGER, Owners MUNICIPAL LIEN DOCKET MUNICIPAL CLAIM AND NOW, comes the claimant, Silver spring Township Authority, by the chairman of the Board of the silver Spring Township Authority, who files the following claim: 1. The claim is filed against John M. Potteiger and Lynette F. Potteiger, owners, ("hereinafter "owners") and all that certain tract of land inclUding improvements thereon, owned by them and described as follows: 6600 Carlisle Pike Mechanicsburg, PA 17055 Ta~ property Map No.: 18-1332 Parcel No.: 011 Assessment Distr.ict: 38 (hereinafter "Premises"). u.w O"ICII SNIL.AK... . IftlNNIMAN 2. The claim is in the amount of $4/550.00 due and owing for sewer permit fees and for which sum/ with i~terest and costs/ a lien is claimed against the premises in accordance with the Municipalities Authorities Act of 1945/ May 2, 1945/ P.L. 382/ 53 P.S. S 301, ~ ~'/ as amended and the Municipal Claims and Tax Liens Act, May 16/ 1923, P.L. 207, 53 P.S. S 7101/ At iAQ., as I amended. 3. The tees claimed are based upon appropriate resolutions lawtully adopted by Silver spring Township Authority (hereinatter "Authority") . 4. The Authority understood that the Premises was a single- tamily dwelling and issued a sewer permit on November 23, 1993 based upon that understanding. 5. on or about November 23, 1993, Owners paid to the Authority a tapping fee ot $2,000.00 and an inspection tee ot $200.00 based upon Owners' representation that the Premises was an existing single-family dwelling. 6. Soon atter November 23, 1993, Owners were contacted by the Authority and informed that they had not been charged the lateral fee ot $150.00. Owners promptly paid the $150.00 as requested. 7. On or about December 9, 1993, an inspection ot the sewer connection by the Authority revealed that the premises was a two (2) unit dwelling and not a single-tamily dwelling. UW 0'''<<:11 INILIAKlft . 1l~INNIM'N B. By letter of January 26, 1994, a copy of Which is attached hereto as Exhibit "A" and incorporatod herein by reference, the Authority informed Owners that an additional amount of $4,550.00 was due to the Authority because the Premises is a two (2) unit dwelling. -2- . , "r ,:,./. ,ti , , "'I '~~., I!:. \. , ~IL YER SPRING TOWNSHIP AUTHORITY . \:.. , ' " ":' ,.". Pta~ N;, po~t.~q.~, " 'Y All diaPUI..d at th. D,g.lIll.~ lll, ~911:.J 1..Umr af th. Authority th.~a wa. In .r;af ~.d. on you; ,.w.r. p.rait f.., Co~ 6600 c.~lill. '~ke, a~nQ' ~,~. If' a IP,~'nt. ~n thi. hqu.. you .hould have b..n ch.~q'd f6,80Q,00 in.t.ad Qt $2,3110,QO, Tha br.akdown i. a. tQnOWI' . '. . , . $11,500.00 200.00 $5,700.00 , 'J " ... " , " e7anua;y 26, ~lUi4 . f'" , .7cmn pgt;tailJ'~ 70 silv'r c;own D~iv. "'ohln~o.bufq, fA 170115 :I tIPp!nlJ' fl" . 'a,7110,00 ..en 1 in1pagtlon C., . 030Q,00 'Ioh . Tot.:t. Du' Cor: aonn.otio., ~.. A_aunt Alr.ady'paid I. _I A44itionll ~qUnt Du. p:!.u. R.imbur....nt coapon.nt a ooapantntl '$600,00 ..Qh 'fOTAL DUB " , , , ,t t,l' , .' . " , " :' .. " " 112.380.DO .. $3,3110.00 II' ill.300.00 " $4, !SilO. 00 TWQ ..parata ch.ck., on. tor $3,350.00 and on. tor $1,200.00 will b, n"d'd. xt you have any qu.stions, pl.... t.el tree to contact ... Sinc.r.:t.y, Ja... B. Hall A..ist, Cod. ~ntQ;o.m'nt . , 6475 C~rll5lc PI~c t Mcchanlcaburs, PA 17055 . (717) 766.0178. (717) 766.1696 fAX r:::CIIDIT 1\ ~ .. IN THB COURT or COMMON PuBAS or CUNBBRuAND COUNTY, PINNSYLVANIA DONNA K. HAMMAKER, ESQ. Attorney for Ownenl-Defendantll Attorney 1.0. U 43194 1403 Melroae Avenue Chester, Pennsylvania 19013-5702 Telephoner 610-872-7882 n I' ~ j tql , , "'-., t ' 0"1. 1'-' ) " , " \ , , ! '1 , r') , ] ~. , , , ) '!"'. :\ :':.: !i I n) I'" " ! ",I I ,", . vs. I""' . Mid Term :1.995 No. 95-3534 CIVIL ACTION - LAW Municipal Lien Silver Spring Township Authority Claimant-Plaintiff John M. and Lynette F. Potteiger Owner-Dafendants OWNIR-DI'BNDANTS JOHN M. AND uYNETTB r. POTTBIGER'S AFPIDAVIT or DErENSE AGAINST CuAIMANT-puAINTIrr SIuVER SPRING TOWNSHIP AUTHORITY'S MUNICIPAu CuAIM Owner-Defendants, John M. and Lynette F. Potteiger ("Owller- Defendants"), by their attorney, DONNA K. HAMMAKER, ESQ., hereby affirm that they have a defense, in whole, against the municipal claim by Silver Spring Township Authority (" Claimant -Plaintiff"). In defense of Owner-Defendants' position, the following grounds are averredr 1. Claimant-Plaintiff violated the Pennsylvania Sewage Facilities 1 i .. Act, 35 Jil.S. <Ai '150,7 (1995) ("Sewage /;',lciUtloll Act") by failing to properly di~poae of owner-Defendants' completed aewer permit appJ,iaal:ion within the time l.illlita pre/3cl'ibed by law, (a) A valid sewer permit was issued to Owner-Defendants on or about November 23, 1993, purau8nt to the Sewage Facilities Act and regulations promulgated thereto, a copy of which io attached as Exhibit A. (b) Upon Claimant - Plaintif f' s issuance of a valid sewer permit for connecting Claimant-Plaintiff's sewer system onto the property owned by owner-Defendants, Owner-Defendants paid Claimant-Plaintiff a total fee of Two Thousand Three Hundred and Fifty Dollars ($2,350), (e) In reliance upon Claimant-Plaintiff's issuance of a valid sewer permit, Buyers paid a contractor One Thousand and Fifty-Five Dollars ($1,055) for a lateral connection to Claimant-Plaintiff's sewer system. (d) Claimant-Plaintiff's sewage enforcement officer performed the requisite final site inspection on or about December 9, 1993, and approved Owner's connection to Claimant- Plaintiff's sewer system. (e) Approximately sixty days after isauance of the November 23, 1993 sewer permit--and by official letter of January 26, 2 , .. 1994__Claimant-PlaintiCf admitted that an error had bean made regar.ding owner-Defendant9' llleWfll' pEJr.llIit fees and demanded that owner-Defendants pay an additional fee of Four Thousand rive Hundred and Fifty Dollars ($4,550), 2, Claimant-Plaintiff failed to properly state grounds for a lien against owner-Defendants' real property under the Pennsylvania Municipal Claims and Tax Liena Act, 53 p,S, ~ 7101 (1995) ("Municipal Claims Act" I , (a) A valid sewer permit was issued to Owner-Defendants on or about November 23, 1993. (b) Claimant-plaintiff's sewage enforcement officer inspected and approved Owner's connection to Claimant-plaintiff's sewer system on or about December 9, 1993, ~. Claimant-Plaintiff failed to properly state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. @ 301 (:\.995) ("Municipal Authorities Act"), (a) Claimant-plaintiff unconditionally accepted Two Thousand Three Hundred and Fifty Dollars ($2,350) as the total sewer service fee obligation that was owing and legally due on or about December 9, 1993. (b) Claimant-Plaintiff has accepted and continues to accept I 3 , ... ,~ -'- '. !I.~ , , ('l ,n '"1 I.n " " , "'l I ,I .,'J ' " 1';"'1 1'1 i ,I , . , 1,.1 . i, r"') / I:' (I', "~ ~. ! ;'f ~.. ." , . -" "-r J, ,'1 '\I " "', ., .. I. - .'). ,..I, ~ k." I' " , , .1 I' " SNIUIAJo:I.I( 6\ 1.\1(1"'''11 MAl" ^ l'fI' It I ~"Il '11"'1 "'III" ,It...,.. 'II M"'IINIY~ ^' "^W ,M \k'."'1 ~V.III 101'1111 M~ql^NI(~llIIIU" I'[NNWI Vi\NIi\ 1/1 I',', ~lnl^,'O c 'Nn.^~U' ~llnl .., .~INNIM^N l'fIILli' tl "'^~I II/ ,../11',,1/' 'I II nox .11" I ^,_~IMIII II'" "'.);1-/681 June 4, 1996 VIA 'rELEF/tX v~ f)M' o)r' I? \~ Authority, Claimant v. Pt, Henry F. coyne, Esquire 3901 Market street Camp Hill, PA 17011-422'7 ReI silver Spring Township Potteiger, et al. No. 95-3534 civil Aotion - Law Dear Mr. coyne I Please noto this firm's represontation of Silver spring Township Authority in thia mattor. I send this letter to you in your capacity as Chairman of the "oard of Arbitrators in this matter which has a hearing sohoduled for Wednesday, June 5, 1996 at 2100 P.M. at the Seoond Ploor Hearing Room, Old Cumberland County courthouse, Carlisle, Pe"nsylvania. Due to the tragic death of a sllvllr spring Township Police Offioer over the past weekond, several of my witnesses for Wednesday'S hearing are unable to appear because of their involvement with memorial oerviceR for the police officer. Earlier today, I had the opportunity to discuss a continuance with the Potteigers' attornoy, Ponna Hnmmaker, and she indicated that she had no problem with having tomorrow's hearing continued. Pleu~o conaidor this lotter n roqu6Bt for a continuance of tomorrow'a hearing which I roquest be rescheduled in the near future at a time whioh is convenient to everyone involved. Thank you for your oonsideration of this request. Very truly yours, Wj);JIf?2~ Philip H. spare PHB/U CCI Donna Hammaker, Esquire John Freilino, Silver spring Township Authority i, -'., I, .N~ ~~' '" )' I ';1 'ji; ',', II ,it, : 'I i I " ()~ , . ,i " '"I: ,~ r,V~ ~," ~ ,'" ~JL.I ;q"'~-(.. /, '" ~/L"-, ?'.. ~~,~ ,~ .;11 ';It\ " Ii "~I' ,I , 'I ';)i' , , I" , 1 J , I , , I 'i I. , ,l I ',II' ! , , II " , I ,', , ,t! 'I , , illd Id,/\III 'll I 'I I I I I , f, , ., i'l , II I " , , IiI, i!1 I " 'Ii , I !', , , , I" I "I"r~~~ . .~--/ "'Y"' if.4->>";/ /~7 - " ',', " " I! d Ii ii,l; I: , " \ " , , / jl , , I, " , '. , , , , I , I , h 'I , , I , )! I , " "1 , I ii' , , 'I' " , , I I , , Illi, " I I, I, II' Ii "~'I I,. Ii' ,1'1 I I, " 'j J 1. ,,1 ! ., II! I f' I i' If I 'II . 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I [,1' , , q. ,j I 1 , 'llll/ II 1 .' \ , II' >.jl , ~ I, loI".JI rill' 11/11-.111:: h' , i ~ ,1 " 1,,1"1,,1 ;11 II ,t " . I" ,II,' ii' , 1 I , ,I I , , , 1\'1 .. i "i' t, , I , ,I ,i'.'l'l ," , Ii ,j' 11'1' i:,r;~~ )1.11 \,'1 Ii) I,h', I,'I{,I -,I\,lf;j.) 1'ljil,I:' Ill' i; 'I ,_< .1' ~/~ , ' " "~'/ b ~ Jj~4'!:7 r - ' , y ".' 'III '11,1 qj' " , ~' 'I" ,1"11 I I .H~ , I ,r'ii Cf';i /l '. L)u1~ o,~,~.~' /I. \I. II,' " I, '1 " '" .".-..-.~ , v. No. 95-3534 civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3403 MLD TERM 1995 CIVIL ACTION - LAW MUNICIPAL LIEN SILVER SPRING TOWNSHIP AUTHORITY, calmant JOHN M. POTTEIGER and LYNETTE F. POTTIEGER, Defendants \tlULPF ,Jl.c.t~c.aa The Oommonwealth of Pennsylvania to John M. Potteiger and Lynette F. Potteiger, Greetingl WHEREAS the Silver Spring Township Authority, on the 26th day of June, 1995 filed its claim in our court of Common Pleas of Cumberland county; at No. 95-3403, MLD Term 1995, for the sum of $4,550.00, with interest from the 26th day of June, 1995 for sewer permit fees, against the following property situate in the Township of silver spring, Cumberland county, Pennsylvania I ALl. THAT CERTAIN tract of land inclUding improvements theraon known and numbered as 6600 car~isle Pike, which is owned or reputed to be owned by you. AND WHEREAS, We have been given to understand that said claim is still due and unpaid, and remains a lien against the sa id 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 P~19C 1 of 2 I I I i I I I I I I , I , .' " i " ., , , I, , ,I )},:-i.,.. 1.~\~II~t-I),( r .J I / T ' ',../ t I"~- V!h-t ~',~I VLL' ~'~.'IY I u ,d l,CLIVtIt t' J. (.\, I,klll ) ) ,\) 't ,) LLI~,...I 'l~~JL ~ ~ ~)"//I''fI''I' It. 'I" flit"" t lJAm In The Court of Cornmon ~leas of l/',', Cumbarland COllnty, ?ennsyl',enia 'i" . ~ \' "",) ''I (I, .,...{, ~o,' , 19 Mor.,y /111 /1 )IJ~/;~ ',1,1 . 1; '.j .:; I) 'It .....j We do eolemaly swear (or affirm) that we will slIpport, obey and def~nd tha Constitution of tha United States and the Cvnstitutioa of this Common- '4..lth and that we will discharia tha dutie~ of ollr OffiC~'~: Hd~:tY, )1<- , I' ...;J, . ((/. . , / ) k frchaj.~n I --L.. ,,~~. ~r'<~d - I~. ! ,,-; , III h, ... 1/ { I -' I h , I" , , , , ,. I , AWARD "'''e, tha lmdardgnad arbitrators, having bun duly appointed and sworn (or affirmad), maka tha following award I (Notal If damase. for delay are awarded, they shall be saperataly atatad.) , t'll /" ..~" ' t ;' fA L let;{ (\ ".f " 1 IJ, ... t '~ A'/, ~I.I" wi .....flwli~::', (.j"~'to< 1~(.Ul 1/ ~'L 'I. ",,{"i(" 1~ll.llJ Lf.lll"JT cf".rel." ~ ~,. " r "& ' ( . ' · L ~ j,UICC1'':; (I ~ld {(t.,oll, { (lt1wl(1 - . Arbitrator, dissents, (Insert name if appl1cable. ) Date of aearing: 1 ,',1 11(./I/\~ 'U JU-J...l_~ l \', i ;(~j I L( ~ Ch.-i-rSJl Date of Award: LLt jJ-etfL-! '/(, :~7' .--' -. ~~(~' - -~--' .', (", r!" /\. ,..~'t"/I':.. -' ./ ,'/f.. / '/ ~OTIC! OF ENTRY OF AWARD .tA. (j, Now, the ~S day of if"~';f , 19.:!L. at ;,::..u., tl.,:1.. the above award wes antered upon the docket and notice thareof given by ~il to the partiee or thei~ attorneys. ( l.L!:...u ') Arbitrators' compenaation to be paid upon appeal: $ p< ,J("Vi --- ~.' /' 1" , '(\~l'l'-H'" ( ,-_,,-~._I:./C.i"'~ J Prothonotary ~\" ,- "\.')' _..,', ~'I., l, "1 ('.. u- -' . ,LIt l.. () Oeput:! By: , I , . J' , t,I.. II 'J} ~ P 1,/,) , "1/': L'~I ," Ci I '." "I t , ,-' " :~- 'I ~ ;'f' d ',11 (f' I\) -" (,.;'1 "~ to., ~:" '-J \l<\ ) ~ '", J< 0 r.r:t I ~ ~..'. 'j ....... Cl) (~ ~ ., ~ :~ - "~ " r-J .l:" ~ ~ .' . , . . Writ of Scire Facias action docketed tu No. 95-3534 civil Term in the Court of Common Pleas of Cumberland County, Pennsylvania. A copy of sald Writ of scire FaaillS is attached hereto as "Exhibit B," 4. on July 11, 1995 and July 13, 1995 Owners and several tenants found to be in possession of the premises in question wer.e served with the Writ of Scire Facias by deputies of the Cumberland county Sheriff, 5, The additional defendllnts mentioned in tho preceding paragraph were added to the Writ of Scire Facias as required by the Municipal Claims Act, 53 P.S, S 7185. 6, On or about July 14, 1995, Owners filed Preliminary Objections to the Municipal Claim in the action docketed to No. 95-3403 Municipal Lien Docket in the Court of Common Pleas of Cumberland County, Pennsylvania, 7. On July 26, 1995 the Authority filed Claimant's Preliminary objections to Owners' Preliminary Objections. LAW Ol'lICll SNIl.BAKlR . BRENNEMAN 8, FOllowing the filing of briefs and oral argument, the several Prel.iminary Objections in the Municipal Claim action were resolved in favor of the Authority by Order of Court dated January 24, 1996 which directed the Owners to proceed under the Municipal Claims Act, A copy of said Order is attached hereto aa -2- SILVER SPRING TOWNSHIP AUTHORITY/ Claimant I IN THE COURT OF COMMON PLEAS OF t CUMBERLAND COUNTY, PENNSYLVANIA t t KLD TERK 1995 t t NO. 9S:" J"iOJ : t MUNICIPAL LIEN DOCKET vs. JOHN M. POTTEIGER and LYNETTE F. POTTEIGER/ owners l'lUNICIPAL CLAIM AND NOW/ aomes the Claimant, Silver spring Township Authority/ by the Chairman of the Board of the Silver Spring Township Authority, who filas the following claim: 1. The alaim is filed against John M. potteiger and Lynatte F. potteiger / owners, ("hereinafter "ownars") and all that certain tract of land inclUding improvements thereon/ owned by them and described as follows: 6600 Carlisle pike Mechanicsburg/ PA 17055 Tax property Map No.: 18-1332 Parcel No.: 011 Assessment District: 38 , .;"".. (hereinafter "Premises"), Ir.AW a"ICII .NIL.AkIN . BNlNNIMAN 2. The claim is in the amQunt of $4/550.00 due and owing for sewer permit fees and for which sum/ with interest and aosts, a lien is claimed against the premises in accordance with the Municipalities Authorities Act of 1945/ May 2/ 1945/ P.L. 382/ 53 P.S, S 301, At ~~., as amended and 'the Municipal Claims and Tax Liens Act, May 16, 1923/ P.L. 207, 53 P,S. S 7101/ At ~., as amended. I I,::mlll t'l' ^ 1. The fees claimed are based upon appropriate reDolutions lawfully adopted by Silver spring Township Authority (hersinafter "Authority"), 4. The Authority understood that the Premises was a sinqle- family dwelling and issued a sewer permit on November 23, 1993 based upon that understanding. 