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HomeMy WebLinkAbout98-4145 equity termBOROUGH OF CARLISLE, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANI''~'', V. ROBERT H. BARRETT, DEFENDANT 98.4145 EQUITY TERM FINAL DECREE AND NOW, this ~['~ ~ day of January, 2000, IT IS DECREED: (1) A default judgment is entered in favor of plaintiff and against defendant. (2) Judgment in the amount of $12,302.48 is entered in favor of plaintiff and against defendant for attorneys' fees. (3) Defendant is enjoined from performing any repairs or alterations to any of his properties without (a) first receiving certificates of appropriateness and building permits for such work, and (b) the approval of this court to perform the work in lieu of it being performed by the hereinafter appointed agent. (4) The Redevelopment Authority of the County of Cumberland is appointed agent to manage, for the purpose of bringing into compliance with Code and Historic District regulations, the following eight improved properties of defendant in the Borough of Carlisle: (1) 29 South East Street; (2) 35 South Bedford Street; (3) 37 South Bedford Street; (4) 122 East Liberty Avenue; (5) 25 North Bedford Street; (6) 134 East High Street; (7) 136 East High Street; and (8) 138 East High Street. 98-4145 EQUITY TERM (5) The agent shall post security in the amount of $ i.00 with the Prothonotary. (6) The following shall apply to the agem's perforn~ance of its duties: (a) it shall have joint possession and control of the eight improved properties and defendant shall not in any way interfere with or obstruct the agent or anyone acting under its direction in the performance of its duties; (b) for each property, it shall obtain two private bids itemizing the cost of repairs necessary to bring it into compliance with all Code and Historic District regulations; (c) as the bids are received for each property, it shall forward both bids to defendant at his mailing address of 134 East High Street, Carlisle, PA 17013, by regular mail and also by certified mail, return receipt requested and restricted delivery; (d) defendant shall have fifteen days from receipt of the certified mail, or ten days from the date of its return by the postal service as "unclaimed" or "refused," to deliver to the agent funds sufficient to pay for the amount of the lower bid; (e) upon receipt of such funds from defendant in the amount of the lower bid, it shall have the work performed; (f) should defendant fail to timely deliver such funds it may expend its own funds or it may arrange for financing for said work; 98-4145 EQUITY TERM (g) after completion of the work it shall send d~fendant by regular mail a statement of its costs; (h) should defendant default in making timely payment of the repairs and costs the agent shall apply for an order of court for authorization to sell such property under terms and conditions approved by the court, and for an award of its costs; (i) the costs can include: (1) any wages or other compensation of its staff and employees for time reasonably incurred in performing its duties; (2) invoices from any independent contractors retained to assist in the performance of its duties; (3) out-of-pocket expenses; (4) premiums for casualty and liability insurance for each property [unless defendant provides evidence of adequate coverages]; (5) any deductibles incurred in defending any claims arising out of the performance of its duties; (6) any and all interest incurred by agent under its line of credit with Keystone Financial Bank resulting from defendant's failure to make any payments in a timely manner; (7) any legal fees incurred by agent in the performance of its duties; and (8) any other reasonable costs. (j) should the proceeds of any sale exceed the cost of repairs and the agent's costs, the excess amount shall be retained and applied to repairs to other properties; (k) in the event the agent obtains financing it may, with court approval, 98-4145 EQUITY TERM arrange to place a mortgage lien on the premises; (l) the above procedure shall be followed with respect to each successive property although the agent may perform its duties concurrently on any of the eight properties; (m) the agent shall respect the rights of any tenants, and to the extent possible all work should be performed without disturbing their peaceable possession; (n) all tenants shall pay the agent all rent at the rate payable this date during the term of the performance of its duties, and the agent shall apply such rent to property repairs as authorized by this order; (o) upon completion of its duties, the agent shall file an accounting with the Court as to all funds received and expenditures made; (p) any funds remaining with the agent at the time of such accounting shall be distributed to defendant; (q) defendant may file exceptions to the accounting; (r) the agent may seek a judgment against defendant for any deficiency in the amount paid for all repairs and all of its costs; (s) the agent may petition to amend this order if necessary or desirable to effectuate its purpose. (7) Defendant shall within seven days of the date of this order provide keys for all properties to agent. 