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HomeMy WebLinkAbout2001-4361 Municipal Lien and 2004-1236 Civil MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 01-4361 MUNICIPAL LIEN TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, Owners MONROE TOWNSHIP, Claimant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 04-1236 CIVIL TIMOTHY R. AUGSBURGER and JANEL C. AUGSBURGER, Owners IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS, 1. In this case, Monroe Township has appealed our order of March 9,2005, wherein we granted, in part, the motion of Timothy and Jane! Augsburger to strike/open a judgment. Specifically, we struck from the Township's judgment more than $5,000 which was the Township's claim for attorneys' fees. The Township has appealed. Litigation between these parties goes back to July 2001 when Monroe Township filed a municipal lien in the amount of$3,000 against the Augsburgers. The amount of the lien constituted a sewer connection fee for the Augsburgers' real estate and dwelling home located at 1288 Boiling Springs Road, Boiling Springs, Pennsylvania. The Augsburgers filed a petition to strike Monroe Township's lien. A hearing was held and this court entered an order on June 5, 2002, denying the petition to strike. The Augsburgers appealed our order. An opinion was filed on August 7, 2002, pursuant to Pa.R.A.P. 1925. The core of our opinion read as follows: 01-4261 M.L.D. 04-184 CIVIL Thus, the issue before the court is whether the Augsburger house is within two hundred feet of the sewer system. Another question is presented by the Augsburgers; namely, whether the distance of two hundred feet is the distance between the sewer lateral and the principle building or the sewer line and the principle building? While there is an argument that the lateral is part of the sewer system for the purposes of the ordinance, we need not, in the end, contend with this issue. This is because, even assuming that the main sewer line must come within the two hundred feet, this requirement has been met. Ronald E. Stephens, qualified as an expert in engineering and surveying for the purposes of this case, conducted measurements between the sewer system and the Augsburger home. According to his testimony, the main sewer line is one hundred ninety-eight feet and nine inches away from the Augsburger house. In order to determine the location of the main sewer line, Mr. Stephens used the "as built" drawings. An as built drawing is one which indicates the final location of the sewer system as placed in the ground. Nothing short of digging to expose the sewer line could resolve this case to a mathematical certainty. Nonetheless, we have no reason to doubt the accuracy of the as built drawings and will rely on them in reaching our conclusion in this case. Our decision was affirmed by the Commonwealth Court in a memorandum opinion written by Judge Leadbetter and dated June 3,2003. The Supreme Court of Pennsylvania declined to hear the matter. On March 24, 2004, the Township filed a Writ of Scire Facias Sur Municipal Claim for the sum of $3,000 with interest and penalties together with costs "including attorneys' fees." The Writ was served on March 30,2004. On or about April 2, 2004, Timothy Augsburger went to the offices of the Monroe Township Municipal Authority with the intent to pay the outstanding balance on the municipal lien filed against his and his wife's property. Upon 2 01-4261 M.L.D. 04-184 CIVIL learning of the amount claimed for attorneys' fees, he did not make the payment as intended. On May 26, 2004, the Augsburgers filed a motion to strike/open judgment. This served to frame the issue with respect to the question of whether reasonable attorneys' fees had been imposed in this case. The bulk of the attorneys' fees in this case have been incurred in connection with the litigation involving the initial assessment of the sewer connection fee. This involved proceedings in this court as well as in the appellate courts. The Township has taken the position that this litigation was designed solely to harass the Monroe Township Municipal Authority and to delay the owners' responsibility to pay the connection fee. They have also referred to the Augsburgers' contentions as "frivolous." Neither this court nor the Commonwealth Court, however, expressed the view that the Augsburgers' position was frivolous. The case of Township of Springfield v. Thomas, 645 A.2d 359 (Pa.Cmwlth. 1994) stood for the proposition that there was no authority under the law to include attorneys' fees in connection with collection services involving municipal sewer liens. No doubt, as a reaction to this case, the law was changed to expressly allow for the collection of attorneys' fees. 53 Pa. C. S.A. 7106 now provides for the collection of "fees incurred in the collection of any delinquent account, including reasonable attorneys' fees." The collection of attorneys' fees is tempered by the language in subsection (a. 1): (a. 1) It is not the intent of this subsection to require owners to pay, or municipalities to sanction, inappropriate or unreasonable attorney fees, charges or expenses for routine functions. Attorney fees incurred in the collection of any delinquent account, including municipal claims, municipal liens, taxes, tax claims and tax liens, shall be in an amount sufficient to compensate attorneys undertaking collection and representation 3 01-4261 M.L.D. 04-184 CIVIL of a municipality or its assignee in any actions in law or equity involving claims arising under this act. A municipality by ordinance, or by resolution if the municipality is of a class which does not have the power to enact an ordinance, shall adopt the schedule of attorney fees. [1] Where attorney fees are sought to be collected in connection with the collection of a delinquent account, including municipal claims, municipal liens, taxes, tax claims and tax liens, the owner may petition the court of common pleas in the county where the property subject to the municipal claim and lien, tax claim and lien or taxes is located to adjudicate the reasonableness of the attorney fees imposed.... 53 Pa.C.S.A. 7106(a.l). The narrow question posed by this case is whether the attorneys' fees sought were "incurred in the collection of any delinquent account." In this case, the Augsburgers initially questioned the validity of the lien against their real estate. They raised a very real issue concerning whether or not, given the distance of their home from the sewer line, they were required to connect. In the end, we gave the Township the benefit of the doubt and concluded that the Augsburgers were close enough to the sewer line to require connection: albeit by inches. We were upheld on appeal. Having lost the battle with respect to the validity of the lien, Mr. Augsburger went to the offices of the Township intending to pay what he owed. We do not agree that the Augsburgers, up until that time, had acted in bad faith nor that their opposition to the imposition of the lien was unreasonable. The Township, in essence, posits that legal fees incurred in defending the validity of a lien equate to legal fees incurred in the "collection of a delinquent account." We do not believe that this accurately reflects legislative intent. [1] The Township has produced correspondence from other municipalities indicating that its attorneys' fees comport with those customarily charged in this area. The Township, however, has not produced an ordinance or resolution adopting its schedule of attorneys' fees. We did not address the issue of whether the failure of a municipality to "adopt" a schedule of attorneys' fees is fatal to its claim. 4 01-4261 M.L.D. 04-184 CIVIL Pennsylvania has consistently followed the American rule which provides that there is no recovery of attorneys' fees absent an express statutory authorization, a clear agreement by the parties or some other established exception. Merlino v. Delaware Cty., 728 A.2d 949, 951 (Pa. 1999). Moreover, statutes will not be construed to allow for the award of attorneys' fees unless the statutory provision is express. Id A corollary of that principle, we believe, is that attorneys' fees ought not to be awarded beyond the scope permitted by the statute. The attorneys' fees that are at issue in this case are of two types: attorneys' fees incurred in upholding the validity of the lien; and attorneys' fees incurred in defending the right to collect attorneys' fees. Short of the filing and service of a writ of scire facias, little or no effort was expended in the actual collection of a delinquent account. For this reason, we continue to believe that our striking of the attorneys' fees was proper. May , 2005 Kevin A. Hess, 1. James D. Bogar, Esquire Jennifer B. Hipp, Esquire For the Claimant Don Bailey, Esquire Sheri Coover, Esquire F or the Owners :r1m 5