5. on or about November 23, 1993, Owners paid to the Authority a tapping fee of $2,000,00 and an inspection fee of $200.00 based upon Owners' representation that the Premises was an existing single-family dwelling. 6, Soon after November 23, 1993, Owners were contacted by the Authority and informed that they had not been charged the lateral fee of $150.00. Owners promptly paid the $150.00 as requested. 7. On or about December 9, 1993, an inspection of the sewer connection by the Authority revealed that the Premises was a two (2) unit dwelling and not a single-family dwelling. LAW ome.. SNIL.....U . IftlNNIMAN 8. By letter of January 26, 1994, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, the Authority informed Owners that an additional amount of $4,550.00 was due to the Authority because the Premises is a two (2) unj,t dwelling. -2- v. No. 96-3634 civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 96-3403 MLD TERM 1996 CIVIL ACTION - LAW MUNICIPAL LIEN SILVER SPRING TOWNSHIP AUTHORITY, caimant JOHN H. POTTEIGER and LYNETTE F. POTTIEGER, Defendants WRIT OF SCIRE FACIAS The commonwealth ot Pennsylvania to John H. Potteiger and Lynette F, potteiger, Greeting: WHEREAS the Silver spring Township Authority, on the 26th day of June, 1995 tiled its claim in our Court of Common Pleas of cumberland county; at No. 95-3403, MLD Term 1995, for the sum of $4,550.00, with interest from the 26th day of June, 1995 for sewer permit tees, against the following property situate in the Township of Silver spring, Cumberland county, Pennsylvania: ALL THAT CERTAIN tract of land inclUding improvements thereon known and numbered as 6600 carlisle Pike, which is owned or reputed to be owned by you. AND WHEREAS, We have been given to understand that said 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 Page 1 of 2 EXIIJ.I\['l' 1\ '.. , I IN 'l'II1 COURT or COMMON PLIAS or CUNBIRLANP COUNTY, PINNSYLVANIA PONNA K, HAMMAKER, ESQ, Attorney far owners-Defendants Attorney r.D. U 43194 1403 Melrose Avenue Chester, Pennsylvania 19013-5702 Telephonet 610-872-7882 l'i ,.., <'1 f:; I."' ''] .., '1';. "', '1:-!1 t,\ .." ''J '~ I.', c" " r" 'Ill ' , ~.. ,,' ", ...,. ,'0 ~'. . ~ ,I ("t. '. 'lr :1'," C-? " :1 ~ ," -. CJ ". ~" -- Silver Spring Township Authority Claimant-Plaintiff Mid Term 1995 No. 915-3534 CIVIL ACTION - LAW Municipal Lien vs. John M, and Lynette F, potteiger Owner-Defendants OWNIR-DBrINDANTS JOHN H. AND LYNBTTB r. POTTIIGIR'S AFrIDAVIT or DlrlNSR AGAINST CLAIMANT-PLAINTI" jILVlR SPRING TOWNSHIP AUTHORITY'S MUNICIPAL CLAIM Owner-Defendants, John M, and Lynette F, potteiger ("Owner- Defendants"), by their attorney, DONNA K. HAMMAKER, ESQ" hereby affirm that they have a defense, in whole, against the municipal claim by Silver Spring Township Authority (" Claimant-Plaintiff"). In defense of Owner-Defendants' position, the following grounds are averred: 1. Claimant-Plaintiff violated the Pennsylvania Sewage Facilities EXlllllIT D ----.--.-...- ....~_._,.,lt:., .~ ~_'_.,',-:..' r .__".' . "''I)-:~r -.. ." '.~.' ,~t ~_ " , . , , ;i . , ';'Ji '.~~ ,'. _to ,ii') , .~ _N )~ "I "'.\ 1 " Act, 351'.8. II 7150,7 (1995) ("Sewage FaollHies Aot") by failing to properly dispose of owner-Defendants I completed sewer permit application within tho time limits prescribed by law, (a) A valid sewer permit was issued to Owner-Defendants on or about November 23, 1993, ~ursuant to the Sewage Facilities Act and regulations promulgated thereto, a copy of which is attached as Exhibit A. (b) Upon Claimant-Plaintiff's issuance of a valid sewer permit for connecting Claimant-Plaintiffls sewer system onto the property owned by Owner.-Defendants, owner-Defendants paid Claimant-l'laintiff a total fee of Two Thousand Three Hundred and Fifty Dollars ($2,350), (0) In reliance upon Claimant-Plaintiffls issuance of a valid sewer permit, Buyers paid a contractor One Thousand and Fifty-Five Dollars ($1,055) for a lateral connection to Claimant-plaintiff's sewer system, (d) Claimant -Plaintiff I s sewage enforcement officer performed the requisite final site inspection on or about December 9, 1993, and approved Owner's connection to Claimant- Plaintiff's sewer system. (e) Approximately sixty days after issuance of the November 23, 1993 sewer permit--and by official letter of January 26, 2 " , 1994--Claimant-Plaintiff admitted that an error had been made regarding Owner-Defendants I sewer permit fees and demanded that Owner-Defendants pay an additional fee of Four Thousand Five Hundred and Fifty Doll.ars ($4,550), 2. Claimant-Plaintiff failed to properly state grounds for a lien against Owner-Defendants I real propp.rty under the Pennsylvania Municipal Claims and Tax Liens Act, 53 P,S, @ 7101 (1995) ("Municipal Claims Act") . (a) A valid sewer permit was issued to Owner-Defendants on or about November 23, 1993. (b) Claimant-Plaintiff 's sewage enforcement officer inspected and approved Owner's connection to Claimant-Plaintiff's sewer system on or about December 9, 1993, 3, Claimant-Plaintiff failed to properly state a claim under the Pennsylvania Municipalities Authorities Act, 53 P,S, @ 301 (1995) ("Municipal Authorities Act") . (a) Claimant-Plaintiff unconditionally accepted Two Thousand Three Hundred and Fifty Dollars ($2,350) as the total sewer service fee obligation that was owing and legally due on or about December 9, 1993, (b) Claimant-Plaintiff has accepted and continues to accept 3. . " sewer service fee payments from Owner-Defendants, without any protest, since Owner's connection to Claimant- Plaintiff's sewer system in 1993. 4, Claimant-plaintiff failed to conform to the statutory provisions of the Municipal Claim13 Act, the Municipal Authoritiea Act and the Sewage Facilities Act, Claimant-Plaintiff violated thel (a) Municipal Authorities Act, 53 P,S. Q!I 306(b) (t) (1995), by increasing sewer connection fees after the date of application and unconditional acceptance of payment for a valid sewer permit. (b) Municipal Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisions of a valid sewer permit. (c) Municipal Authorities Act, 53 P.S, Q!I 306 (b) (h) (1995) I by so substantially increasing its sewer connection fees as to adversely aff.ect real property interests. (d) Municipal Claims Act, 53 P.S, Q!I 7440 (1995), by its errors in assessing, collecting and approving its sewer connection fees, (e) Sewage Facilities Act, 35 P.S. @ 750,7 (1995), by its 4 . . . " . I If' ~ , " , " IN 'nil COURT or CONNON PLIAS or OUNBIRLANP COUNTY, PINNSYLVANIA n I,") ., I" l.\ '01 ,,' ';j , ,-J '"', \ID rr,' ~ t,'l r'l -. rJ [, ...r. ' ." " "\~ t-., ". tp., , , /'\ . , -. \r, , ~'? . '. , - " -, ..., :1 .- ", ~" DONNA K, HAMMAKER, ESQ. Attorney for OWller-Defendants Attorney I,D, ~ 43194 1403 Melrose Avenue Chester, Pennsylvania 19013-5702 Telephone I 610-872-7882 vs, I I I I I I I I I No. 915-3534 CIVI~ ACTION - LAW Municipal ~ien Silver Spring Township Authority Claimant-Plaintiff John M, and Lynette F, Potteiger Owner,.Defendan ts ommR-DlrllNDANTS JOHN M. AND LYNI'1"1'1 r. PO'1"1'IIGIR' S ANSWlR TO THI NONICIPAL CLAIM or CLAIMANT-PLAINTIPP SILVlR SPRING TOWNSHIP AUTHORITY 1, Admit. 2. Deny, statementa are conclusions of law, 3, Deny, statements are conclusions of law, 4. Deny, For the past fifty years, Silver Spring Township records have clearly indicated that the premises is a two unit dwelling, 5, Admit in part and deny in part, Admit that Owners paid Two Thousand Two Hundred Dollars ($2,200) to the Silver Spring ~:XIlIJllT E 1 - ,. ' LAW O"'CII 8NILI!IAI<IA . BfUNtilMAN . " . CER'l'IflCl\TE Of' BER~ I, PHILIP H. SPARE, ESQUIRE, hereby certify that I have, on tho below date, caused a tru~ and correct oopy of the foregoing Motion to po served upon the persons and in the manner indicated beloWI FIRST CLASS MAIL, POS'rlillE PREPAID, ADDRESSED AS FOLLOWS I Donna K. Hammaker, Esquire 1403 Melrose Avenue Chester, PA 19013-5702 David Hackford 6600 Carlisle Pike Mechanicspurg, PA 17055 Jean Guthoehrlein 6600 Carlisle Pike Mechanicspurg, PA 17055 James Betz 6600 carlisle Pike Apartment B " Mechanicspurg, PA 17055 Jodi Betz 6600 Carlisle Pike Apartment B Mechanicspurg, PA 17055 are, Esquire SNELBAKER & BRENNEMAN, P. C. 44 West Main street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Claimant- Plaintiff Date: November ,~7 , 1996 ,. , , " " , , , , , , ' , I' I'.., ; n t,n n , I 0'\ " ~." -.. " ., ::;.1 I ill: ' ,1',1] ~"'1 ..... ;(!J 1'<;;. , r>,) " .-.,_l, .... I,i} , '~6 1<0-_,.' , , ['" : .'11 ,;11 ~; .iI. ,~ (,">. . l N ',]'" ), , .. " :JI -'J p- ", , ",,,"/!. I!!!; I' , " :lltJ.'- SPllNG TPWtfslln Au'J'lll)lITY , . ' 0111m'~t~P141ntlft ';', ',~~ V. '., 1,I'r, f.ufl ::JQ"K"llPTTIIOIlR, LYNltTTE F. I' 'd l'OT'r.~~~, OWlIerl-Det endlnt'l ' ,"~"'" 1',I\ITIIOlIQlLltN. DA~ID I/ACJtFOllD. ;J~.":"lrlt, JODI .nlt, .' 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It! o r- ... ~ If ~m~ ~ni SlOp., '1lO< I' , I , I In , " I ~ :!3 Ii . i::. I ~ ! 'il I Wi ~ ~ ~ ~ '''"' I ~ ~ ~ . I ! :1 ~ ~ ~ ; I' ~ ~ 0 ~ Ii . I t' ~ 0 ~~ ~ ~ ~ I I ~< 7- I ,> , I ~ 5 ! Z , ,"a.' V) "" I' ;; - .:,.: ~ ~-._- ~.-'."~-" .., ,.1.. . ....~ SILVER SPRING TOWNSHIP I IN THE COURT OF COMMON PLEAS OF AUTHORITY I CUMBERLAND COUNTY, PENNSYLVANIA I V. I I JOHN M. POTTEIGER, LYNETTE I NO. 95-3534 CIVIL TERM F. POTTEIGER, OWNERS I DEFENDANTS, JEAN GUTHOBHRLEIN,I DAVID HACKFORD, JAMES DETZ, I JODI BETZ I MUNICIPAL LIEN I I CIVIL ACTION - LAW IN REI NOTION rOR JUDOHBNT ON WRIT or SCIRE rACIAS I.rORl SH.ILY. P.J.. HISS. J..-9LIR. J. II ORDER OF COUR~ NOW, this ~ day of AfRI1, 1997, jUdgmsnt is granted in AND favor of the Silver Spring Township Authority and against John M. Potteiger and Lynette F. Potteiger, as owners of the premises looated at 6600 Carlisle Pike, Meohaniosburg, Pennsylvania, ill the amount of $4,550 plus interest from June 26, 1995, and dooket oosts. By the Court, lie 'J:f=-~", J~_____ ~ E~ Sh~lY, P.J. Philip H. Spare, Esquire . For Silver Spring Township Authority . (, J.... u /'1/"'1 - l~-a(fY'~ (')~<< .., 1: Donna K. Hammaker, Esquire .....5, of , For the Defendants 1B1d " SIINBR SPRING TOWNSHIP AU'rHORITY IN THE COURT O~ COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JOHN M. POTTEIGER, LYNETTE F. POTTEIGER, OWNERS DEFENDANTS I JEAN Gl/THOEHRLEIN, DAVID HACKFORD, JAMES BETZ, JODI BETZ NO. 95-3534 CIVIL TERM MUNICIPAL LIEN CIVIL ACTION - LAW IN RI. MOTION rOR JUDOHINT ON WRIT or ICIRI rACIAS IIroRl IHIILY, P.J.. H188. J.. OLIR. J. OPINION AND ORDER ,or COURT Argument was heard on February 5, 1997, on the motion of Silver Spring Township Authority (olaimant), requesting judgment a. a matter of law against John M. Potteiger and Lynette F. potteiger (dofendantsl. Claimant asserts that defendants lack a suffioient affidavit of defense to the township's Writ of Scire Faoias, filed to enforce its munioipal olaim in the amount of $4,550.00, plus interest and oosts for a sewer permit. FACTS ~ND PROCEDURAL HISTORY The record disoloses the following. Defendants are the own$rs of property looated 6600 Carlisle Pike, Silver spring Township, Meohaniosburg. On November 23, 1993, claimant issued a permit for a sewer oonnection on defendants' property I defendants paid a total fee of $2,200.00 at the time of applioation. Claimant notified defendants on Deoember 3, 1993, that ~n additional $150.00 was owed, and defendants paid this amount. After conducting a site inspection on December 9, 1993, claimant approved defendants' hook-up to the township's sewer system. NO. 95-3534 CIVIL TERM By letter dated January 26, 1994, olaimant notifiud defendants that an error had been made in the issuanoe of their sewer permit for the reason that the property was assesBed aB a Bingle-family dwelling and not a two (2) unit dwelling. Claimant demanded further payment of $4,550. Defendants refused to pay the additional sum. On June 26, 1995, olaimant filed a munioipal olaim against defendants, and initiated a Writ of Soi~e Faoiae aotion on June 30, 1995. On July 11, 1995, and July 13, 1995, the Cumbel."land County Sheriff's Department served the Writ on the Potteigers and the tenantu found to be in possession of the premises in queetion, who were then added to the Writ pureuant to the Munioipal Claims Aot, 53 P.S. S 7186.' On July 14, 1995, defendante filed preliminary objeotions and in turn, claimant filed preliminary objectione to defendante' objeotions. The Court ruled in favor of olaimant on these objections and direoted dofendants to prooeed under the Munioipal Claims Aot. On February 26, 1996, dRfendante filed an Affidavit of Defense and an Answer to the municipal claim. This matter then went before a board of arbitrators on July 24, 1996, with the board deoiding in favor of claimant for the Bum of $4/550.00, plus interest from June 26/ 1995, and docket costs. Defendants have appealed the award of the arbitrators to this Court and demand a jury trial. The tenants are the other captioned defendants. 2 NO. 95-3534 CIVIL TERM On November 27, 1996, claimant filed the inytant motion, Alleging that because defendants have not set forth any cognizable defense and there are no issues of material fact, the Court should enter judgment against defendants as a matter of law. DISCUSSION This oase is governed by Seotion 72'71 of the Munioipal Ccde, reading. I 7271. Judg..nt for want of affidavit of defen.., ........nt of 4...g.. rul. for judg..nt, r.plication . . . If an affidavit of defense be filed, a rule may be taken for judgment for want of sufficient affidavit of defense, or for so much of the claim that is epecifically denied, with leave to proceed for the residue. 