98-4145 EQUITY TERM (8) If defendant does not provide keys to the properties to agent, the agent may make forced entry into such property and change the locks. (9) Within seven days of the date of this Order, defendant shall provide to agent copies of all current written leases as well as copies of any casualty and liability policies in effect, which policies shall be amended to name agent as an additional insured thereunder. (10) Defendant shall hold agent harmless from any and all claims, costs, and expenses incurred by it in the proper performance of its duties. (11) Upon application of plaintiff, the Court will consider an award of any additional attorney fees incurred. (12) This court retains jurisdiction in equity for the en~:~me~ of this order. By thc~Cou/r~", / Edgar B. Bayley, J. Edward L. Schorpp, Esquire Solicitor for the Borough of Carlisle Robert H. Barrett, Pro se 134 East High Street Carlisle, PA 17013 :saa BOROUGH OF CARLISLE, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA Vo ROBERT H. BARRETT, DEFENDANT 98-4145 EQUITY TERM IN RE: JUDGMENT OF DEFAULT OPINION AND FINAL DECREE Bayley, J., January 14, 2000:-- On July 22, 1998, plaintiff, the Borough of Carlisle, filed a complaint in equity against defendant Robert H. Barrett. Alleging that Barrett is the owner of eleven properties in the historic district of the Borough of Carlisle, eight improved and three unimproved, the Borough sought the following equitable relief: A. That an agent be appointed to manage Barrett's eleven properties within the historic district in order to bring the properties into compliance with the code and historic district regulations; and B. That an injunction issue against Barrett prohibiting him from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; and C. That the Borough be awarded its reasonable attorneys fees in this action, and all previous actions, between the parties; and D. Such other equitable relief as the Court deems appropriate under the circumstances. (Emphasis added.) For years defendant has refused to comply with the provisions of the Carlisle Historic District ordinance and bring his properties into compliance with the Borough's BOCA Code. He has unsuccessfully challenged the regulations in the Historic District ordinance. Barrett v. Borough of Carlisle, 707 A.2d 250 (Pa. Commw. 1998), petition 98-4145 EQUITY TERM for allowance of appeal denied 555 Pa. 714 (1998). On October 7, 1999, defendant was adjudicated in civil contempt for failing to comply with an order of June 3, 1999, that required him to answer interrogatories and produce documents. Defendant was committed to the Cumberland County Prison on October 13, 1999, with a condition of purge that he answer the interrogatories and produce the documents required by the order of June 3, 19997 When defendant continued to fail to comply with the discovery order, he was released from prison on November 22, 1999, and the following order was entered supported by a written opinion which is incorporated herein: (1) If defendant fails to respond completely to the interrogatories and production of documents required by this court's order of June 3, 1999, not later than Wednesday, December 1, 1999, the following relief will be ordered: (a) a default judgment will be entered in favor of plaintiff and against defendant; (b) an agent will be appointed to manage defendant's eleven properties within the Historic District of the Borough of Carlisle in order to bring those properties into compliance with the Code and Historic District regulations; (c) an injunction will be issued prohibiting defendant from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; (d) the Borough will be awarded reasonable attorney fees in this action; (e) a further hearing will be conducted for the issuance of ~ Defendant had previously been imprisoned on civil contempt between July 7 and August 17, 1999, for failure to allow entry for inspection of the eight improved properties. He was released from prison when he finally complied with that requirement. -2- 98-4145 EQUITY TERM additional equitable relief necessary to effectuate the afores~i~ provisions. (2) Defendant is released from his commitment to the Cumberland County Prison pursuant to the orders of October 7 and 13, 1999. Defendant still did not in any way respond to the interrogatories and production of documents required by the order of June 3, 1999. A further hearing was conducted on December 30, 1999, for the purposes of framing a final decree. Pa. Rule of Civil Procedure 1511 regarding actions in equity, provides: (a) The prothonotary, on praecipe of the plaintiff, shall enter a judgment by default against the defendant for failure to plead within the required time to a complaint