IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Duquesne City School District and City of Duquesne v. No C.D Burton Samuel Comensky, Submitted August 5, 2011 Appellant BEFORE HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER 1 FILED February 24, 2012 Burton Samuel Comensky (Comensky) appeals, pro se, from the July 1, 2010, Orders of the Court of Common Pleas of Allegheny County (trial court) that denied Comensky s Motions (1) to Quash a writ of scire facias 2 (Motion to Quash) 1 The majority opinion was reassigned to the authoring Judge on September 19, In In re Sale of Real Estate by Lackawanna County Tax Claim Bureau, 22 A.3d 308 (Pa. Cmwlth. 2011), this Court quoted 18 Standard Pennsylvania Practice 2d (1983) 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. The object of the (Continued )

2 for lack of proper personal service and (2) to Set Aside as Untimely the Reply to Comensky s Affidavit of Defense, (Motion to Set Aside Reply) (together with Motion to Quash, Motions). A Reply was filed by the Duquesne City School District (School District) and the City of Duquesne (City) (collectively, Taxing Authorities). On October 30, 2007, Taxing Authorities filed a Praecipe for Writ of Scire Facias (Writ) against Comensky, the owner or reputed owner of real estate recorded in the Office of the Recorder of Deeds of Allegheny County in Deed Book 9719, Page 264 in the City, Parcel Lot 190 Block 305-H, seeking to collect real estate tax liens in the amount of $12, for School District taxes for the years 1990 and 1995 through 2006, and City taxes for the years 1991 and 1995 through 2005, plus statutory penalty and interest. (Writ, R. Item 1.) According to the Sheriff s Return and a trial court docket entry, 3 the Writ was served upon an 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 execution. The writ of scire facias serves the dual purposes of a summons and a complaint, and a writ of scire facias is personal process, but the detailed requirements of a pleading are not applied to the writ of scire facias. (Footnotes omitted.) In re Sale of Real Estate, 22 A.3d at 313 n.5. 3 The Sheriff s return, located in the original record, is a printed page showing a case number, the name of the defendant, the service address, the writ description being a writ of scire facias with an issue date of November 27, 2007, served by Don Modrick on Monday, December 17, 2007 at 1200 to a person in charge. (Sheriff s Return at 1, R. Item 2 (emphasis added).) The trial court s docket entry dated December 17, 2007, provides additionally that Comensky was served with Writ- SCI FA on 12/17/2007 by Served Adult in charge of Defendant s residence who refused to give name or relationship. (Trial Court Docket Entry dated December 17, 2007 (emphasis added).) The record and briefs do not explain why the docket entry includes the additional information that the adult in charge of Comensky s residence refused to give name (Continued ) 2

3 [a]dult in charge of [Comensky s] residence who refused to give name or relationship. (Sheriff s Return at 1, R. Item 2; Trial Court Docket Entry dated December 17, 2007.) On January 7, 2008, Comensky filed an Affidavit of Defense to the Writ, (Affidavit of Defense, R. Item 3), and, on the same date, Taxing Authorities filed a Notice of Intention to Take Default Judgment (Ten Day Notice), (Ten Day Notice, R. Item 4). Comensky requested dismissal of the Writ and, among other things, alleged that the trial court had no jurisdiction due to lack of proper service. (Affidavit of Defense at 2.) On April 27, 2010, Taxing Authorities filed their Reply to Comensky s Affidavit of Defense, asserting that the original service upon Comensky was proper and timely. (Reply, R. Item 5.) On April 28, 2010, Taxing Authorities filed a Motion for Judgment on the Pleadings and Brief in Support thereof requesting that judgment be entered in favor of Taxing Authorities. (Motion for Judgment on the Pleadings and Brief in Support of Motion for Judgment on the Pleadings, R. Item 6.) On May 5, 2010, Comensky filed his Motions, (Motions, R. Items 7-8), and both parties filed briefs, (R. Items 9-10). On July 1, 2010, the trial court issued Orders denying Comensky s Motions, (Orders, R. Items), and on August 2, 2010, Comensky filed a Notice of Appeal to this Court. 4 (R. Item 15, Notice of Appeal.) or relationship when the return, itself, appears to provide only that the Writ was served upon a person in charge. 4 On August 3, 2010, Comensky filed a Petition to Proceed In Forma Pauperis and the trial court scheduled a hearing. (Trial Ct. Order, August 3, 2010.) On August 10, 2010, this Court, per curiam, entered an Order quashing Comensky s appeal as being from an order that (Continued ) 3