53 P.S. S 7271. The issue in this case may therefore be framed as followa. do defendants have a recognizable defense for failure to pay the sewage hook-up COBts for their two (2) story dwelling after having paid and received approval for a single-family dwelling hook-up? For the reasons that follow, this Court believes that defendants have no defBnse to the municipal claim lodged against them. With regard to whether there are any facts in dispute, defendants admit to not having paid the difference between a twc 3 NO. 95-3534 CIVIL TERM (2) unit dwelling and single family dwelling,1 but they still believe a material faot exists as to whethsr or not they knowingly made false statements to claimant to induoe it to issue the wrong sewer permit. However, we ~re in agreement with olaimant that the fraudulent mierepresentaHon iesue is irrelevant. l!:ven if defendants made no fraudulent misrepresentation, the ieeue of whether defendants must pay olaimant the differenoe between the hook-up oosts for a two (2' unit and single family dwelling remains. Defendants further contend that a factual issue exists as to whether claimant exercised due diligence. In support of their position, they oite Price v. Scranton, 321 Pa. 504, 184 A. 253 (1936). The facts of Price, however, are completely inapposite to the faots of the caBe at bar. In Price, the city of Soranton contracted for the construotion of a sewer system and in the court's view, was negligent in its collection of the assessments upon whioh the bonds rested in that at the end of the five year period fixed for payment, only 1/16 of the principal of the bonds had been paid. There was no apparent reason for. this negligence. What has occurred in the instant case is of an entirely different natur.e. We now turn to the legal arguments at issue. Defendants maintain that under the Municipality Authority Aot, the sewer Owner-Defendants John M. and Lynette F. Potteiger's Answer to the Municipal Claim of Claimant-Plaintiff Silver Spring Township Authority, !9. 4 NO. 95-3534 CIVIL TE~H c~nneotion fees to be imposed by claimant are those which were aaa...ed on the date of applioation and for whioh payment wae made for defendants' sewer permit. Specifically, defendant. point to 53 P.S. S 306(BI(t), claiming that aewer oonnection feee ahall be bued upon the "fee schedule at the time of payment and ahall be payable at the time of application for payment." Id. (emphlllliB added). Defendants aver that because olaimant unconditionally aocepted their payment for a single family dwelling, olaimant'lI demand for an additional $4,550 haa resulted in an illegal increased fee. Seotion 306(B) (t), though, aupports olaimant's position. The fee schedule at the time of applioation for a two unit dwelling was $6,900. Defendants have made a number of arguments oontending olaimant raieed the sewage fee, but theee argumente are irrelevant beoauee the fee wae never raised. Rather, when the mistake wae disoovered within a reasonable period of time, defendante hook-up fee was then aeeessed ae it should have been at the time of application. Defendante aleo submit that becauee claimant erred in initially accepting payment for a eingle family dwelling, the Municipal Code prohibite olaimant from colleoting the differenoe in cost for the hook-up because of the error. Defendante oite to 53 P. S. S 74401 in effect at the time \then defendants obtained their eewer permit. An examination of S 7440 revoale that The Boction ie entit.led Validation of muniaipal iaprov...nt., ........nt., al.i.. and li.na. 5 NO. 95-3534 CIVIL TERM olaimant i. not barred from oolleoting the additional $4,550, representing the differenoe in the hook-up fees due to error. First of all, it is not of record that Silver Spring is a firet olass township falling under the scope of this seotion. Furthermore, as the title indicates, the purpose of S 7440 is to validate municipal lions. Moreover, the language "any error made in the name of the owner or owners . . . cannot be enforced" refers to naming the wrong person or persons, which is not what is being alleged here. Thue, this defense also fails. In conclusion, there is no factual dispute that defendants have not paid the entire cost of sewage hook-up for their two unit dwelling. AddiHonally, defendants have not aet forth a sufficient defense. We will therefore enter judgment for claimant. QlillIDLQ.t.. COURT AND NOW, this ~/~/aay of APRIL, 1997, judgment is granted in favor of the Silver Spring Township Authority and against John M. Potteiger and Lynette F. Potteiger, BS owners of the premises located at 6600 Carlisle Pike, Mechanicsburg, Pennsylvania, in the amount of $4,550 plus interest from June 26, 1995, and dooket oosts. Philip H. Spare, Esq. By the C()urt, Donna K. Hammaker, Eeq. IBId La/ Harold E. Shealy Harold E. Sheely, P.J. 6 , , , (l 'j.:) c r t\- ~ -. h .t- el) S ~ 6' fA " Ul . Q o 13-, ~ "c' " I "11 , ! , ) " , '.1 'i_\ ;,l) ""II 1.\ I tl\ :,.1 , "1 ". "'I (i'\ (8) Claimant-Plaintiff Has Violated PIl~R.Civ,P, 2232(b) ..,""""".,..". 12 (b) Claimant-Plaintiff Has Violated Pa.R,Civ.p, 2232(d) 11""""""""" 12 (e) Tenant-Defendants Are Not Indispensable Parties I I . , , . . , , , . . . . I . . . . I , . , . , , . , . , I I 14 a. Tenant-Defendants Were Improperly Served, Therefore They Should Be Dismissed With Prejudice ",... I . I . . . . . . I I . I I I . I '" . . , . . , I I . 15 , (a) Claimant-Plaintiff Has Violated Pa,R,Civ.P, 410 (b) (1) ..... ",, ".",, I. 15 (b) Claimant-Plaintiff Has Violated Pa,R.Civ,P, 410(b) (2) . ."'.....,.."". 16 ,III, CONCLUSION I CLAIMANT-PLAINTIFF'S WRIT OF SCIRE FACIAS SHOULD BE STAYED AND TENANT-DEFENDANTS DISMISSED WITH PREJUDICE '" I . . , . . . . . . . . , . , . , , , I . . . . . I , . . . . , . , . . . . , , , I 17 BXHIBITS Exhibit ~ - Claimant-Plaintiff Municipal Claim (# 95-3403) Exhibit Two - Claimant-Plaintiff Writ Of Scire Facias (# 95-3434) Exhibit Three - Owner-Defendants Preliminary Objections (# 95-3403) Exhibit F.Q1U.: - Claimant-Plaintiff Notice To Plead (# 95-3434) Exhibit Five - Claimant-Plaintiff Motion For Stay And Dismissal iii TABLa 0' AU'l'HOR~UU PINNSYLVANIA OASISr Belle v, Chiep~a, 659 A,;!d 1035 (Pa. Super, Ct, 1995) ..............'........... 11 Board of Comm' rs v. 'roll Brothers, 147 Pa, Commw. 298, 607 A.2d 824 (1992) , , , . , . . , . , I . , . . , t t ~ , Camoanaro v, PennsYlvania Electric Co" 656 A.2d 491 (Pa. Super. Ct. 1995) ......................... 14 Casselli v, Commonwealth, 146 Pa, Commw. 625, 606 A,2d 663 (1992) .............."....14 Continental Bank v, Be.lJJ1!1.n, 25 Phila. 80 (1992) '"",...,...., 14 Grimme Combustion. Inc. V. Meraentime Corp" 406 Pa. Super. 620, 595 A.2d 77 (1991) appeal denied, Meraentime Corn. V. Grimme Combustion, ~, 530 Pa, 644,607 A.2d 254 (1992) ...............".... 14 Grisbv v, Maior, 29 Phila. 572 (1994) ...... .............".... 14 Hart v, O'Malley, 436 Pa, Super. 151, 647 A,2d 542 (1994) appeal granted, 655 A.2d 515 (Pa. 1995) ..,.,.."..........'.14 Hornstein Enterorisf.ls v, 'l'ownship.2i. Lvnn, 160 Commw. 72,634 A.2d 704 (1993) ......................'... 6 Linda Coal & Suoolv CO. V. 'rasa Coal Co" 416 Pa, 97, 204 A.2d 451 (1964) ............................ 7 LQndon V. Pennsy~ania Brakina Bondina Co., 12 Phila, 554 (1985) ...............................,....,......"....11 Lower Frederick 'rownshio V. Clemmer, 518 Pa, 313, 543 A.2d 502 (1988) ......,... I"'............, Nolan v. Reading, 253 Pa. 367, 84 A. 390 (1912) ..............,......., t...." , Paden v, Baker Concrete Constructio~, 437 Pa. Super. 59, 648 A.2d 1227 (1994) rev'd, 58 A.2d 341 (Pa, 1995) .....,........,..........,.........."..11 Patwardhan V. Brabant, 294 Pa, Super. 129, 439 A.2d 784 (1982) ". ,...,. ..,." "." 14 iv 6 10 7 oolleotiveJ.y referrecl to aa IITenant-Defendantall),l/lB filed by Claimant-Plaintiff, Silver Spring Township Authority (IIGllllmant- P'lalntlff") , t. tNT~ODUCTtON Claimant-Plaintiff's notice to plead on its writ of scire facias is so deficient that Owner-Defendants do not believe that even mininlal factual and legal research was done, 2 There is no justification for serving said notice to plead the day immediately after a full hearing on preliminary objections to Claimant- Plaintiff's scire facias sur municipal claim before the Honorable Judges Harold E, Sheely and J. Wesley Oler, Jr.) Owner-Defendants 1 Claimant-Plaintiff's notice to plead was defective. Claimant- Plaintiff's notice incorrectly named additional party defendants I (1) David Halford, Jimmy and Jody Betz are the correct names of the joinded defendants. (2) Jean Guthoehrlein has not leased the subject premises from Owner-Defendants, nor are Owner-Defendants aware of any lease that she has signed for said premises, 2 Claimant-Plaintiff's service of its notice to plead and its joinder of additional party defendants on its writ of scire facias violated Pa.R.Civ.P. 410 and 2232. 3 Oral arguments on preliminary objections regarding Claimant- Plaintiff's scire facias sur municipal claim were heard on AuguRt 16, 1995, On August 17, 1995, Claimant-Plaintiff filed an untimely notice to plead its writ of scire facias, e,g. during pendency of a judicial determination of its underlying municipal claim. 2 maintain that Claimant-Plaintiff remains procedurally confused. (Claimant Resp, Mem, at 9-10, 13-22) and so unaware of existing law that it is unrea~onably continuing to obscure their clear legal rights by untimely filings and obfuscation of the real issues before the Court,! ISSUISr Two issues are presented to the Court by the service of Claimant-Plaintiff's notice to pleadr (1) Whether joinder of additional defendants to a notice to plead on a writ of scire facias is timely, during pendency of a judicial determination as to the legal sufficiency and conformity to law of its underlying municipal claim;& (2) Whether tenants have a legitimate interest in 4 See discussion supra parts II.A-B. contending that Claimant- Plaintiff's writ of scire facias should be stayed and that additional party defendants should be dismissed with prejudice. 5 The record discloses a veritable onslaught of writs, objections, briefo and notices relating to this case sub judice (totalling approximately ten in number) that appear to have done nothing more than protract this suit and which have accomplished little in the way of justice in the process. Owner-Defendants have made every effort to accommodate the seemingly endless cascade of writs, objections, briefs and notices submitted by Claimant- Plaintiff in its effort to procedurally confuse and increase Owner-Defendants' litigation costs. 6 Claimant-Plaintiff's writ of scire facias is founded upon its municipal claim for increased sewer connection fees against Owner-Defendants. Owner-Defendants argued in their preliminary objections that they are not liable, as a matter of law, for Claimant- Plaintiffls increased sewer connection fees. (Owners Prelim, Obj, , 8-10), Owner-Defendants decline--pending a determination by the Court in regards to their preliminary objections--to acknowledge Claimant-Plaintiff's demand for increased fees, 3 their landlord's property under the Pennsylvania Municipal Claims and 'rax Liens Act, 53 p,s, @ 7101-7505 (1995) ("Municipal Cl<jims Act"), as to be enjoined as defendants to a writ of scire facias arising from a municipal claim against their landlord, when said landlord is lawfully disputing said claim,? (Owners Prelim. Obj. . 8-10 and Owners Mem, 11,1-4), 'ACTS or THIS CASB SUB JUDICII The relevant facts are as follows I 1. On June 26, 1995, Claimant-Plaintiff filed a municipal claim (docketed at No. 95-3403) against. Owner-Defendants for increased sewer connection fees, which by statute, became a lien against Owner-Defendants' real property (Bxhibit 1) . 2, On June 30, 1995, Claimant-Plaintiff filed a writ of scire facias (docketed at No, 95-3434) against Owner-Defendants (not since as a matter of law, Claimant-Plaintiff's claim is barred by its issuance of a valid sewer permit and its unconditional acceptance of payment for said permit, (Owners Mem, I 1.1-4, contending that Owner-Defendants I preliminary objections should be sustained) , ? Owner-Defendants objected to Claimant-Plaintiff's scire facias sur municipal claim by three objections I (1) Failure to state grounds for a lien against Owner- Defendants' real property under the Municipal Claims Act, (Prelim. Obj, , 6-10). (2) Failure to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P,S. @ 301 (1995) ("Municipal Authorities Act"). (Prelim. Obj, , 9), 4 against Tenant-Defendants) seeking to prosecutft the lien to judgmont (Ixhibit ~) , 3, Owner-Defendants filed preliminary objections to Claimant- Plaintiffls scire facias sur municipal claim on July 14, 1995, seeking to strike the claim (docketed at No, 95-3403) (Ixhibit 3) . 4, Claimant-Plaintiff filed responding preliminary objections to Owner-Defendants' preliminsry objections on July 26, 1995 and on the same date filed a praecipe for oral argument, 5. The Court heard oral arguments on the preliminary objections from Owner-Defendants and Claimant-Plaintiff on August 16, 1995, 6, Claimant-Plaintiff sent a notice to plead its writ of scire facias (docketed at No, 95-3434) to Owner-Defendants and Tenant-Defendants on August 17, 1995 (Exhibit 4). 7, Owner-Defendants filed a motion to dismiss Tenant-Defendants and to stay Claimant-Plaintiff's writ of scire faclas during the pendency of preliminary objections against Claimant- Plaintiff's municipal claim (docketed at No, 95-3434) on August 28, 1995 (Exhibit 5) , 5 II. ARGUNINT SUPPORTING A MOTION rOR STAY or OLAIMANT-PLAINTIrr's WRIT or SOIRI rACIAS AND DISMISSAL 0' TINANT-DIPBNDANTS WIT~ PRlJUDIOI More procedural confusion is resulting from Claimant- Plaintiff's effort to prosecute its municipal lien to judgment prior to a determination by the Court on the legality of its Bcire facias sur municipal claim,' In fact, there is no justification for Claimant-Plaintiff's filing of its notice to plead other than to harass Owner-Defendants and to increase their litigation coste. Claimant-Plaintiff filed their scire facias sur municipal claim against Owner-Defendants, who answered and defended it by filing preliminary objections. There was no need for Claimant-Plaintiff to erect additional procedural hurdles and mazes that only serve to obscure Owner-Defendants I clear legal rights,9 8 Owner-Defendants decline to file affidavits of defense to Claimant-Plaintiff's writ of scire facias to strike their municipal claim until their non-statutory remedies have been exhausted. There is a distinction between responding to a writ of scire facias and responding by preliminary objection against a scire facias sur municipal claim. Shapiro v, Center Township, 159 Fa. Commw, 82, 88, 632 A.2d 994, 997 (1993) appeal denied, Center v, ShaoirQ, 537 Pa, 635, 642 A.2d 4ee (1994). Owner- Defendants have elected to defend Claimant-Plaintiff's claim by preliminary objection. 