which contains a notice to defend. In all other cases of default or of admission the judgment shall be entered by the court. (b) In all cases, the court shall enter an appropriate final decree upon the judgment of default or admission and may take testimony to assist in its adjudication and in framing the decree. (Emphasis added.) As outlined in the opinion in support of the order of November 22, 1999, the Borough of Carlisle, since 1993, has repeatedly prosecuted defendant for BOCA Code violations. Despite numerous convictions, some of which were unsuccessfully appealed by defendant to the Commonwealth Court of Pennsylvania, defendant has not brought his eight improved properties into compliance with the BOCA Code. We therefore will appoint an agent and vest it with authority to bring defendant's eight improved properties into compliance with the BOCA Code, and provide a means -3- 98-4145 EQUITY TERM whereby the cost of doing so and the agent's costs shall be paid? FINAL DECREE AND NOW, this ~ t,{, I---- day of January, 2000, IT IS DECREED: (1) A default judgment is entered in favor of plaintiff and against defendant. (2) Judgment in the amount of $12,302.48 is entered in favor of plaintiff and against defendant for attorneys' fees. (3) Defendant is enjoined from performing any repairs or alterations to any of his properties without (a) first receiving certificates of appropriateness and building permits for such work, and (b) the approval of this court to perform the work in lieu of it being performed by the hereinafter appointed agent. (4) The Redevelopment Authority of the County of Cumberland is appointed agent to manage, for the purpose of bringing into compliance with Code and Historic District regulations, the following eight improved properties of defendant in the Borough of Carlisle: (1) 29 South East Street; (2) 35 South Bedford Street; (3) 37 South Bedford Street; (4) 122 East Liberty Avenue; (5)25 North Bedford Street; (6) 134 East High Street; (7) 136 East High Street; and (8) 138 East High Street. 2 The Borough sought authority for the agent to sell defendant's three unimproved properties to raise money to be applied for these purposes. We do not believe we have authority in equity to enter such an order pursuant to the relief that can be granted in this type of case as set forth in Borough of Kennet Square v. Lal, 165 Pa. Commw. 573 (1994). The three unimproved properties do not contain BOCA Code violations. The Borough however, may take any money judgment it has against defendant and execute against his property. -4- 98-4145 EQUITY TERM (5) The agent shall post security ir~ tqa amount of $1.00 with the Prothonotary. (6) The following shall apply to the agent's performance of its duties: (a) it shall have joint possession and control of the eight improved properties and defendant shall not in any way interfere with or obstruct the agent or anyone acting under its direction in the performance of its duties; (b) for each property, it shall obtain ~vo private bids itemizing the cost of repairs necessary to bring it into compliance with all Code and Historic District regulations; (c) as the bids are received for each property, it shall forward both bids to defendant at his mailing address of 134 East High Street, Carlisle, PA 17013, by regular mail and also by certified mail, return receipt requested and restricted delivery; (d) defendant shall have fifteen days from receipt of the certified mail, or ten days from the date of its return by the postal service as "unclaimed" or "refused," to deliver to the agent funds sufficient to pay for the amount of the lower bid; (e) upon receipt of such funds from defendant in the amount of the lower bid, it shall have the work performed; (f) should defendant fail to timely deliver such funds it may expend its own funds or it may arrange for financing for said work; -5- 98-4145 EQUITY TERM (g) after completion of the work it shall send defer~dant by regular mail a statement of its costs, (h) should defendant default in making timely payment of the repairs and costs the agent shall apply for an order of court for authorization to sell such property under terms and co,qditions approved by the court, and for an award of its costs; (i) the costs can include: (1) any wages or other compensation of its staff and employees for time reasonably incurred in performing its duties; (2) invoices from any independent contractors retained to assist in the performance of its duties; (3) out-of-pocket expenses; (4) premiums for casualty and liability insurance fol' each property [unless defendant provides evidence of adequate coverages]; (5) any deductibles incurred in defending any claims arising out of the performance of its duties; (6) any and all interest incurred by agent under its line of credit with Keystone Financial Bank resulting from defendant's failure to make any payments in a timely manner; (7) any legal fees incurred by agent in the performance of