4 On November 23, 2010, pursuant to Pa. R.A.P. 1925, the trial court issued a memorandum opinion in support of its denial of Comensky s Motion to Quash. (Trial Ct. Op. at 1.) The trial court noted that Comensky challenged the issue of proper service by asserting that the Sheriff s Return stating that he gave said Writ to an unknown person at the residence could only be false as no one has or has had access to [] Comensky s house since he took possession (1996). (Trial Ct. Op. at 1-2 (quoting Motion to Quash at 1).) The trial court explained that Comensky s statement challenged the integrity of the Sheriff and such an attack is not permitted pursuant to American Vending Company, Inc. v. Brewington, 432 A.2d 1032 (Pa. Super. 1981), and cases cited therein holding that a sheriff s return, which is complete on its face[,] is conclusive and immune from extrinsic attack as to facts of which the sheriff presumptively has personal knowledge. (Trial Ct. Op. at 2.) The trial court also stated in its 1925(a) opinion that its order denying the Motion to Set Aside Reply is not a final order. (Trial Ct. Op. at 1 n.1.) Comensky now appeals the trial court s denial of his Motions to this Court. Before we may evaluate the merits of this appeal, we must determine whether the Orders of the trial court from which Comensky appeals are final orders or are otherwise appealable. Commonwealth v. Harris, Pa.,, 32 A.3d 243, 248 (2011). Rule 341(b) of the Rules of Appellate Procedure defines a final order as any order that (1) disposes of all claims and of all parties; or (2) is was not final or otherwise appealable as of right. Duquesne City School District v. Comensky, (Pa. Cmwlth. No C.D. 2010, filed Aug. 10, 2010). On September 15, 2010, this Court, per curiam, granted Comensky s Motion for Reconsideration, filed on August 25, 2010, ordered review of the issue of the appealability of the trial court s order[s] and granted leave for Comensky to proceed in forma pauperis. Duquesne City School District v. Comensky, (Pa. Cmwlth. No C.D. 2010, filed Sept. 15, 2010.) 4

5 expressly defined as a final order by statute; or (3) is entered as a final order pursuant to subdivision (c) of this rule [in cases involving multiple parties and claims where orders are entered as to one or more but fewer than all claims and parties]. Pa. R.A.P. 341(b), (c). Our Supreme Court has interpreted this rule to mean that [f]inal orders are those that dispose of all claims and all parties, are explicitly defined as final orders by statute, or are certified as final orders by the trial court or other reviewing body. Harris, Pa. at, 32 A.3d at 248. The purpose of this rule is to preclude piecemeal determinations and consequent protraction of litigation.... As a general rule, a final order is one which usually ends litigation, or alternatively, disposes of the entire case. Pennsylvania Association of Rural and Small Schools v. Casey, 531 Pa. 439, 442, 613 A.2d 1198, 1199 (1992) (citation omitted). Once an appeal is filed from a final order, all prior interlocutory orders become reviewable. In re Bridgeport Fire Litigation, 8 A.3d 1270, 1278 (Pa. Super. 2010) (quoting Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010)). We first address Comensky s appeal of the trial court s denial of his Motion to Quash. Comensky essentially argues that he was not properly served with the Writ. Section 18 of the Municipal Claims and Tax Liens Act 5 provides for service of a writ of scire facias by a sheriff as in the case of a summons. 53 P.S. 7186(a). Comensky s Motion to Quash challenges the Sheriff s service of the Writ 6 on the grounds of improper service and lack of jurisdiction over the person. 5 Act of May 16, 1923, P.L. 207, 53 P.S. 7186(a). 6 A municipality that is pursuing a claim against a property owner may pursue a writ of scire facias without waiting for any prompting by the owner. Western Clinton County Municipal (Continued ) 5