9 As a matter of law, Owner-Defendants maintain in their preliminary objections that Claimant-Plaintiff's claims are legally deficientl (1) Municipalities cannot increase their sewer connection fees after the date of application and acceptance of payment for a valid sewer permit. See Board of QQmm'rs v. Toll Bros" 147 Fa. Commw. 298, 607 A.2d 824 (1992), reh'g and appeal denied (1993) I Hornstein Enters. v, Townshio of Lvnn, 160 Commw, 72, 634 A.2d 704 (1993), reh'g and appeal denied (1994) I (Owners Mem, 5-7). I , A. JOINDIR OF AODITIONAL DEFENDANTS TO A WRIT OP SCIRI PACIAS IS UNTIMILY DURT.NG PENDINCY OP A JUDICIAL DETERMINATION OP ITS UNDIRLYING MUNICIPAL CLAIM, THERlrORB CLAlMANT-PLAINTIPF'S WRIT OP SCIRE PACIAS SHOULD BI STAYED Examination of the definitions of a "writ of scire facias" makes clear that Claimant-Plnintiffls writ is merely a continUation of its municipal claim against Owner-Defendants,10 A writ of' scire facias is defined aSI A judicial wrh, founded upon some matter of record, such as a judgment11 '" and requiring the person (2) Municipalities must accept payment according to the provisions of a valid sewer permit. E.g" Bee ~rice v. Scranton, 321 Pa, 504, 506, 184 A. 253 (1936) I Nolan v. Re~, 253 Pa, 367, 84 A. 390 (1912) I (Owners Mem, 7-10). (3) Municipal fees cannot adversely affect real property interests. West V. Hampton Township Sanitary Authority, 1995 Pa. Commw. LEXIS 309 (June 25, 1995) I Raum V. Board of Supervisors, 29 Pa. Commw. 9, 370 A.2d 777 (1.977) I (Owners Mem. 10-11). (4) Municipalities are liable, absent fraudulent misrepresentation, for their assessment errors. (Owners Mem, 11-12) I (Owner.s Resp. Mem. 4-7) I E,g, Linda Coal &. SupplY Co, v. Tasa C<;;>al Co., 416 Pa. 97, 102, 204 A.2d 451, 454 (1964). 10 A Bci1.'e facias sur municipa.1 claim (docketed at No. 95-3434 and No, 95-3403) is defined as "a writ authorized to be issued as a means of enforcing payment of a municipal claim out of the real estate upon which such claim is a lien," Blacks Law Dictionary 1208 (6th ed. 1990). 11 The Pennsylvania Commomlealth Court in Shapiro V. Center Township, 159 Pa, Commw. 82, 87 n.3, 632 A.2d 994, 997 n.3 (1993) appeal denied, S;enter V. Shapiro, 537 Pa. 635, 642 A.2d 488 (1994), stated that I A writ of scire facias is a mandate to the sheriff, which recites the occasion upon which it issues, which directs the sheriff to make known to the parties named in the writ that they must appear before the Court on a given day, and which requires the defendant to appear and show cause why the plaintiff should not be permitted to take some step, usually to have advantage of a public record. 7 against whom it is brought to show cause why the party bringing it should not have advantage of such record"" The most common application of this writ ia a process to revive 11 judgment, after the laplle of a certain time, or on a change of pnrties,l~ or otherwise to have execution of the :judgment / in which cases it is merely a continuation of the original action, Under current rules practices in most states, 13 this writ has been abolished.14 Blacks L,aw Dictionary 120U (6th ed. 1990) , Clearly, the definition of a writ of scire facias illustrates the inappropriateness, of Claimant-Plaintiff's effort to prosecute its municipal claim to judgment and its joinder of additional defendants, during pendency of a judicial determination of its underlying municipal claim,15 Claimant-Plaintiff's notice to plead on its writ of scire facias demonstrates complete procedural confusion by counsel. 12 Hearing on Owner-Defendants' Preliminary Objections, 08/17/95 before the Honorable Judges Harold E. Sheely and ,7. Wesley Oler, Jr. (statement of D, Hammaker / Esq., Attor.ney for Owner- Defendants, that writs of scire facias are generally used to revive a judgment or on change party defendants) . 13 Only eleven appellate decisions have mentioned writs of scire facias by Pennsylvania municipalities since 1985/ indicating that use of this procedure practice is uncommon in most counties. 14 Delaware is the only state, other than Pennsylvania, to use writs of scire facias. See 30 Del.C. 5219 (1994) (providing for payment and recovery of commodity taxes on motor carriers) . 15 In this case sub judice, Owner-Defendants filed preliminary objections to Claimant-Plaintiff/s scire facias Eur municipal claim on July 1.4, 1995 and appeared before the Honorable Judges Harold E. Sheely and J. Wesley Oler, Jr. on August 16/ 1995 to show cause why Claimant-Plaintiff should not be permitted to execute upon its claim. There was no justifiable reason for Claimant-Plaintiff to serve Owner-Defendants and their tenants/ with a notice to defend on August 17/ 1995, other than harassment. B 1. JUDIOIAL DITBRMINATION or THI LAWPULNISS OP CLAIMANT. PLAINTIPP'S SCIRI FACIAS SUR MUNICIPAL CLAIM IS PINDING, THBRlrORI ADDITIONAL DIPeNDANTS SHOULD NOT BI ADDID TO SAID WRIT DURING THIS PINDmNC~ Clnimant-Plaintiffls writ of scire facias is founded upon itu municipal claim, a Judicial determination of the lawfulness of which is pending, In other words, the Court is in the process of determining whether Claimant-Plaintiff's Bcire facias sur municipal claim is warranted or authori~ed by the law.l~ A judicial determination is pending as to whether Claimant-Plaintiff's scire facias sur municipal claim has the qualifications prescribed by law or whether it is contrary to and forbidden by the law.1? 16 In Pennsylvania, a writ of scire facias is purely statutory. Shapiro v, Cfmter Townshio, 159 Pa. Commw. 82, 632 A,2d 994, 99'7 (1993) appeal denied, Center v. Sha.J21.rQ, 537 Pa. 635, 642 A.2d 488 (1994), Procedures under the Municipal Claims Act are unusual in several respects: (1) All lawfully assessed or imposed municipal claims are liens, upon the property, that arise when laWfully imposed and assessed. 53 P.S. @ 7106(a) (1995) . (2) Assessment and imposition of the lien occurs without any form of hearing. Hearing on Owner-Defendants' Preliminary Objections, 08/17/95 before the Honorable JUdges Harold E. Sheely and J. Wesley Oler, Jr. (statement of D. Hammaker, Esq., Attorney for Owner-Defendants citing 8haoiro, 159 Pa, COl'1mw, at 82,632 A,2d at 997). 17 Owner-Defendants maintain in their preliminary objections that Claimant-Plaintiff has failed to conform to the law and that, as a matter of law, it has violated the: (1) Municipal Authorities Act, 53 P.S. @ 306(b) (t) (1995), by increasing sewer connection fees after the date of application and unconditional acceptance of payment for a valid sewer permit. (Owners Mem, 5- 7) . (2) MuniCipal Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisions of a valid llewer permit. (Owners Mem. 7-10). 9 Accordingly, joinder of additional defendants at the current stage of this case sub judic~ is untimely and a clear attempt to obscure the substantive issues currently pending before the court,lB 2. ONCB OWNBR-DBPIlNDANTS WERl'l SIIlRVBD, CLAIMANT-PLAINTI" MAY ONLY l,rlllCTUATIIl THB JOINDIIlR OF ADDITIONAL PARTIeS BY PA.R.CIV,P. 2232(0) As a matter of law, once a party defendant is served, plaintiff may only effectuate the joinder of additional parties by P.a,R.Civ, F. 2232 (c) ,19 LQ.\iill:" Frederick Township v, Clemmer, 518 (3) Municipal Authorities Act, 53 F.S, @ 306 (b) (11) (1995), by so substantially increasing its sewer connection fees as to adversely affect real property interests. (Owners Mem, 10-11), (4) Municipal Claims Act, 53 F.S. @ 7440 (1995), by its errors in assessing, collecting and approving its sewer connection fees. (Owners Mem. 11-12), 18 Substantive issues pending before the Court by preliminary objections include: (1) Whether Claimant - Plaintiff can increase its sewer connection fees after the date of application and payment for a sewer permit. (Owners Mem. 5-7), (2) Whether Claimant-Plaintiff has breached the terms of its sewer permit. (Owners Mem. 7-10). (3) Whether Claimant-Plaintiff has adversely affected Owner-Defendants' property interests. (Owners Mem. 10-11) . (4) Whether Claimant-Plaintiff can require Owner- Defendants to pay for its assessment errors. (Owners Mem, 11.12), 19 Pa,R,Civ.P. 2232(c) provides in pertinent part that a court may order the joinder of any additional indispensable parties to an action: At any stage of an action, the Court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined, The Court in its discretion may proceed in 10 PI:t, 313, 326, 543 A,2d 502, 509 (1966) ,30 Since Claimant-Plaintiff joinded additional party defendants by simply adding their namev to its notice to plead--after Owner-Defendants had already been served Claimant-Plaintiff's scire facias sur municipal claim--its joinder of Tenant-Defendants is improper. B. TeNANTS CANNOT Be BNJOINBD AS DEPBNDANTS TO A WRIT OF SCIRI FACIAS ARISING FROM A MUNICIPAL CLAIM AGAINST THEIR LANDLORD, THeReFORe TeNANT-DEFENDANTS SHOULD Be DISMIsseD WITH PReJUDICe Claimant,. Plaintiff has misjoined Tenant-Defendants to its writ of scire facias. 1. TINANT-DBFBNDANTS HAVE NO INTBRBST IN OR TITLE TO THB RIAL PROPERTY SuaJECT TO CLAIMANT-PLAINTIFF'S WRIT OF SCIRB FACIAS, THBREFORE THEY SHOULD BE DISMISSBD WITH PREJUDICB Claimant-Plaintiff has asserted no claim for relief against Tenant-Defendants as required by Pa,R.Civ.P. 2232. For the action although such person has not been made party if jurisdiction over him cannot be obtained he is not an indispensable party to the action. a and See 7 Goodrich Amram @ 2332(c) :1.1, pp. 563-64; See part 11,B,l. (a-c) contending that Tenant-Defendants indispensable parties. 20 Belle v, Chieopa, 659 A.2d 1035 (Pa. Super. Ct. 1995); ~ Baker Concrete Con~tr., 437 Pa. Super. 59, 62, 648 A.2d 1227, 1228 (1994) rev'd, 58 A,2d 341 (Pa. 1995); Yates v. Pacor, ~, 352 Pa, Super. 335, 337-338, 507 A.2d 1258, 1259 (1966); London v. Pennsylvania Brakino Bonding Co., 12 Phila. 554 (1985) . also supra are not 11 approximately fifty years, the real property subject to Clsimant- Plaintiff's writ of sciro facias has been listed in the Cumberland county tax records as titled to the Potteiger family, Owner- Defendants are the sole and exclusive owners of said property on the County tax r~cordsl no other parties have any interest in or title to the real property, Accordingly, 'fenant-Defendants should be dismissed with prejudic~ from Claimant-Plaintiff's writ of scire facias, (A) CLAIMANT. PLAINTIFF HAS VIOLATBD PA.R.CIV.P. 2232(b), THIRIFORI TBNANT-DBFBNDANTS SHOULD BB DISMISSBD WITH PRIJUDICB since no claim for relief has been asserted against Tenant-Defendante,U as required by Pa,R,Civ.P, Rule 2232(b) ,22 Tenant-Defendants should be dismissed with prejudice from Claimant- Plaintiff's writ of scire facias, (b) CLAIMANT. PLAINTIFF HAS VIOLATBD PA.R.CIV.P. 2232(d), THIRBFORI TINANl'-OBFENDANTS SHOULD BB DISMISSED WITH PRIJUDICB 21 Claimant-Plaintiff's joinder of Tenant-Defendants is reckless harassment, Claimant-Plaintiff knows, or should know, that it cannot assert any claim for relief from Owner-Defendants' tenants, 22 Pa,R.Civ.P. 2232(b) provides that "joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the Court whenever he has been misjoined or no claim for relief is asserted against him in the action by any other party." 12 Pa,R,Civ.P. 2232(d) provides the pr.ocedure to dismiss defendants when the facts do not justify their inclusion,23 ptak v, Masontown Mon/s Softball Leaque, 414 Pa, Super, 425/ 607 A.2d 29'1 (19921 appeal del111';ld, 533 Pa, 661/ 625 A.2d 119,1 (1993), Pennsylvania AReo, oC State Mental Hoseital Physicians, Inc. v, ~tate Emeloveee' Retirem~nt Board, 25 Pa. Commw. 632/ 641/ 361 A.2d 449/ 455 (19'16). Tenant-Defendants are not liable jr)intly, severally or separately on the sciro facias sur municipal claim against Owner-Defendants.24 Regardless of the nature of tho claims that Claimant-Plaintiff may still contrive, it ~ay not recover against Tenant-Defendants, said tenants are not responsible for Claimant-Plaintiff/s assessment er.rors.25 Tenant-Defendants cannot 23 Pa.R,Civ,P. 2232(b) provides thatr When a plaintiff joins two or more defendants and the evidence does notjustify a recovery against all of them, the court shall enter a nonsuit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately, and the action shall continue and determine which of the remaining defendants are jointly, severally or separately liable with the same effect as though the defendants found to be liable were the only ones joined, As in other cases the court may enter judgment notwithstanding the verdict in favor of or against any of such defendants, 24 At the current stage of this case sub judice, tenants do not have occasion to show cause why their landlord should be required to make payments for services which their landlord is lawfully disputing. "The object of the writ of scire facias is ordinarily to ascertain the sum due on a lien of record and to give the defendant an opportunity to show cause why the plaintiff should not have exacution." Shaeiro v, Center Township, 159 Pa. Commw. 82, 87 n.3, 632 A,2d 994/ 997 n,3 (1993) appeal denied, Center v. Shaeiro, 537 Pa. 635/ 642 A,2d 488 (1994). 25 Claimant-Plaintiff/s joinder of Tenant-Defendants is frivolous I Claimant-Plaintiff knows, or should know, that it cannot allege 13 possibly ascertain the sewer connection fees that are being disputed on Claimant-Plaintiff's scire facias sur municipal olaim against Owner-Defendants, See Shapiro v, Center Township, 159 ~a, Commw, 82, 87 n,3, 632 A,2d 994, 997 n,3 (1993) appeal denied, CentllJ: v. Sha1;)iro, 537 Pa. 635, 642 A.2d 488 (1994). (0) TBNANT-DBFENDANTS ARE NOT INDISPENSABLB PARTIES, THEREFORE THEY SHOULD BE DISMISSED WITH PRBJUDICB The Pennsylvania Supreme Court has defined an indispensable party as one whose "rights are so connected with the claim~ of the litigants that no decree can be made between them without impairing such rights," ~amoanaro v. Pennsvl vania Elec, ~, 656 A.2d 4n, 493 (Pa, Super, Ct, 1995) quoting Powell v. Sheoard, 381 Pa. 405, 412, 113 A.2d 261, 265 (1955) .26 The absence of an indispensable party deprives the Court of jurisdiction. Patwardhan v. Braban~, 294 Pa. Super. 