its duties; and (8) any other reasonable costs. (j) should the proceeds of any sale exceed the cost of repairs and the agent's costs, the excess amount shall be retained and applied to repairs to other properties; (k) in the event the agent obtains financing it may, with court approval, -6- 98-4145 EQUITY TERM arrange to place a mortgage lien on the premises; (I) the above procedure shall be followed with respect to each successive property although the agent may perform its duties concurrently on any of the eight properties; (m) the agent shall respect the rights of any tenants, and to the extent possible all work should be performed without disturbing their peaceable possession; (n) all tenants shall pay the agent all rent at the rate payable this date during the term of the performance of its duties, and the agent shall apply such rent to property repairs as authorized by this order; (o) upon completion of its duties, the agent shall file an accounting with the Court as to all funds received and expenditures made; (p) any funds remaining with the agent at the time of such accounting shall be distributed to defendant; (q) defendant may file exceptions to the accounting; (r) the agent may seek a judgment against defendant for any deficiency in the amount paid for all repairs and all of its costs; (s) the agent may petition to amend this order if necessary or desirable to effectuate its purpose. (7) Defendant shall within seven days of the date of this order provide keys for all properties to agent. -7- 98-41,45 EQUITY TERM (8) if defendant does not provide keys to the properties to agent, the agent may make forced entry into such property and change the locks. (9) Within seven days of the date of this Order, defendant shall provide to agent copies of all current written leases as well as copies of any casualty and liability policies in effect, which policies shall be amended to name agent as an additional insured thereunder. (10) Defendant shall hold agent harmless from any and all claims, costs, and expenses incurred by it in the proper performance of its duties. (11) Upon application of plaintiff, the Court will consider an award of any additional attorney fees incurred. (12) This court retains jurisdiction in equity for the enforcement of this order. By the Court, Edward L. Schorpp, Esquire Edgar B. I~a~Y,-J~.i Solicitor for the Borough of Carlisle / Robert H. Barrett, Pro se 134 East High Street Carlisle, PA 17013 :saa -8- IN TItE COMMONWEALTH COURT OF PENNSYLVANIA v. No. 423 C.D. 2000 SUBMITTED: May 12, 2000 ROBERT H. BARRETT, Appellant BEFORE: HONORABLE DORIS A. SMITH, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE WILLI.AM J. LEDERER, Senior Judge C) ::::~ OPINION NOT REPORTED r~ ~5".;:' MEMORANDUM OPINION ' BY SENIOR JUDGE LEDERER FILED: August 23, 2000 The issues presented are whether the Court of Common Pleas of Cumberland County (trial court) abused its discretion by entering a default judgment against Robert H. Barrett (Barrett) or in framing the content of the amended final decree. We hold that Barrett waived the issue of whether the trial court abused its discretion in entering a default judgment by not raising the issue before us, and the trial court did not abuse its discretion in framing the content of the amended final decree. Thus, the order of the trial court is affirmed. The relevant facts of this case are as follows. On July 22, 1998, the Borough of Carlisle (Borough) filed a complaint in equity against Barrett, the owner of eleven properties in the historic district of the Borough. The complaint was the result of years of refusal by Barrett to bring his properties into compliance with the Borough's BOCA Property Maintenance Code (Code) and Historic District regulations. The complaint avers that, commencing in 1992, the Borough cited Barrett on a continuous basis for well over one hundred and seventy (170) Code violations. Barrett had also unsuccessfully challenged the regulations in the Historic District Ordinance. See Barrett v. Borough of Carlisle, 707 A.2d 250 (Pa. Cmwlth. 1998), petition for allowance of appeal denied, 555 Pa. 714, 724 A.2d 350 (1998). On October 7, 1999, Barrett was adjudicated in civil contempt for failing to comply with the trial cour1's order of June 3, 1999, which required him to answer interrogatories and produce documents. As a result, Barrett was committed to the Cumberland County Prison on October 13, 1999, with the condition that he might purge his contempt by complying with the order of June 3, 1999.~ When Barrett continued to fail to comply with the discovery order, he was released from prison on November 22, 1999, and the following order was entered by the trial court: (1) If defendant fails to respond completely to the interrogatories and production of documents required by this court's order of June 3, 1999, not later than Wednesday, December 1, 1999, the following relief will be ordered: (a) a default judgment will be entered in favor of plaintiff and against defendant; (b) an agent will be appointed to manage defendant's eleven properties within the Historic District of the Borough of Carlisle in order to bring those ~ Barrett was also imprisoned for civil contempt between July 7 and August 17, 1999, for failure to allow entry for inspection of the eight improved properties. He was released from prison when he finally complied with that requirement. 