IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Perkiomen Woods Property Owners : Association, Inc. : : v. : No C.D : Submitted: June 12, 2015 Issam W. Iskander and : Nahed S. Shenoda, : Appellants : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: July 8, 2015 Issam W. Iskander and Nahed S. Shenoda (Landowners) appeal pro se the order of the Montgomery County (County) Court of Common Pleas (trial court) granting the summary judgment motion of Perkiomen Woods Property Owners Association, Inc. (Association) and entering judgment in favor of the Association and against Landowners in the amount of $2, for unpaid assessments; $ in accelerated assessments through the remainder of the fiscal year; and $1, in attorney s fees. We dismiss the appeal. In January 2014, the Association filed a complaint in the trial court pursuant to Section 5314 of the Uniform Planned Community Act, 68 Pa. C.S.

2 5314, 1 to recover delinquent common expense assessments, late charges, interest, attorney s fees and costs owed by Landowners for a unit they own at 136 Pepper Drive in a multi-dwelling development in Upper Providence Township, Montgomery County, known as Perkiomen Woods. admitting: In February 2014, Landowners filed an answer to the complaint, the Association is authorized to administer and operate certain common elements in the development pursuant to a Declaration of Covenants, Conditions, and Restrictions (Declaration); the Association is governed by the Declaration which is recorded in the County s Recorder of Deeds; Landowners last known address and they are the record title holders to the unit at 136 Pepper Drive in the Association; Landowners acceptance of the deed to the unit constitutes an agreement that the Declaration s provisions are accepted and ratified thereby obligating 1 Section 5314(b) states: 68 Pa. C.S. 5314(b). Except for assessments under subsection (c), all common expenses shall be assessed against all the units in accordance with the common expense liability allocated to each unit in the case of general common expenses and in accordance with subsection (c) in the case of special allocation of expenses. Any past due assessment or installment thereof shall bear interest at the rate established by the association at not more than 15% per year. 2

3 them to comply with all provisions of the Declaration including payment of the assessments. However, the answer denied the remaining allegations in the complaint. Specifically, in Paragraph 9 of the complaint, the Association alleged that [Landowners are in default of the obligation to pay assessments. As of the date hereof, the balance owed by [Landowners] to the Association on account of unpaid assessments with late charges, fees and costs is $2,595.04, as more fully set forth in Exhibit B attached hereto. (Reproduced Record (RR) at A18). Landowners denied this allegation on the basis that [Landowners], after reasonable investigation, are without knowledge or information sufficient to [form] a belief as to its truth. (Id. at A33). Landowners asserted the same denial to Paragraph 12 of the complaint in which the Association alleged that [d]espite demand, [Landowners have] refused to make payment of all assessments, late charges, and other fees due pursuant to the Declaration. (Id. at A19, A33). The Association then filed a motion for summary judgment alleging, inter alia, that Landowners answers to the allegations in the complaint are nothing more than general denials making them admissions of fact under Pa. R.C.P. No. 1029(b). 2 After Landowners failed to file a response to the motion, the trial court granted summary judgment 3 and entered judgment in favor of the Association and 2 Pa. R.C.P. No. 1029(b) states that [a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission. 3 The trial court stated the following, in support of its order granting summary judgment: (Footnote continued on next page ) 3

4 against Landowners in the amount of $4, Landowners then filed the instant appeal. 4 The Association, however, contends that Landowners appeal should be dismissed because of noncompliance with the Rules of Appellate Procedure because their brief does not raise any cognizable legal issues and is not otherwise in compliance with the provisions of those Rules. (continued ) [Pa. R.C.P. No.] 1029(c) provides as follows: A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial. However, reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false. See Cercone v. Cercone, 386 A.2d 1 (Pa. Super. 1978). In this case, [Landowners] surely have knowledge as to whether they are in default of the obligation to pay assessments. Furthermore, they also have knowledge as to whether they have refused to make payment of all assessments, late charges, and other fees due pursuant to the Declaration. As such, [Landowners ] responses to Paragraphs 9 and 12 act as an admission to the allegations of Paragraphs 9 and 12 of the Complaint. Based on the above, [the Association] is entitled to summary judgment against [Landowners]. (Trial Court 6/25/14 Order at 3). 4 This Court s scope of review of an order granting or denying summary judgment is limited to determining whether the trial court abused its discretion or committed an error of law. Fogarty v. Hemlock Farms Community Association, Inc., 685 A.2d 241, 242 n.1 (Pa. Cmwlth. 1996), appeal denied, 694 A.2d 624 (Pa. 1997) (citation omitted). 4