129, 439 A,2d 784, 785 (1982), Continental Bank v. Berman, 25 Phila. 80 (1992), See also Pa,R.Civ.P. 1032 (when indispensable party is not joined, court a single fact which demonstrates that said tenants have any interest in or title to Owner-Defendants' real property, 26 E,g" Hart v. O'Malley, 436 Pa. Super. 151, 647 A.2d 542 (1994) appeal gz'anted, 655 A.2d 515 (Pa. 1995); 9rimme Combustion. Inc. v. Meroentime Coro., 406 Pa. Super. 620, 595 A.2d 77 (1991) appeal denied, ~oentime Coro. v. Grimme Combustion, ~, 530 Pa. 644, 607 A.2d 254 (1992); ~~vlvania Ass'n of Rehabilitation Facilities v. Foster, 147 Pa. Commw. 487, 608 A,2d 613 (1992) summ. judgment granted, review dismissed, 159 Pa, Commw. 428, 633 A.2d 1248 (1993); Casselli v. Commonwealth, 146 Pa. Commw. 625, 606 A.2d 663 (1992), Grisbv v. Maior, 29 Phila, 572 (1994), Continental Bank v. Berman, 25 Phila. 80 (1992) . 14 shall dismiss action) .27 Pertinent legal authority and the facts of this case sub judice indicate that Owner-Defendants' tenants are not indispensable parties,28 Tenant rights wLII not be impaired, under any contrived factual situation, by Claimant-Plaintiff's scire facias sur nmnicipal claim against Owner-Defendants, 2. TENANT-DErBNDANTS WERE IMPROPKRLY SERVED, THBREFORI TRIY SHOULD BB DISMISSED WITH PREJUDICE Claimant-Plaintiff fails to properly interpret the general service provisions for municipal actions regarding real property. See Pa.R,Civ,P, 410, A scire facias sur municipal claim involves a lien upon real property. Shapiro v, Center Township, 159 Pa, Commw. 82, 87, 632 A.2d 994, 996 (1993) appeal denied, Center v, Shapiro, 537 Pa. 635, 642 A,2d 488 (1994). Pa,R.Civ.p. 410 distinguishes between liens upon real property and actions involving possession of said property ,29 A real property action involving a municipal lien is distinct from an action involving possession of real property. Claimant-Plaintiff misconstrued this distinction and improperly treated the facts of this case sub 27 Pa,R.Civ.P. 1032(1) provides in relevant part "that whenuver it appears by suggestion of the parties or otherwise that .., there has been a failure to join an indispensable party, the Court shall dismiss the action." 28 See infra part II.A.2. 29 Pa,R,Civ.P. 410(a) provides that "in actions J.nvolving title to, interest in, possession of, or charges or liena upon real property, original process shall be served upon tho defendmnt in the manner provided by Rule 400 et seq," 15 judice as an action for possession of Owner-Defendants I real property rather than a lien against said property, (a) CLAIMANT-PLAINTIFF HAS VIOLATED PA.R.CIV,P. 410(b) (1), THEREPORE TENANT-DEFENDANTS SHOULD 8B DISHISSBD WITH PREJUDICm In violation of Pa.R.Civ.p. 410, Claimant-Plaintiff improperly served tenants 1.n a property owned by Owner-Do!lfendants, Pa,R,Civ,P, 410(b) (1) provides that in actions "for possession of real property," process shall be served upon any person not named as a party who is found in possession of the said property,30 In this case sub judice, Claimant-Plaintiff is seeking a lien upon real property, therefore it has no right to harass Owner- Defendants' tenants, (b) CLAIMANT-PLAINTIFP HAS VIOLATED PA,R.CIV.P. 410(b) (2), THEREFORE TENANT-DEFENDANTS SHOULD 8B DlSHISSED WITH PREJUDICE In violation of Pa.R.Civ.P. 410, Claimant-Plaintiff has improperly joined Owner-Defendants' tenants to its writ of scire facias, Pa.R.Civ.P, 410(b) (2) provides that if possession of real property is sought, persons in possession of the property 30 Pa,R.Civ,P, 410(b) (1) p"Covides in part that "if in an action invol ving an into!lreat in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in. possession of the real property." 16 Mhall b~come defendants in the action,31 Claimant-Plaintiff is not seeking possession of Owner-Defendants I real property, rather it is seeking a lien upon uaid property, therefore Claimant-Plaintiff has no right to add Owner-Defendants' tenants to its writ of scire facias. Said harassment of Owner-Defendsnts' tenants showB a deliberate disregard for the rules practice in Pennsylvania. III. CONCLUSION CLAlMANT-PLAINTIFF'S WRIT OF SCIRI FACIAS SHOULD 8B STAYBD AND TINANT-DBFINDANTS DISNISSBD WITH PRBJUDICB In summary, Owner-Defendants respectfully suggest that Claimant-Plaintiff's untimely filing of its notice to plead on its writ of scire facias reflects a reckless disregard for the judicial determinations of the Court. Claimant-Plaintiff has plainly failed to conduct the tactual and legal inquiries required by the Rules of Civil Procedure.32 There is absolutely no justification for Claimant-Plaintiff's service of a notice to plead on its writ of scire facias, the day in~ediately after a full hearing on preliminary objections to Claimant-Plaintiff's scire facias sur municipal claim before the Honorable Judges Harold E. Sheely and J. Wesley Oler., Jr. Clearly, Claimant-Plaintiff's action illustrates 31 Pa.R,Civ.p, 410(b) (2) provides in part that "if the relief sought is possession, the person so served shall thereupon become a defendant in the action." 32 Claimant-Plaintiff recklessly violated Pa.R.Civ.p. 410 and 2232. 17 .. . ,..., , ~ ~ ... ,I , I o Ii , I' " .. , , II' " ,I. " o I 3, Tho foes claimed are based upon appropriate reBolutions lawfully adopted by Silver spring Township Authority (hereinafter "Authority") . 4. Tho Authority understood that the Premises was a single- fnmily dwelling and iBsued a sewer permit on Hovember 23, 1993 baaed upon that understanding. 5. On or about November 23, 1993, Owne~s paid to the Authority a tapping fee or $2,000.00 and an inspection fee of '200.00 based upon Owners' representation that the Premises was an existing single-family dwelling. 6. Soon after November 23, 1993, Owners were contacted by the Authority and informed that they had not been charged the lateral fee of $150.00. Owners promptly paid the $150.00 as requested, 7. On or about December 9, 1993, an inspection of the sewer connection by the Authority revealed that the Premises was a two (2) unit dwelling and not a single-family dwelling. LAW O,"CII 8NILIAKt:" . BRINN[MAN 8, By letter of January 26, 1994, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, the Authority informed Owners that an additional amount of $4,550,00 was due to the Authority because the Premises is a two (2) unit dwelling. -2- i "I " l,tj\_, ,.:1 'II \,,,", ~ ,:', ' " SIL VCR SPIUNG TOWNSHIP, AUTHORITY ,: ,.. .' .. '(I J!llllJlll.l'J'_A ," . ,. " '. , ., " JlnUlfY a., ~gg4 '.' Jtltlll "Qt;taiqu 76 Bilver crown Drive H8chln1cNburq, "^ 17066 'I, ..\ I ~ I, ,,) , I., I ~ .'. . .' '. ~ POlr Hr, Pot~eiq.r, " :., Aff dlQtluued At tho PQQQmllpf 16, 191J:J lIIe.Unll ot the Authority therq Will In qrrQr flll'd. on your .ewer pemU: (II... tor 6600 carUele pike, "inti. ~her. lire a IIpart~ente in th18 hQu.. you .hould hlv. been Qhaflled ,."QQ,OO lnsteAd ~t $a,360,00, Tho br.l~down 1. ae tQHoW"1 . " , . ,~ " a tlpplnq'tll' . fa,76Q,OO each . ,', " $5,600.00 ,10 1 In.peQUon to. . $allQ,OO .IQh " , . 200.00 TQt.l P"8 tor Connection . $15,700,00 ~Il. Alllount AlreadY'Pald . $2.:160.00 " A441tlQn.l ~qunt Due II $:1,:1150.00 Plull Reimbur'llllent component II' ~1.200.00 a component. '$600,00 OQQh 'J'OTAL iJUE .. ~4,tl50.00 I, Twq ..parat. oheok., one tor $3,3150,00 And one tpr ~l,aoo.oo will b. ne.dlld. It you have any queetions, ple.ee teel tree to contaot me. SinoerelY, Jam.. E, Hall A..ist, Code ~ntQrcem.nt , 6H5 C~rlble Pike . Mcch~nIc5hllrB, PA 17055 . (717) 766,0178. (717) 766-1696 fAX . ~ o " i! , , , II , , " '. o ., ~ N " " . i v. No. ~~-J~3~ civil Tu~m IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 95-3403 MLO TEIU1 1995 CIVIL ACTION - LAW MUNICIPAL LIEN SILVER SPRING TOWNSHIP AUTHORITY, Calmant JOHN M. POTTEIGER and LYNETTE F. POTTIEGER, Defendants HBl1. OF SCIRE FACIAS The Commonwealth of Pennsylvania to John H. Potteiger and Lynette F. Potteiger, Greetingl WHEREAS the Silver spring Township Authority, on the 26th day ot June, 1995 tiled its claim in our Court ot Common Pleas ot Cumberland County; at No. 95-3403, MLO Term 1995, tor the sum ot $4,550.00, with interest trom the 26th day ot June, 1995 tor sewer permit tees, against the following property situate in the Township of Silver Spring, Cumberland County, Pennsylvania I ALL THAT CERTAIN tract ot land inoluding improvements thereon known and numbered as 6600 Carlisle Pike, which is owned or reputed to be owned by you. AND WHEREAS, We have been given to understand that said claim is still due and unpaid, and remains a lien against the said property; NOW, you are hereby notified to file your atfidavit ot detense to said olaim, it detense you have thereto, in the ottice of the Prothonotary ot our said Court, within titteen Page 1 of 2 ~ " , o ; \,jol " " , , , o IHI,Vt:n 1lI'IIIIl" 'ruW"""IP /ll/'lItrlnl'l'Y 11418 ellll','''',1l '" I\fl HIWlllllllCnDUIlCl, 1'/\ 170'8 j!;1Sln>>lT_,l /HJIHJnpP,IIHl'f PFll1tIlT' '7J!;1Ji" rrnpnrty Lonnt Ion '\'o nn Cotlllt:> '"h,,' I rrnp'" I, Y OW"" 1"" IInlll'!, /I.,,, ,n"" ~ '1'0 I, . I ()" 'hl .1,4'" /: L(/'~'?L-V ;~ , SI/{'q{' j~tL'''- ,,1.1,(', /,1 . 0' /~u.!A d'L I ?(.I'"j>~_,_____,_. ~.... _. ~'_'__"___u'_'.""_"'____ . .., _..__,___JfJu.~().lk..,A>e ,/;~{-' r': .. (,... /,' -.__-.L,.L'.cIL L e.a" ,/2r: 5 ')' '1'0 I t:>phollo ,..../2./F,: t'~5(1~2_.__ The 8ppllc/lnl: A'I'<:'''A 1:0 n,lhnt'., 1:0 nIl l'II1nn nll,1 tn'Jlllnl:lolHl pnrl:nlnlng 1:0 the sower SYRl:om ns rt.lophltt hy flllvor Rprln'J 'l'owllnhlp nlld tho 1I11vor BprlwJ Towllshlp /lul:horlty, /lCtol' olle yortr Collowlng I:ho drttn of t'n'1I1t:>,~t Inll to tho Bow"r system, thl> I\uthority shnll mako An nnAlyrds of ndllAl, dlBchrtrga of 1I0llresldentlnl F:Btablishmellts, And rtcljust tho 'I'Applng roo prevlollAly colloctod, either upwnrd or downwArd, bAsed upon tho hlgho/lt 11<'I:IIrtl 'lllnrl:nr-rtlllll1nl dlrwhrtrgo during thnt period. If tho m'lAsured fl.ow Is grerttor thAn tho permitted (IIBchl!t:'ge, thl;' I\uthority ShAll artjllflt the Tnpp I n') roo UPWA I'd hnnod upon tho h Lghest nct.un 1 qunrl:er-annual dhchnrgll, 1'10 (no n,ljuf1l:mol11: Ahnll ho mnrJa or pllld After tho first year.'s I'II1Alysls os roqllire<l hl1relnnbove, In no ovcHlI:: shnll the Tapping rM be less I:hl'll1 $2,750,00. / \ - ... , ,'~' ' ))-ri /\PPLICIINT, '~"':";;f.:':...!~..____r:.__JJ (~ t~. ~~Jl.g1.lQJLJ'1l11 IlIIlPF.C'I'IOtl rF.F; I,^TEI1I\L COtlS'I'IlUC'I'lotl COS'I' ($150) .... I . , . . I , . , . , . . "a> CK) -1Z. ' I __/~. t:I~ ,y., (~~O()) ........... I . . . . . . , . . . . . . . . . DllJJf!L1..U $ " "'.--v',. ~)O EXIS'rING IMPnOVF.1J RF.SIDF:tlTII\L rROPF.n'I'Y ( 2,000)...... ./L:Q~. IMPI10VF.D PI10PEnTY Rp.~lt'onttnl ($,-, '150). I........................ lIonRr>nld"ntinl F.nl:lmnt(',j dnlly wnl:or consumpl:lon: 1.___.._.... gAll '-25) )( $'-,750" ,..........,. ~3~.OQ ,.'') ", t'...... 1.9.l'I)1L.UI"LI'~lP_.!t'L~Pj>J,,1g~N'J'...O!LQI'I'r.!l_Q'_UBI,J/\Hj:)ft, , , , . . . . . ".d:JC"n " COtlS'I'I1UC'I'ION llr.l~lntJIlSF.HEtlT corlrotlF.t1'1' (SF.rl\l1/1TE P/lYtlF.lI'I') ,.""".."", PElrmil: ISSII!ldl DBl:I!lI__JL 1~,3 b.?L......... /' I' (-" IIV:-" -~~'L!.I..L!/~:~~:J:...~: ~_L. ',.. . 1"1111\1 Inspection: nntor ...____(.!Jj}/j':J Dy: rL~~---,' ~ " ., " o ., , , , , ' i' il " ; " .. .. " " " u .1 BILVt;R SPRING 'l'OIINSIIIP I IN 'l'ItE COUHT OF COMMON PLEAS OF AUTHORI'rY, I CUMBERLAND COUNTY, PENNSYLVANIA Claimant-Pl~intiff I v. I NO. 95-3534 CIVIL 'l'ERM I JOHN M. PO'l"l'EIGER, l,'iNE'l'1'E I CIVrr. AC'l'ION - LAW F. POTTEIGER, owners- I Defendants 1 JEAN GUTIfOEIIR1,EIN, I MUNICIPAL LIEN DAVID HAC~FORD, JAMES BETZ, I JODI BETZ, I Defendants I TOI John M. potteiger 76 Crown Drive Mechanicsburg, PA 17055 and Lynette F. potteiger 76 Crown Drive Mechanicaburg, PA 17055 Donna ~. Hammaker, Esquire 1403 Melrose Avenue Chester, PA 19013-5702 DATE OF NOTICEI August 17, 1995 IMPORTANT NOTICE YOU HAVE NOT RESPONDED TO THE WRIT OF SCIRE FACIAS IN THIS MATTER. YOU ARE IN DEFAULT BECAUSE yOU HAVE FAII,ED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE yOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU DHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF ~OU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHO~E THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. court Administrator One courthouse Square carlisle, PA 17013-3387 (717) 240-6285 SNELBAKER , BRENNEMAN, P. C. LAW O"ICII SNILIAKI" . B~'HH'M~N ~'~ . BYl PhM;;t {{if:~qUire 44 W, Main Street Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Claimant- Plaintiff ~ " o , " " , , Q ~ VI , . municipal claim. In nJSpl1lH111 hll1'l!to, it it; hlll"t:>l', OIUmll~;D And DBCI~F.:J;:D that the llfonJmont.ioned Motion is ClRAN'n.:r, ^ proposed Order is attached hereto. In support of Owner-Datendants' Motion for Dismissal and Stay, tha following grounds ar.e averred I 1. Defendants, Jean Guthoehrlein, David Halford, and Jimmy and Jody Bet2aof have no inter.est in or title to the real property Bubject to Claimant-Plaintiff's writ of scire facias, therefore they should be dLsmissed with prejadice 2. Owner-Defendants' defense of a writ of scire facias is untimely during pendency of a jUdicial dete~ination of its underlying municipal claim, therefore Claimant-Plaintiff's writ of scire facias should be stayed. 3. Owner-Defendants have a right to a stay since Claimant- Plaintiff failed to state grounds for a lien against Owner- Defendants' real property under the Pennsylvania Municipal Claims and Tax Liens Act. 53 P.S. @ 7101 (1995) ("Municipal C.Iaims Act") . 4. Owner-Defendants have a right to a stay since Claimant- Plaintiff failed to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. @ 301 (1995) ("Municipal Authorities Act") . 2 " (a) Claimllnt-Plnlntiff 11,113 Violuted Pa ~ R ,C i v . p, 2 ~ J;). (b) 'I" I , I I I I , . . , , , , , ,I l:a (b) Clail1l.1llt-p]aintHf lIau Violated Pa,R,C!v,P, 2232(d) I. 1'1 I '11" II 1"'" I 12 (e) Tenant -De fendants Are Not Indispenaable partios I. I , , I I . . , I I I I I . I "'" I . I . I . . , " 14 :I. Tenant-Defendanta Were Improperly Served, Therefore They Should Oe Dlemisaed With Prejudice I.". I I I I . I . . . . . . . . . . . . I. I . . I , I , , " 15 (a) Cla imant - pla i nt iff. lias Violated Pa.R.Civ.P. 410 (b) (1) ......., I.... "'" 15 (b) Claimant-Plaintiff Haa Violated Pa.R,Civ.P. HO(b) (2) ....... I I.... I.... 16 III. CONCLUSION I CLAIMANT-PLAINTiFF'S WRIT OF SCIRE FACIAS SHOULD BE STAYED AND TENANT-DEFENDANTS DISMISSED WI'rH PREJUDICE I I . . . . I . . . . . . . I . . . . . . . t I . I . . . . . I . I . . . . . I . . . . . 