6 Hence, when the trial court issued an Order denying Comensky s Motion to Quash and this Order had the same effect as an order dismissing a preliminary objection. 7 An order dismissing preliminary objections is ordinarily interlocutory [8] and, therefore, not appealable,..., unless expressly made so by statute. Department of Transportation v. Lakeview Motel, Inc., 473 A.2d 262, 263 (Pa. Cmwlth. 1984) (citing Husted v. Board of Directors of Wellsboro Area School District, 427 A.2d 272 (Pa. Cmwlth. 1981)). There is no statute involved in this case that expressly makes this interlocutory Order appealable. Moreover, because the Taxing Authorities Motion for Judgment on the Pleadings remains outstanding, no final judgment has been entered in this matter. Therefore, the trial Authority v. Estate of Rosamilia, 826 A.2d 52, 56 (Pa. Cmwlth. 2003). In Pennsylvania a writ of scire facias is purely statutory and is an action in rem. Shapiro v. Center Township, 632 A.2d 994, 997 (Pa. Cmwlth. 1993). 7 Rule 1028(a)(1) of the Rules of Civil Procedure provides, in relevant part, that [p]reliminary objections may be filed by any party to any pleading alleging improper service of a writ of summons. Pa. R.C.P. No. 1028(a)(1). [P]reliminary objections furnish the exclusive method of raising a question of jurisdiction encompassing lack of jurisdiction over the subject matter or lack of jurisdiction over the person. C. E. Williams Co. v. Henry B. Pancoast Co., 412 Pa. 166, 170, 194 A.2d 189, 191 (1963) (emphasis in original). 8 The trial court s interlocutory Order cannot be considered an order refusing to strike off or open a judgment that would be appealable as of right under Pa. R.A.P. 311(a)(1). Borough of Ambler v. Regenbogen, 713 A.2d 145, (Pa. Cmwlth. 1998). Additionally, because Comensky s right to possess, control or transfer his property is not affected by the mere existence of a municipal lien... the trial court s order [denying the Motion to Quash] is not an order refusing to dissolve an attachment or a similar matter affecting the possession or control of the property appealable as of right under Pa. R.A.P. 311 (a)(2). Borough of Ambler, 713 A.2d at

7 court s Order denying the Motion to Quash is not final, but interlocutory, and, thus, not appealable until a final order has been entered. 9 We next address Comensky s appeal of the trial court s denial of his Motion to Set Aside Reply, which challenges the timeliness of the Taxing Authorities Reply. Pursuant to Rule 1028(a)(2) of the Rules of Civil Procedure, preliminary objections may be filed by any party to challenge pleadings that fail to conform to law or rule of court. Pa. R.C.P. No. 1028(a)(2). Although Comensky titled his challenge to the timeliness of a pleading as a Motion to Set Aside Reply, instead of a preliminary objection, the effect of the trial court s denial of his Motion to Set 9 The issues raised by Comensky in his brief to this Court will not be lost. Taxing Authorities Motion for Judgment on the Pleadings remains outstanding with the trial court. We note that the Act provides no mechanism for a direct appeal. Instead, to contest the claim or amount of assessment and to force the issue to an original hearing, the owner may file and serve a notice upon the [] municipality to issue a scire facias. In the proceeding commenced by the writ of scire facias, the owner then files an affidavit of defense. In that affidavit the owner may raise all defenses that he or she has to the municipal claim.... Alternatively, the municipality may pursue a writ of scire facias without waiting for prompting from the owner.... Either way, there is no requirement that the owner appeal within a specified period from the initial filing of the municipal claim or forever forego the right to challenge it. Therefore, the precise effect of the procedure renders the proceeding in common pleas court the owner s appeal even though the municipality is the moving party. Regardless of which party seeks the writ of scire facias to force the matter to a hearing, the owner s initial refusal to pay and subsequent filing of an affidavit of defense constitute an appeal from the local agency adjudication of the imposition of the lien. Jurisdiction of this appeal from an adjudication of a local agency is vested by statute in the court of common pleas, and the matter is a statutory appeal within the meaning of Rule 227.1[, Pa. R.C.P. No ]. Shapiro, 632 A.2d at (citation and footnotes omitted). 7

8 Aside Reply is essentially that of a denial of a preliminary objection; therefore, this Order is also interlocutory and not appealable until a final order has been entered. Accordingly, we must conclude that the Orders appealed from remain interlocutory and, therefore, we must quash the instant appeal. Once the trial court enters final orders, they become appealable. In re Bridgeport, 8 A.3d at RENÉE COHN JUBELIRER, Judge 8

9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Duquesne City School District and City of Duquesne v. No C.D Burton Samuel Comensky, Appellant O R D E R NOW, February 24, 2012, Burton Samuel Comensky s appeal from the Orders of the Court of Common Pleas of Allegheny County denying the Motions to Quash the writ of scire facias for lack of proper service and to Set Aside the Reply to Affidavit of Defense in the above-captioned matter is hereby QUASHED. Jurisdiction relinquished. RENÉE COHN JUBELIRER, Judge