5 Pa. R.A.P. 2116(a) states: The statement of the questions involved must state concisely the issues to be resolved, expressed in terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. In the Statement of Questions Involved portion of their appellate brief, Landowners ask, Did the Appelle[e] try to work to res[o]lve this? and Did the Appelle[e] try to answer any questions? (Appellants Brief at 5). This does not raise a discernible legal issue. Additionally, Pa. R.A.P. 2119(a) states: The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part in distinctive type or in type distinctively displayed the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent. The entirety of the Argument portion of Landowners appellate brief states, The Commonwealth Court said the order [sic] because we can not [sic] def[e]nd at the time bec[a]use we did not show at the time we do not have some 5

6 one [sic] to be at [the] house with one of our family who[] was si[ck] and disable[d]. (Appellants Brief at 8). 5 As this Court has explained: The issues fail to consider the standard of review utilized by the Commonwealth Court in [these type of] cases. Thus, the issues raised are not within our scope of review, and we are precluded from conducting appellate review. Lucarelli v. Workmen s Compensation Appeal Board (Emerson Electric), [546 A.2d 151, 152 (Pa. Cmwlth. 1988)]. Additionally, even if the issues could be considered within this Court s scope of review, no cognizable question has been framed. We are aware that appellant has proceeded pro se in this matter. Nevertheless, as this Court has previously stated, a layperson who represents himself in legal matters must to an extent assume the risk that his lack of expertise in legal training will prove his undoing. Huffman v. Unemployment Compensation Board of Review, [555 A.2d 287, 288 (Pa. Cmwlth. 1989)] (citing Groch v. 5 Moreover, Pa. R.A.P states that [t]he statement of jurisdiction shall contain a precise citation to the statutory provision, general rule or other authority believed to confer on the appellate court jurisdiction to review the order or other determination in question. Landowners Statement of Jurisdiction does not address our jurisdiction to review the trial court s order granting summary judgment and entering judgment in the Association s favor and against Landowners, stating in its entirety that [t]he Commonwealth Court has exclusive jurisdiction over this appeal from the final decision of the [Association] dated June 25, (Appellants Brief at 2). Additionally, Pa. R.A.P. 2115(a) states, in pertinent part, that [t]he text of the order or other determination from which an appeal has been taken or which is otherwise sought to be reviewed shall be set forth verbatim immediately following the statement of jurisdiction. The Order in Question portion of Landowners brief does not address the trial court s order in this case, stating that [t]he [Association] enter[ed] the following order: No payment from the Appellant. (Appellants Brief at 3). Finally, Pa. R.A.P. 2111(a)(9) states that an appellant s brief shall contain [a] short conclusion stating the precise relief sought. Appellants do not ask this Court for any particular relief stating, For all of [the] reasons we have we [are] asking for appeal to [sic] this case. (Appellants Brief at 9). 6

7 Unemployment Compensation Board of Review, [472 A.2d 286, 288 (Pa. Cmwlth. 1984)]). Moreover, when a party has failed to comply with the rules regarding contents of briefs, this Court cannot on review formulate what we believe Claimant s argument on appeal ought to be. Id. at 288. Barber v. Tax Review Board, 850 A.2d 866, 868 (Pa. Cmwlth. 2004), appeal denied, 879 A.2d 783 (Pa. 2005). The Statement of Questions Involved relates to the Association s actions at some point in time, but does not relate to the Association s imposition of assessments or the trial court s grant of summary judgment or entry of judgment in favor of the Association and against Landowners. Likewise, the Argument portion of Landowners brief does not relate to the Association s imposition of assessments or the trial court s grant of summary judgment or entry of judgment. In sum, we are unable to glean any cognizable appellate issues or arguments or the particular relief sought from Landowners grossly deficient appellate brief. Accordingly, we are constrained to dismiss this appeal. DAN PELLEGRINI, President Judge 7

8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Perkiomen Woods Property Owners : Association, Inc. : : v. : No C.D : Issam W. Iskander and : Nahed S. Shenoda, : Appellants : O R D E R dismissed. AND NOW, this 8 th day of July, 2015, the above-captioned appeal is DAN PELLEGRINI, President Judge