17 BXHIBITS Exhibit QUA - Claimant-Plaintiff Municipal Claim (# 95-3403) Exhibl,t Two - Claimant-Plaintiff writ Of Scire Facias (# 95-3434) Exhibit Th~ - Owner-Defendants Preliminary Objections (# 95-3403) ~Jt Four - Claimant-Plaintiff Notice To Plead (# 95-3434) Exhibi.t.J:m - Claimant - Plaintif f Mot ion For Stay And Dismissal iii colll!llt\vely t."l.lftll't'ed to 11t! l'l'~J/ltfllt"/)uf'md<1lltt!"), 1 lit! filed by Claimllnt..Platntiff, Silvllr spdng 'rownllhip Authority ("Cl/limnnt- PJ/lintiff") . r. I~BQgyCTrON Clnimant-Plaintiff's notice to plead on ita writ of scire facias is so deficient that Owner..Defondants do not believe that even minimal factual and legal roseal'ch was done. a 'fherc is no justification for serving said notice to plead the d~y inm~diately after a full hearing on prelimindry objections to Claimant- Plaint. iff I S scire facias sur municipal claim before the Honorable Judges Harold S. Sheely and J. Wesley Oler, Jr.! Owner-Defendants 1 Claimant-Plaintiff's notice to plead was defective. Claimant- Plaintiff's notice incorrectly named additional party defendants I (1) David Halford, Jimmy and Jody Betz are the correct names of the joinded defendants. (2) Jean Guthoehrlein has not leasod the subJect premises from Owner-Defendants, nor are Owner-Defendants aware of any lease that ehe has signed for said premises. 2 Claimant-Plaintiff's service of itu notice to plead and its joinder of additional party defendants on its writ of scire facias violated Pa,R.civ.P. 410 and 2232. 3 Oral arguments on preliminary objections regarding Claimant- Plaintiff's scire facias sur municipal claim were heard on August 16, 1995. On August 17, 1995, Claimant-Plaintiff filed an untimely notice to plead its writ of scire facias, e.g. during pendency of a judicial determination of its underlying municipal claim. 2 maintaIn that ClaIlllilnt-l'lldntlff 1.'l~lJlo1ina pl'oGudul'i1lly cOnfUfllJdt (Claimant IhltJp. Mmn. at 9-1.0, 13-22) ,Inri no unaware of oxisting law that it is unrcauonilbly continuln\J to obl!lcura rhalr claar lugal rights by untilllel)' f~lings and obfuscation of the rcal issues beloro the court,S I88umBI Two issues are pr"'sllnted to the Court by the Claimant-Plaintiff's notice to pll!ndr (1) Whether service of I joinder of additional dl3fondants to a notice to plead on a writ of scire facias is timely, during pendency of a judicial determination as to the legal aufficiency and conformity to law of its underlying municipal claim/. (2) Whether tenants have a legitimate interest in 4 See discussion supra parts II ,A-B. contending that Claimant- Plaintiff's writ of scire facias should be stayed and that additional party defendants should be dismissed with prejudice. 5 The record discloses a veritable onslaught of writs, objections, briefs and notices relating to this case sub judice (totalling approximately ten in number) that appear to have done nothing more than protract this suit and which have accomplished little in the way of justice in the process. Owner-Defendants have made every t.!ffort to accommodate the scnmingly endless cascade of writs, objections, briefs and noticea submitted by Claimant- Plaintiff in its effort to procedurally confuse and increase Owner-Defendants' litigntion costs. 6 Claimant-Plaintiff's writ of scire facias is founded upon its municipal claim for increaoed newer connection fees against Owner-Defendants. Owner-DefendantlJ argued in their prel.iminary objections that they are not liable, as a matter of law, for Claimant- Plaintiff's increased sewer connection fees. (Owners Prelim. Obj. , 8-10). Owner-Defendants decl.ine--pcnd.ing a determination by the Court .in regards to their preliminary objections--to acknowledge Claimant-Plaintiffls demand for increased fees, 3 ligainl3t 'I'ellont -Dll("n<lonls) 11I1'lk Lllg to fll:Olllf":UtQ the lien to judymont (Ixhibit. 2) . ], OwnQr-Dafandants filed preliminary objections to Claimant- Plaintiff's acire facias sur munioipal claim on July 14, 1995, seeking to I3trikQ the claim (docketed at No. 95-3403) (Ixhibit. 3). 4, Claimant-Plaintiff filed responding preliminary objections to Owner-Defendants' preliminary objections on July 26, 1995 and on the same date filed a praecipe for oral argument. 5. The Court heard oral argument!! on the preliminary objections from Owner-Defendants and Claimant-Plaintiff on August 16, 1995. 6, Claimant-Plaintiff Gent a notice to plead its writ of scire facias (docketed at No. 95-3434) to Owner-Defendants and Tenant-Defendants on August 17, 1995 (Exhibit 4) . 7. Owner-Defendants filed a motion to dismiss Tenant-Defendants and to stay Claimant-Plaintiff's writ of scire facias during the pendency of preliminary objections against Claimant- Plaintiff.'/J municipal claim (docketed at No, 95-3434) on August 2B, 1995 (Exhibit. 5). 5 II. ^RGUME~r BUPPORTING A MOTION FOR STAY OF CLAlMANT-PLAINTIFF'B WRIT or BCIRB FACIAB AfflU2..UHlBIIMdl!'..TJJtJhID'.,-:I>IiUNDM').'OWJ7IURgJ'yI)J;.QJI Mor~ procedural confusion ia resulting from clai,lIIunt- plaintiff's effort to prosecute ita municipal lien to judgment prior to a determination by tho Court on the legality of its sciro facias sur municipal claim.' In fact, thoro is no justification for claimant-Plaintiff'a filing of ita notice to plead other than to harass Owner-Defendants and to inct.eaae their litigation costa, Claimant-Plaintiff filed tll'.!ir acire facias aur municipal claim against Owner-Defendants, who answered and defended it by filing preliminary objections. There was no noed for Claimant-Plaintiff to erect additional procedural hurdles and mazes that only serve to obscure Owner-Defendants' clear legal rights.' 8 Owner-Defendants decline to file affidavits of defense to Claimant-Plaintiff's writ of scire facias to strike their municipal claim until their non-statutory remedies have been exhausted. Thore is a distinction between responding to a writ of scire facias and responding by preliminary objection against a scire facias sur municipal claim. ~~piro v. Center Townshio, 159 Pa. Commw. 82, 88, 632 A.2d 994, 997 (1993) appea.I denied, ~nter v. Sha~iro, 537 Pa. 635, 642 A.2d 488 (1994). Owner- Defendants have elected to defend Claimant-Plaintiff's claim by preliminary objection. 9 As a matter of law, Owner-Defendants maintain in their preliminary objections that Claimant-PLaintiff's claims are legally deficientl (1) Municipalities cannot increase their seWRr connection fees after the date of application and acceptance of payment for a valid sewer permit. See Board of QQmm'rs v. Toll Bros" 147 Pa. Commw. 298, 607 A.2d 824 (1992), reh'g and appeal denied (1993); Hornstein Entera. v. TownshiD of Lvnn, 160 Commw, 72, 634 A.2d 704 (1993), reh'g and appeal den.led (1994) I (Owners Mem. 5-7). 6 A. JOINPER or ADDITIONAL DEFENDANTS TO A WRIT OF SCIRE FACIAS IS UNTIMELY DURING PENDENCY or A JUDICIAL DETERMINATION OF ITS UNDERLYING MUNICIPAL CLAIM, 'rHEREFORE CLAIM1\.NT-PLAIN'l'IPF' S WRIT or SCIRI PAcIAS SHOULD BE STAYED ',xamination of the doUnitions of a "writ of ucire facias" makes cloar that Claimant-Plaintiff1u writ .is merely a continuation of its municipal claim againut Owner-Dafend'lnts .10 A writ of soire facias is defined aSI A judicial writ, founded upon some matter of record, auch as a jUdgment11 .,. and requiring the person (2) Municipalities nwst accopt payment according to tho provisions of a valid Bower permit. E.g., 80e ElJ~ YL..~..n.um, 321 Pa. 504, 506, 184 A. 253 (1936) I fiwn v. ~ililing, 253 Pa. ~\67, 84 A. 390 (1912) I (Owners Mem. 7-10). (3) Municipal fees cannot adversely affect real property interests. West Y...._Jliunpton 'rowll!l.blD.~,UllJ;.iU::i Authori.l;:i, 1995 Pa, COnllnli. LEXIS 309 (June 25, 1995) I Raum v. Board of Supervisors, 29 Fa. Commw. 9, 370 A.2d 777 (1977) I (Owners Mem. 10-11). (4) Municipalities are liable, absont fraudulent misrepresentation, for their assossment errors. (Owners Mem. 11-12) I (Owners Resp. Mem. 4-7)/ E.g. UiruJa Coal & S\WD.1LC&. v. Talil.LCoii.~, 416 Pa. 97, 102, 204 A.2d 451, 454 (1964). 10 A scire facias sur municipal claim (docketed at No. 95-3434 and No, 95-3403) is defined all "a writ authorized to be issued as a means of enforcing payment of a municipal claim out of the real estate upon which such claim is a lien." Blacks Law Dictionary 1208 (6th ed. 1990). ---.--..----. ._---~_._---------- 11 The Pennsylvania Commonwealth Court in Shaoiro v. Cen~ Township, 159 Pa. Commw. 82, 67 n.3, 632 A,2d 994, 997 n.3 (1993) appeal denied, ~~1_~~.LQ, 537 Pa. 635, 642 A,2d 488 (1994), stated thatl A writ of scire facias is a mandate to tho sheriff, which recites the occasion upon which it issues, which directs the sheriff to make known to the parties named in the writ that they muat appear before the Court on a givon day, and which requires the defendant to appear and show cause why the plaintiff should not be permitted to take some step, usually to have advantage of a public record. 7 agaillllt whom it il3 Ilrnll'.lht to uhnw CillllJo1 why thn pill'l y bringIng it uhould lint havo i1dVilnta'J" of Il\lch record.... Tho mout cummon appJ.lc,ltion of thlll writ ill 11 pt"oeoss to revive 01 judgll1<tIlt, aftnr the] apse of 11 certain time, or on a change of pill:t.!,n3/12 or othorwJ.so to have llxecution of thll judgment/in wilJ.eh CiHJCS it is merely a continuo1tion of the original action, Under current tules Pfo1cticea in most states, U thill writ has been abolished. 4 Illilcka Law Dictionary 1208 (6th ed. 1990) . Clearly, the definition of a writ of scire facias illustrates the inappropriateness, of Claimant-Plaintiffls effort to prosecute its municipal claim to judgmunt and its joindl.!r of adliitional defend<lnts, dudng pendency of a jUdicial determination of its underlying nwnicipal claim. I! Claimant-Plaintiff'a notice to plead on its writ of scire facias dl.!monstrates complete procedural confusion by counoel. 12 Hearing on Owner-Defendants' Preliminary Objections, 08/17/95 before the Honorable Judges Harold E. Sheely and J. Wesley Oler, Jr. (statement of D. Hammaker, Esq., Attorney for Owner- Defendants, that writs of scire facias are generally used to revive a judgment or on change party defendants) . 13 Only eleven appellate decisions have mentioned writs of scire facias by Pennsylvania municipalities since 1985, indicating that use of this procedure practIce is uncommon in most counties. 14 Delaware is the on.Iy state, other than Pennsylvania, to use writs of. scire facias. See 30 Del.C. 5219 (1994) (providing for payment and recovery of commodity taxes on motor carriers) . 15 In this case sub judice, Owner-Defendants filed preliminary objections to Claimant-Plaintiff's scire facias sur municipal claim on July 14/ 1995 and appeared before the Honorable Judges Harold E. Sheely and J. Wesley Oler, Jr, on August 16, 1995 to show cause why Claimant-Plaintiff should not be permitted to execute upon its claim. There wa~ no justifiable reason for Claimant-Plaintiff to oerve Owner-Defendants and their tenants, with a notice to defend on August 17, 1995, other than harassment. 8 1. JUDICIAL DETERMINA'rIOH OF 'l'IlE LAWf'IJ/,NESS OF CLAIMANT- PLAINTIFF I S SCIRE FACIAS SUR MUNICIl'AL CI,AJM IS P~;NPIN(], THEREFORE ADDITIONAL DI!lFI!lNDAN'rs SIlOIJl,D No'r DB ADDED TO SAID WRIT DURING TillS PENDENCY Claimant-Plaintiff's writ of Deirn facina lu foundnd upon ita municipal claim, a judicial determl1l8t i,<lIl of tho lawfulnoas of which ia pending. In other words, the Cout..t is in tho procoss of determining whether Claimant-Plaintiff's scire facias sur municipal claim is warranted or authorized by the law.14 A judicial detennination is pending as to wll<~ther Claimant-Plaintiff's scire facias \IUr municipal claim has the qualifications prescribed by law or whether it is ~ontrat..y to and forbidden by the law.17 16 In Pennsylvania, a writ of scire facias is purely statutory. Shapi;(~L.y',-.(;~~hl.n, 159 Pa. COITI11\w. 82, 632 A.2d 994, 997 (1993) appe,l.I dellied, !.:~D_I:..-'lL'y,_Sbi:!l1J.r..Q, 537 Pa. 635, 642 A.2d 488 (1994). Pl'ocedures under the Municipal Claims Act are unusual in several respectst (1) All lawfully assessed or impolled municipal claims are liens, upon the property, that arise when lawfully imposed and assessed. 53 P,S. @ 7106(a) (1995) . (2) Assessment and imposition of the lien occurs without any form of hearing, Hearing on Owner-Defendants' preliminary Objections, 08/17/95 before the Honorable Judge13 Harold E. Sheely and J. WeslllY Oler, Jr. (statement of D. Hammaker, Esq" Attorney for Owner-Defendants citi,ng tihiiI2il:.2, 159 Pa. Commw. at 82, 632 A.2d at 997) . 17 Owner-Defendants maintain in their preliminary objections that Claimant-Plaintiff has failed to conform to the law and that, as a matter ot law, it has violated thel (1) Municipal Authorities Act, 53 P,S. @ 306 (b) (t) (1995), by increasing sewer connection fees after the date of application and unconditional acceptance of payment for a valid sewer pet.'mi,t. (Owners Mem. 5- 7) . (2) Municipal Claims and Municipal Authorities Acts by failing to accept payment purouant to the provisions of a valid sewer permit. (Owners Mem. '1-10), 9 A<::cordingly, jolnder of addit l.on.11 du(ond'lIItll at the cunent tltaga of thia oaBe sub judice is untimoly IJnd a cle,lr attompt to oba<::ure the substantive issues c\Il'rClntly pending before the COUi.t.lI 3. ONC. OWNER-DEFENDANTS WERE SERVED, CLAIMAlIT-PLAINTXFr MAY ONLY IrrKCTUATB THB JOINDER or ADDITIONAL PARTIBS BY PA.R.CIV.P. 2333(0) As a matter of law, once a party dnfundant is served, plaintiff may only effectuate the joinder of additional parties by PB. R. ci v. P. 2232 (c).19 LQw(~J:J!'eqeri(;JL:l'QWJltilJi!LY........!.;.ll:Jnrn!ll:, 518 (3) Municipal Authorities Act, 53 P.S. ~ 306(b) (h) (1995), by 130 S\lb/Jtantially increasing its sewer connection fees as to adversely affect real property interests. (Owners Mem. 10-11), (4) Municipal Claims Act, 53 P,S. @ 7440 (1995), by its errors in assessing, collecting and approving its sewer connection fees. (Owners Mem. 11-12). 18 substantive issues pending before the Court by preliminary objections includet (4) Whether Claimant-Plaintiff can increase its sewer connection fees after the date of application and payment for a Ilewer permit. (Ownera Mem. 5-7). Whether Claimant-Plaintiff has breached the terms of its sewer permit. (Owners Mem. 7-10). Whether Claimant-Plaintiff has adversely affected Owner-Defendants' property interests, (Owners Mem, 10-11) . Whether Claimant-Plaintiff can require Owner- Defendants to pay for its assessment errors. (Owners Mem . 