2 properties into compliance with the Code and Historic ~ . District regulations; (c) an injunction will be issued prohibiting defendant from performing any repairs or alterations to any of his properties without first receiving certificates of appropriateness and building permits for such work; (d) the Borough will be awarded reasonable attorney fees in this action; (e) a further hearing will be conducted for the issuance of additional equitable relief necessary to effectuate the aforesaid provisions. (2) Defendant is' released from his commitment to the Cumberland County Prison pursuant to the orders of October 7 and 13, 1999. Barrett continued to ignore the trial court's June 3, 1999 order that he respond to the request for interrogatories and production of documents. On December 30, 1999, a hearing was conducted for the purposes of entering a final decree. On January 14, 2000, the trial court entered default judgment against Barrett and in favor of the Borough. The trial court filed an amended final decree on January 24, 2000 granting the Borough the equitable relief it sought in its complaint, including the appointment of an agent to manage the eight improved properties owned by Barrett for the purpose of bringing those properties into compliance with Code and Historic District regulations. The amended final decree also awarded attorneys' fees against Barrett and in favor of the Borough. Barrett then filed an appeal with this Court. On appeal,2 Barrett, acting pro se, does not argue that the trial court abused its discretion in entering the default judgment against him. Instead, he 2 Our review in equity actions is limited to a determination of whether the thai court's findings of fact are supported by substantial evidence, whether an error of law has been made, or (Footnote continued on next page...) 3 argues the underlying merits of the Borough's complaint against him. Barrett also argues that the final amended decree was not based on substantial evidence and that it violated his constitutional rights. The trial court entered a default judgment against Barrett as a sanction for Barrett not complying with a discovery order. The decision to open a default judgment is left to the sound discretion of the trial court which must determine that: (1) the petition to open was promptly filed; (2) there was a reasonable excuse for the failure to comply; and (3). a meritorious defense is shown. Borough of Kennett Square v. Lal, 645 A.2d 747 (Pa. Cmwlth. 1994). In the case at bar, Barrett never filed a petition to open the default judgment with the trial court. Nor does he argue on appeal that the trial court abused its discretion by entering the default judgment. Issues to which an appellant develops no argument and cites no authority are waived. Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996). Thus, the issue as to whether the trial court abused its discretion in entering the default judgment is waived. Barrett does argue that the final amended decree issued by the trial court results in a constitutional "taking" of his property. In Borough of Kennett Square, however, this Court approved a similar remedy to force a property owner to bring his property into compliance with the borough's housing ordinance. We held that where an owner of an apartment complex receives hundreds of citations for violating the borough's housing ordinances, remedies at law are inadequate to insure the ordinances' enforcement and, thus, it was appropriate for the trial court (continued...) whether the trial court abused its discretion. King v. Township of Leacock, 552 A.2d 741 (Pa. Cmwlth. 1989). 4 to provide equitable relief in the form of an appointment of an agent to manage the apartment complex. In the case at bar, the trial court clearly did not abuse its discretion by entering the final amended decree. The record is clear that Barrett is unwilling to cooperate with the Borough and bring his property into compliance with the Borough's codes and ordinances. Barrett was put on notice as to what would be the result of his continued disregard of the trial court's order and was given more than ample opportunity to comply with both the Borough and the trial court's reasonable requests. The final amended decree allows Barrett to retain ownership of this property and ensures that all properties will be brought into compliance. Barrett's peripheral challenges to the final amended decree are without merit. Accordingly, the order of the trial court is affirmed. WILLIAM J. LEDERER, Senior Judge 5