11 - 12) . (1) (2) (3) 19 Pa.R,civ.P. 2232(C) provides in pertinent part that a court may' order the joinder of any additional indispnnsable parties to an actionl At any stage of an action, the Court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined. The Court in its dit;cretion may proceed in 10 Pli. 313, 326, /j~3 A.2d G07-, G09 (1988) ,20 Hinl:fl ClllillliJnt ,Illlllntiff joindod additional plIrl;y dl,fnndllntu by fllmply adding t.hll!t. IHlllloa to its notice to plINd--lIftor own'lr-DI.lf.endanto hnd already boen I3l3rved Claimant-Plaintiff's scil'tl facias Bur lIIunici.pl11 c1itirn, - its joind"r of Tenllnt-Defandllnts is impropor. B. TBNANTS CANNOT BE ENJOINED AS OEFEND~'S TO A WRIT or SCIRI FACIAS ARISING FROM A MUNICIPAL CLAIM AGAINST THEIR LANDLORD, THEREFORE TENANT-DEFENDANTS SHOULD BE DISMISSED WITH PREJUDICI Clllilllant-PlaintHf hns miojoincd 'I'enant-Defendanta to its writ of scire facias. 1. TeNANT-DEFENDANTS HAVB NO INTEREST IN OR TITLI TO THI RIAL PROPERTY SUBJECT TO CLAlMANT-PLAINTIFF'S WRIT OF SCIRI FACIAS, THEREFORE 'l'HEY SnOULD BE DISMISSID WXTK l'RlJUDICI Claimant-Plaintiff hao assorted no claim for relief against Tenant-Defendants as required by Pa,R.Civ.P. 2232. For the action although such person has not been made a party if jurisdiction over him cannot be obtained and he is not an indispensable party to the action. ,See 7 Goodrich Amram @ 2332(c) ~l.l, pp. 563-64/ See also Bupra part II.B,l. (a-c) contending that Tenant-Defendants are not indispensable parties. 20 Belle v. Cl1ieDDa, 659 A,2d 1035 (Pa. Super. Ct. 1995) I Paden v. Baker Concrete Con~~., 437 Pa. Super. 59, 62,648 A.2d 1227, 1228 (1994) rev'd, 58 A.2d 341 (Pa. 1995) / Yil.t.l:.!L.Y..t... Pacor. llliL., 352 Pa. Super. 335, 337-338, 507 A.2d 1258, 1259 (1986) I I,ondon v. ~rm.~n..liLJlul1Unq Bonding Co., 12 Phila. 554 (1985) . 11 approxim'ltely fifty yuurs, tho real PI"rI!lOl'ty /lllbjoct to Claimant- Plaintiff1a writ of udre fi!cIas hUll boun Ibltod in the CUlI1b<il'land county tax recorda as titled to the Potteiger family. Ownur- Defondants are the Bola and excluaive owneru of said property on the County tax records, no other parties have any intereBt in or title to the real property. Accordingly, Tenant-Defendants should be dismissed with prejudice from Claill1ant-Plaintiff's writ of scire facias. (a) CLAIMANT-PLAINTIFF HAS VIOLATKD PA,R,CIV,P. 2~3~(b), THYRBFORI TENANT-DEPENDANTS SHOULD 88 DISMISSWD WITH PRBJUPICB Since no claim for relief has been asuerted againet Tenant-Defendants,21 as required by Pa.R.Civ,p. Rule 2232(b) ,22 Tenant-Defendants should be dismissed with prejudice from Claimant- Plaintiff's writ of scire facias, (b) CLAIMANT-PLAINTIPP HAS VIOLATED PA.R.CIV.P. 2232(d), THBRBPORB TENANT-DBPENDANTS SHOULD 8B DISMISSBD WITH PRBJUDICB 21 Claimant-Plaintiff's joinder of Tenant-Defendants is reckless harassment. Claimant-Plaintiff knows, or should know, that it cannot assert any claim for relief from Owner-Defendants' tenants. 22 Pa.R.Civ.P. 2232(b) provides that "joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the Court whenever he has been miajoined or no claim for relief is asaerted against him in the action by any other party." 12 Pa.R.Clv.P. 2232(d) provideu the procedure to d~s",.!.sll defendants when th<l fact/J do not juatLfy their incluFlion.23 P.U1LY~.i1D.'2Jlt.QWILM!:l~.!L.69.JJ;I.illLLL~ilgJ.I.!l, 111 Pa. Buper. 125, 607 A.2d 297 (1992) i1ppOil.I donied, 533 Pa. 661, 625 A.2<1 1194 (19931, fllnl1.l1.Y1llnitLAJ.w..'h...-QL.ll.t..i1.tft, M.\1n.l;.i.lLll9!1IDtftlJlIYJJ ician~. Inc. v. State Employel~s-' Ret~r.~n!itllLJJQ.llnL 25 Pa. COl1lmw. 632, 641, 361 ".2r1 449, 455 (1976). Tenant-Deflmdants are nr)t J.illble jointly, severally or oeparately on the /Jcirc facias Sill' municipal claim against Owner-Defendants. H Regardless of the nature of the claimB that claimant-Plaintiff mOlY t;till contrive, it may not recover against Tenant-Defendants, said tenants are not r.esponsibla for Claimant-Plaintiff's assesoment errors.25 Tenant-Defendants cannot 23 Pa.R.Civ.P, 2232(b) provides thatl When a plaintiff joins two or more defendants and the evidence does notjustify a recovery against all of them, the court ahall enter a nonsuit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately, and the action shall continue and determine which of the remaining defendants are jointly, severally or separately liable with the same effect as though the defendants found to be liable were the only ones joined. As in other cases the court may enter judgment notwithstanding the verdict in favor of or against any of such defendants. 24 At the current stage of this case sub judice, tenants do not have occasion to show calise why their landlord should be required to make payments for services which their landlord is lawfully disputing. "The object of the writ of scire facias is ordinarily to ascertain the sum due on a lien of record and to give the defendant an opportunity to ahow cause why the plaintiff should not have eXl!cution." illlllD.iro v. Cent..lu;: Township, 159 Pa. Commw. 82, 87 n.3, 632 A.2d 994, 997 n.3 (1993) appeal denied, Qr~ShnDJ~, 537 Pa. 635, 642 A.2d 488 (1994). 25 Claimant-Plaintiff's joinder of Tenant-Defendants is frivolous, Claimant-Plaintiff knows, or should know, that it cannot allege 13 possibly Ilscurtllill the fileWl3r conned ion foea that are being disputed on Claimnnt-Plaintiff's scirc facias sur municipal claim against Ownllr-lJoflllldants. ,<]00 flbillllrJLY........!::.!1111ft.t...T2Wllllhitl, 159 pa. Cornmw. 62, 67 n.3, 632 A.2d ~)94, 997 11.3 (1993) appoal dell.led, ~.J1\;.!ll:"y"J.)haJlln2, 537 Pi!. 635, 642 fI.2d 466 (1994). (a) 'l'ENANT-Dl':PENDANTS ARB NOT INDISPENSAIlLB PAR'I'IIIlS, THEREFORE THEY SHOULD IlE DISMISSED WITH PREJUDICB The Pennsylvania Supreme COUl't hall defined an indispensablc party as one WhOfJe "rights are so connllcted with the claims of the litigants that no decree can be made between them without impairing such rights." !:;al!ll2.ilDilro v.J..;mnJ>y}vania Iiller.. ~, 656 A.2d 491, 493 (Pa. Super. Ct. 1995) quoting fQwell v. ,shepard, 361 Pa. 405, 412, 113 A.2d 261, 265 (1955).24 The absenr.e of an indispensable party deprives the Court of jurisdiction. Patwar.dhan v, Brab~nt, 294 Pd. Super. 129/ 439 A.2d 764, 785 (1962); Continental Bank v. 1k1.:I!liill, 25 Phi.1a. 80 (1992). See a.IRo Pa.R.Civ.P. 1032 (when indispensable party is not joined, court a single fact which demonetratee that said tenants have any intereat in or title to Owner-Defendants' real property. 26 E.g., ~~~, 436 Pa. Super. 151, 647 A.2d 542 (1994) appeal granted, 655 A.2d 515 (Pa, 1995) I QLi!nme Combustion, Inc. v. M~rgentime CQ.UL./ 406 Pa. Super. 620, 595 A.2d 77 (1991) appea.I dellied, Mill:g~nti.lJl!L5:QLP. v. GLinllM. Combustion.... ~/ 530 Pa. 644, 607 A.2d 254 (1992); fgl1UHY,iY~nia Ass'n of Rehabili~tion Facilities v. Foster, 147 Pa. Comrnw. 467, 606 A.2d 613 (1992) sunun. judgmellt granted, review dismissed, 159 Pa. Commw. 428, 633 A.2d 1248 (1993); ~elli v. Commonwealth, 146 Pa. Commw. 625, 606 A.2d 663 (1992); Grisbv v. Maior, 29 Phila. 572 (1994) I Continentql-Rftnk v. Berman, 25 Phila. 80 (1992) . 14 ahall dilll1liafl action).21 P,nt:Jnllnt 10\.lal iIllth<)dty tlnd the facts of this oase aub judico indicate that Ownor-Defondants' tennnta are /lot indillponsable J?lIl'tioa. U Tonant rLuhts will not bl! impnh'ed, unl'er any contt'ived factual situntion, by Clclirnant-rlailltiff's seire facias sur l1lunicipal claim a!]ainut Owner'Poflll1dants. 2. TBNANT-DEPENDANTS WERB IMPROPERl,Y SERVED, TIIBRBPORB 'l'HIlY SHOULD BB DISMISSED WITH PRBJUDICB Claimant-Plaintiff fails to properly interpret the general service provillions for nwnicipal actimlll regarding real property. See Pa.R.Civ.P. 410. A scire facias auI' municipal claim invol Ves alien upon reai property. illliUll.r-S1...Y~.\UJter TownshiI2, 159 POl. Commw. 82, 87,632 A.2d 994, 996 (1993) appeal denied, Center v, Shapiro, 537 Pa, 635, 642 A,2d 488 (1994), Pa.R.Civ.P. 410 distinguishes betweed lions upon real property and actions involving possession of said property .2' A real property action involving a municipal lien is distinct from an action inVOlving possession of real property. Claimant-Plaintiff misconstrued this distinction and improperly treated the facts of this case sub 27 Pa.R,Civ,p. 1032(1) provides in relevant part "that whenever it appears by suggestion of the parties or otherwise that ... there has been a failure to join an indispensable party, the Court shall dismiss the action." 28 See inEI'a part II,A,2. 29 Pa.R.Civ.p. 410(a) provides that "in actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided by Rule 400 ot seq, " 15 judice as 1:\1) I:\dtion for pOSllllsllion of OWllur-lJufelldants' rQal property ruther than a lion agRinat aaid proporty. (a) CLAIMANT-PLAINTIPP HAS VIOLATED PA,R.CIV.P. 410(b)(1), THEREPORI TENANT-DEPENDANTS SHOULD BI DISNISaED WITH PREJUDICI In violation of Pa.R.Civ,P, 410, Claimant-Plaintiff jmproperly served tenants in 11 property owned by Owner-Defendants, Pa.R.Civ.P. 410(b) (1) provides that in actions "for possession of real property," proceol! shall be served upon any person not named all a party who ia found in possession of the said property.30 In this case aub judice, Claimnnt-Plaintiff is aeeking a lien upon real property, therefore it has no right to harass Owner- Defendants I tenants. (b) CLAIMANT-PLAINTIPP HAS VIOLATED PA.R.CIV.P. 410(b) (2), THEREPORI TENANT-DEFENDANTS SHOULD BB DISNISSBD WITH PRBJUDICI In violation of Pa,R.Civ.P. 410, Claimant-Plaintiff has improperly joined Owner-Defendants' tenants to ita writ of scire facias. Pa.R.Civ.P. 410 (b) (2) provides that if possession of real property is sought, persons in possession of the property 30 Pa.R.Civ.P. 410(b) (1) prQvides in part that "if in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the real property." 16 shall become defendants in the aution.J1 Claimant-Plaintiff ia not seeking possession of Owner-Defendants' real property, rather it is seeking a lion upon said property, thereforo Claimant-Plaintiff has no right to add Owner-Defendants' tenants to ita writ of scire facias. Said harassment of Owner-Defendants I tenants shows a deliberate disregard for the t'lll.es practice in pennsylvania. III. CONCr,USION CLAIHANT-PLAINTIPF'S WRIT OF SCIRE FACIAS SHOULD DB STAYED AmL TENANT-DEPEtmAID'LQ.li!.M.li!1U11UUl'.l:l~ In summary, Owner-Defendants respectfully suggest that Claimant-Plaintiff's untimely filing of its notice to plead on its writ of scire facias reflects a reckless disregard for the judicial. determinationa of the Court. Claimant-Plaintiff has plainly failed to conduct the factual anQ legal inquiries required by the Rules of Civil Procedure. 32 There is absolutely no justification for Claimant-Plaintiff's service of a notice to plead on its writ of scire facias, the day immediately after a full hearing on preliminary objections to Claimant-Plaintiff's scire facias sur municipal claim before the Honorable Judges Harold E. Sheely and J. Wesley Oler, Jr. Clearly, Claimant-Plaintiff's action illustrates 31 Pa.R.Civ,P. 410(b) (2) provides in part that "if the relief sought is possession, the person so served shall thereupon become a defendant in the action." 32 Claimant-Plaintiff recklessly violated Pa.R.Civ.P. 410 and 2232. 17 SILVER BPHING TOWNSHIP AU'I'IIOIH'l"{ , Claimant I IN TilE COUR'l' OF COMMON PLEAS ot- I CUMBERLAND COUN'l'Y, PENNSYLVANIA I I MLD TF:RM 1995 I I NO. <'I,t- .]jlo.~ I I MUNICIPAL LIEN DOCKET VS, JOHN 1'1, Po'r'l'EIGER and LYNETrE F. POTTEIGER, Owners /iUNICIPAL CLAIM AND NOW, comes the Claimant, Silver spring Township Authority, by the chairman of the Board of the Silver spring Township Authority, who tiles the following claim! 1. The claim is filed against John 1'1, Potteiger and Lynetta F. Potteiger, owners, ("hereinafter "Owners") and all that certain tract of land including improvements thereon, owned by them and described as follows! 6600 Carlisle Pike Hechanicsburg, PA 17055 Tax Property Map No.! 18-1332 Parcel No.1 011 Assessment District: 38 ",':-' .: !i /'oJ ~~, (hereinafter "Premises"). . :~ l.~ '1 ... ._~,=, "~, ~ In ~ Q, 5C 2. c.a .." The claim is in the amount of $4,550.00 due and owing ~. ... UW o,,.cn SNILIAKr" . a"INNIMAN tor sewer permit fees and for which sum, with interest and costs, a lien is claimed against the Premises in accordance with the Municipalities Authorities Act of 1945, May 2, 1945, P.L. 382, 53 P.S. S 301, ~ ~., as amended and the Municipal Claims and Tax Liana Act, May 16, 1923, P.L. 207, 53 P.S. S 7101, It ~., as amended. 3, Tho foos olnimed are based upon appropriate rosolutions lawfully adopted by Silver spring Townnhip Authority (hereinafter "Authority") . 4, The Authority understood that the premisos was a single- family dwelling and issued a sewer permit on Novembor 23, 1~93 based upon that underatanding. 5, On or about Nov13mber 23, 1993, Ownol's l'aid tL) the Authority a tapping fee of $2,000.00 and an inspection fee of $200.00 based upon Ownors' repres~ntation that the Premises was an existing Bingle-family dwelling. 6. Soon after November 23, 1993, Owner.s were contacted by the Authority and informed that they had not been charged the lateral fee of $150.00. Owners promptly paid the $150.00 as requested. 7. On or about December 9, 1993, an inspection of the sewer connection by the Authority revealed that the Premises was a two (~) unit dwelling and not a single-family dwelling. LAW O,,,CII BNlLIA~I" . B~.NN."'AN 8, By letter of January 26, 1994, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference, the Authority informed Owners that an additional amount of $4,550,00 was due to the Authority because the Premises is a two (2) unit dwelling. -2- . I .. I SILVER SPRING TOWNSHIP AUTHORITY, calmant No. ~b-Jb3~ Civil T~rm I IN THE COURT OF COMMON PLEAS OF I CUMBERLAND COUN'rV, PENNSYLVANIA I I NO. 96-3403 MLD TERM 1996 I I CIVIL ACTION - LAW I MUNICIPAL LIEN I v, JOHN M. POTTEIGER and LYNETTE F. POTTIEGER, Defendants WRIT or SCIRE FACIAS The commonwealth of pennsylvania to John H. potteiger and Lynette F. potteiger, Greetingl WHEREAS the Silver spring Township Authority, on the 26th day of June, 1995 filed its claim in our court of Common pleas ot Cumberland county; at No. 95-3403, HLD Term 1995, for the sum ot $4,5~0.00, with interest trom the 26th day of June, 1995 for sewer permit tees, against the following property situate in the Township of siller spring, Cumberland county, Pennsylvania I ALL THAT CERTAIN tract ot land including improvements thereon known and numbered as 6600 carlisle pike, which is owned or reputed to be owned by you. AND WHEREAS, We have been given to understand that said claim is still due and unpaid, and remains a lien against the said property; NOW, you are hereby notified to file your affidavit of detense to said olaim, if defense you have thereto, in the oftice of the prothonotary of our said court, within fifteen Page 1 of 2 R ",yr." 01'" IIltl 'rUII/I""l1' /lII"'IIllJlITV 8415 c/l"~rO~R rr~R HIWII/ltlWIIIIU,HI, t/l 17055 JiiXlfA1HT 1. nmum ,l'/'HIH l'r PFl"ltl'r ,. C/.}.,7(1i' rrol'nrty (,'100 ~,ll)n To nr> 1"0111".,,,1 r>.I I """l'",.l'y ownnt' nil"",,,. /I,I,Irnn" ~ '1'01.' r 0.:1/" /L~"ibl-V ;'t- )1 A 'Q,r j;'ll'~"" _~1fJ{"H'__' ~j~~c ,f //. I /,~I 5"'5 "" .. .. d _.. .... _____.u__.____._... _0-< ._.....____....._.._._.._..._.. '''0' ,'H'_ _~1~0()_jl.At.-e/l.'/ e , . ~ __..._.../!t(,r:/l LcA. ./.?1'.1,-, To I 1:>1'1101'0 L;lffr.Ht.Y3Z_.., Tho "l'pllclll1t n'l"J;>r>n to n,thorn t:<l nl' t"1I1"n nl"l t"'Jlllntlolln perl:lllnln<J to till! sower sYAtem 111'1 nde,pl:lld hy flllvllr /1pl'III'1 'l'o\lIl""lp nlld tho rlilvor sprlll') Township hul:hority. I\ftlJr ono yellr fol lowing tho dnto of cOllJlnel:lrlll to tho Sowl'1r systom, thl:' hllthodty I'IhF!ll mnkll nil Iln,'lynla of nelliI'd, dlnchnrgo of 1I0IlresldontJ"J, Estnbllshmr.mts, nnd n'lJllst tho 'I'npplng foo provlouBty <:01 toded, either upwnrd or dlJwllIo,"rd, bnsod lIpOIl th", hlgh....lI: nchlnt 'jlln,.l:"r'nllllllnl dlschnr'lQ dlldllg thnt pedod. If tho mnoslIrcd fl,ow Is grcnter thnn tho portniHod dlnchArge, thl:' hllthority sho 11 ArlJ unt tho Tnpp lllg fol:' lll'wn I'd "nnnd upon t'hn highest netlln 1 qunrlp.r-1\1l11111l1 diPlchnrgn. 110 fno n'lJuAtmollt Ahnll hn mndo or pnid Aftar tho first yenr's ElI11l1ysls ns rO'lllirt'd hrtl:oll1nbl1ve. 111 110 OVOl1t shnll the Topping fl:'13 be less than $2,,/50.00. /' l_, -' ... ,') ")1("'i r.rrLlcr.tlT, ..L0;.r.~.2;;',-._.J~_.i1.~irz? P.QffIfJlQUQJLIU 1.h'rERhL COII~TIH}C'l'IOII c.:OEl'I' ($150) .,."..,....,.... _ ,7~'. OCJ ~~ ;y" -/..5a____ IIISPECTIOII fF;E ($~OO) ,.,....,..,......"......... nn J;Jj!l.J:fl.I EXISTING IHPROVF.D RESIOF:IITIhL tRoPER'rY ($2,000),...,. ~a". clO IMPROVED PROPERTY nr!s lrlOllt: I A 1 ($ ~ , '150) . . . . . . . . . . . . . . . . . . . . . . . . I . -----.. IIolln"n 1 <lm11: in I F.ntlmnted dnlly wn!:or cOl1sUmptiunl I.. ...._n... g n I / :! 2 5) )( $ 2 , '/50 n ....,.. .. .. . ~. OV -7-3-560'-"'-- ".Qj'IUi,J_UJl_..I'~lP_J!LM'J'.~XPl\tl'LQ!f..JU\T!l._Q1._.XP'SJJI\t!91l. . . . . . , . , .. 4~l.&L... l',~ COll1l'l'nUC'I'ION nr. I MnUns EMP-II'I' cotlrollEtl'r (flF.r^"^TF. PhYllF~II'I') .......,..,.... PElrmit ISSlIEldl Dntl! 1..__;!.J./;'~'p ,?'!.... ..... _. IIY:-',~~~J1/ ./.~/.(~':".,:.,<; ~L. fInAl Imlpectlonl !JAtOI h_._i'!?'/.')!.'!':; _..._._ By: r~'-~~--'-'---'" ~l$ltl'l.rI~^tE ..9L5IlliY.X~E I, PHILIP H. SPARE, ESQUIRE, horeby certify that I have, on the below date, cBused a true and corroct copy o( the foregoing Important Notice to bo sorvod upon the person and in the manner indicated below: FIRST C!,AmJ_.Hf\IL. POli'l'Ac;uLfREPAIlh_,AQmu;llJUD AS FOLLOWSt John M. Potteiger 76 Crown Drive Mechanicsburg, PA 17055 Lynette F. pottoiger 76 Crown Ilr! ve Mechanicsburg, FA 17055 Donna 1<, Hammaker, Esqu i re 1403 Melrose Avenue Chester, PA 19013-5702 David Hackford 6600 carlisle Pike Mechanicsburg, PA 17055 ,. Jean Guthoehrlein 6600 Carlisle Pike Mechanicsburg, PA 17055 James Betz 6600 Carlisle pike Apartment B M9~hllrlicf'h\lrq, ~A 171l5!\ Jodi Betz 6600 Carlisle pike Apartment B Mechanicsburg, PA 170515 LAW O"IC'. SHILIAKlft . SA.NN.....N ~~~~' . . .".,'.. P p. sp. r;~~quire SNELBAKER & BRENNEMAN, P. C. 44 West Main Street P. O. Box 318 Mechanicsburg, PA 17055 (717) 697-8528 Attorneys for Claimant- Plaint! ft ate: August 17, 1995 . " lIlunicipal claim. In nJ/Jponne h'Hllto, n I tl hl!rl'by OIWI,:JH-:IJ 1'11<\ DECHEI;:O that the afot'el11ent ionad Motion ia CJIIAN'I'lm. A lH'(lpoaod Order is attached hereto. In support of OWllar - l),)fQndnntl'l' Mot iun f.or lHsmissal and Stay, the following grounda lire riVEn-x'odl 1. Defendants, Jean Guthoehrlein, David Halford, (lnd Jimmy and Jody Betzaof have no interest in or title to the real property subject to Claimant-Plaintiffls writ of tlcire facian, therefore they ohould be diamiatled with prejudice 2, Owner-Defendants' defense of a writ of scire facias in untimely during pendency of a judicinl determination of its underlying municipal claim, therefore Claimant-Plaintiff's writ of scire facias should be stayed. 3. Owner-Defendants h~ve a right to a stay since Claimant- Plaintiff failed to state grounds for a lien against Owner- Oefendants' real property under the Pellnsyl vania Municipal Claims and Tax Liens Act, 53 P.S. @ 7101 (1995) ("Municip.d Claims Act") . 4. Owner-Defendants have a right to a stay since Claimant- Plaintiff failed to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. @ 301 (1995) ("Municipa.I Authori ties Act") . 2 . 5. OWIl''ll'-Oofelldnllta h.:JVo n d\Jht to 1I I.JUlY lJll<ltll" PlrlVllliot1l1 of the Municipal Clilims Act nnd tho Mllnicipol Allthorlt.ios Act beClBuse Claimant-Plnint!ff failed to cOllfol:m to their statutory provisions, Claimant-Pldintiff violated thel (a) Municipal Authorities Act, 53 P.S. ill 306 (b) (tl (1995), by increasi ng oewer connection fees after the date of application und unconditiollal acceptance of payment for a valid sewer pormi t . (b) Municipal Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisions of I!l valid sewer permit. (c) Municipal Authorities Act, 53 P.S. @ 306(b) (h) (1995), by so substantially increasing its sewer connection fees as to adversely affect real property interests. (d) Municipal Claims Act, 53 P.S. @ 7440 (1995), by its errors in asseosing, collecti.ng and approving its sewer connection fees. 6. Owner-Defendants have a right to a stay of Claimant- Plaintiff's writ of acire facias for its service was defectivel (a) Claimant-Plaintiff's notice to plead on its writ of scire 3 LAWRENCE E. WELKER PamUOHOfA.' CUMBEUA~D COU~TY CAUISLE. PA 170U I'll .<LA'.. cf S ".... I i1:.. /J J " J" 5k' rp ~ ~ r rr ,IJ' f' (f . (,I ." ',-, .::.-.r '11 (,IJ~J>';- ~ ',??A l?o!:.5'" /?pIcA /1/1/ {~bv~ .-".,.....'~_"'.......a.._.._.......,.~___~,~ '1""~lfl--'"""_JIl~T1I:r..".lIrw-."', 1, , - , ' t' ' " 1'* , '. ,. .. . \ , ,. J . " , '. if > " " , , " 'I I , , " \ , , I " '. ~.,,"t " ,.-.'-' ','.- .,. :~.~;r.....,...,... -':7."1--,_,~,:c;. ...:'.::':.1'" ""',,!w... I_ ii mUllicip"l dnil11. Tn ""llPO'lIlll lllHllto, i.t is hflrllby Olml,;r~~~D and DEcR8lo:JJ that. thll ,lfOl'(11110'ltionod Motion ia GI~AN'l'ED, A proposed Order is attachod horut.o. In aupport of Owner-Dofendllnta' Moti()/1 for DitJmillsal and Stay, t.he following grounds are aven-ed, 1, Dcfendanta, Jean Guthochrloin, David Halford, and Jimmy and Jody Betzaof have no intorest in or title to the real property aubject to Claimant-PlaintIff I s writ of scire facias, therefore they nhould b<:, dismissed with prejudice 2. Owner-Defendants' defense of a writ of scire f.acias is untimely during pendency of a judicial determination of. ita underlying municipal claim, therefore Claimant-Plaintiff'B writ of scire facias should be stayed. 3, Owner-DefendantB have a right to a atay since Claimant- Plaintiff failed to state grounds for a lien against Owner- Defendants' real property under the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. @ 7101. (1995) ("Municipal Claims Act") . 4. Owner-Defendants have a right to a stay since Claimant- Plaintiff failed to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. ~ 301 (1995) ("Municipal Authorities Act"). :2 . 11l\ltllt'..il1i11 ,'Ii1II11, III '''''I"llIllI/ h","ln, II' iu hll,-flby ()IUlImJ';O and DI!:CI~I~~~I) that thll Uf'I/'I'IIl'ml!lJn'1l1 Milt Inll III UIlAN'l'BD. A proposed Ol'dor In nU,:nd",,1 hllllll,), III UUPl>nl.t 1)[ OWllor-l)efelldants' Motion for Dilllllillu.ll nlld III.IIY, 1'11'1 rnlllJwill'J 'J/"o\llloln ilI'13 averred I 1. Dllfolll.lunl:lI, ,''''11I1 Olll,hlll/hrLrtln, p,lVld lIalfol'd, and Jimmy and ,Jody Ilrttv,lIllf hl\vO 111'1 Intnlllllt ill or title to the real property U\lbjr)(!t 1:0 CIIlIIlIUIII: 1'1,11111.11[111 writ of adro facias, thel:e[<ll'o thllY "h"\lld bo olilllllllllJod with projudice 2. Ownor-J)"t<lIl,I.'IIll:u' llnrflnllo of n writ of scire facias is \llltimoly durlll" pflllolllnl1Y of a judicial dotermination of its ullderlying Illunidpal clilim, therofore Claimant-Plaintiff's writ of lid)"., rnullltl uhlJ\lld be fJtayed. ), Owner-Defendilnts IHIV" 11 right to a stay Bince Claimant- Plaintiff failed to ul:uto grounds for a lion against Owner- Defondallts' real prnpllrty under the Pennsylvania Municipal Claimn /lnd TIIX I.intlu Ad, 53 P.S. @ '/101 (1995) ("Municipal Claima Act") . 4, Owner-Defl1tld,lntn have a right to a stay since Claimant- Plaintiff failed to utilte a claim under the pennsylvania MunldpllliticlI Authorities Act, 53 P.S. 111 301 (1995) ("Mullin/pill Authori ties Act") . 2 5, Owner-Dofondllnts IhlVe a l'ight to a stay under provisions of the Municipal Claims Act and tho Municipal Authoritiea Aot because Claimant-Plaintiff fniled to conform to their statutory provisions. Claimilnt-Plaintiff violated thel (a) Municipal Authorities Act, 53 P.S. ~ 306(b) (t) (1995), by increasing sewer connection fees after the date of application and unconditional acceptance of payment for a valid sewer permit. (b) Munici~al Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisi9ns of a valid sewer permit. (0) Municipal Authorities Act, 53 P.S. @ 306(b) (h) (1995), by so substantially increasing its sewer connection fees as to adversely affect real property interests. (d) Municipal Claims Act, 53 P.S. @ 7440 (1995), by its errors in assessing, collecting and approving its sewer connection fees. 6. Owner-Defendants have a right to a stay of Claimant- Plaintiff's writ of scire facias for its service lias defective I (a) Claimant-Plaintiff's notice to plead on its writ of scire 3 . municipal claim, In rO/lpollse het'oto, it in htJn~by OlllJEHEP and DECREED that the aforament ioned Mot ion i s GRAN'l'~,D. A propolled Order is attached hereto. In Bupport of Ownnr-Dofendants' Motion for Dismissal and Stay, the following grounds arc averredl 1. Defendants, Jean Guthoehrlein. David Halford, and Jimmy and Jody Bet2aof have no interest in or ti t le to the real property subject to claimant-Plaintiff's writ of scire faciall, therefore they should be dismissed with prejudice 2, Owner-Defendants' defense of a writ of scire facias is untimely during pendency of a judicial determination of its underlying municipal claim, therefore Claimant-Plaintiff's writ of scire facias should be stayed. 3. owner-DefendantA have a right to a stay since Claimant- Plaintiff failed to state grounds for a lien against Owner- Defendants' real property under the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. @ 7101 (1995) ("Municipal Claims Act") , 4. Owner-Defendants have a right to a Dtay since Claimant- Plaintiff failed to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. @ 301 (1995) ("Municipal Author! ties Act") . 2 5. Ownar-Defendnnta have a right to a stay under provisions of the Municipal Claims Act and the Municipal Authoritios Aot because Claimant-Plaintiff failed to conform to their statutory provisions. Claimant-Plaintiff violated thel (a) Municipal Authorities Act, 53 P.S. @ 30G(b) (t) (1995), by increasing sower connoction fees after the date of application and unconditional acceptance of payment for a valid sewer permit. (b) Municipal Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisions of a valid sewer permit. (c) Municipal Authorities Act, 53 P,S. " 306(b) (h) (1995), by so substantially increasing its sewer connection fees as to adversely affect real property interests. (d) Municipal Claims Act, 53 P.S. @ 7440 (1995), by its errore in assessing, collecting and approving its sewer connection fees. 6. Owner-Defendants have a right to a stay of Claimant- Plaintiff's writ of scire facias for its service was def.ective: (a) Claimant-Plaintiff's notice to plead on its writ of scire 3 municipal alaim. In n!/JponRl'J hOl'llto, it is hon'by OHDER~;D ilnd DECREED thL\t tho aforoll\entionod Motion is GHAN'I'F.:D. A proposed Order is attached hereto. In support of Owner-Defendants' Motion for Dismissal and Stay, the following grounds are ava~redl 1, Defendants, Jean Guthoahrlein, David Halford, and Jimmy and Jody Betzaof have no intereat in or title to the real property subject to Claimant-Plaintiff1s writ of scire facias, therefore they should be diamiased with prejudice 2, Owner-Defendanta' defense of a writ of scire facias is untimely during pendency of a judicial determination of its underlying municipal claim, therefore Claimant-Plaintiff's writ of acire facias ahould be stayed. 3, Owner-Defendants have a right to a stay since Claimant- Plaintiff fail~d to state grounda for a lien against Owner- Defendants' real property under the Pennsylvania Municipal Claims and Tax Liens Act, 53 P.S. @ 7101 (1995) ("Municipal Claims Act") . 4, Owner-Defendants have a right to a stay since Claimant- Plaintiff failed to state a claim under the Pennsylvania Municipalities Authorities Act, 53 P.S. @ 301 (1995) ("Municipal Authorities Act"). 2 5. Owner-Dofendants have 11 d~ht to 11 tltl1Y undor In-ovilJions of the Municipal Claims Act and tho Municipal Authorities Aot because Claimant-Plaintiff failod to confo~m to their statutory proviaions. Claimant-Plaintiff violatod thel (a) Municipal Authorities Act, 53 P.S. III 30G(b) (t) (1995), by increasing sewer connection fees after the date of application and unconditional acceptanc~ of payment for a valid flewer permit. (b) Municipal Claims and Municipal Authorities Acts by failing to accept payment pursuant to the provisions of a valid sewer permit. (0) Municipal Authorities Act, 53 P.S. @ 306 (b) (h) (1995), by so substantially increasing its sewer connection fees as to adversely affect real property interests. (d) Municipal Claims Act, 53 P.S. @ 7440 (1995), by its errors in assessing, collecting and approving its sewer connection fees. 6. Owner-Defendants have a right to a stay of Claimant- Plaintiff's writ of scire facias for its service was defective I (a) Claimant-Plaintiff's notice to plead on its writ of scire 3