IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carolyn J. Florimonte, Appellant v. No C.D Submitted February 1, 2013 Council of Borough of Dalton in their official capacities only James Gray, William Salva, William Brandt, Sue Davidson, Aaron Holzman, Lorraine Daniels, Mark Sujkowski and William Montgomery BEFORE HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE COLINS FILED June 7, 2013 Carolyn J. Florimonte (Appellant) appeals from the August 16, 2012, order of the Court of Common Pleas of Lackawanna County (trial court) granting the preliminary objections of the Council of Borough of Dalton and its individual members, in their official capacities (Council). We affirm. 1 1 When reviewing a trial court s grant of preliminary objections, our standard of review is de novo and our scope of review is plenary. Newcrete Products v. City of Wilkes-Barre, 37 A.3d 7, 11 n.5 (Pa. Cmwlth. 2012). We may sustain preliminary objections when, based on the facts pleaded, it is clear that the complainant will be unable to establish a right to relief. We must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible therefrom. However, we need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion. Seeton v. Adams, 50 A.3d 268, 273 n.5 (Pa. Cmwlth. 2012) (internal citations omitted).

2 Appellant filed the complaint at issue here on December 14, Assuming that Appellant s complaint could be said to state legally cognizable claims, the complaint is in the form of an Action for Mandamus, requests punitive damages, and alleges a variety of violations of Appellant s constitutional and statutory rights due to damage to her property. (December 14, 2011, Complaint) The Council filed a number of preliminary objections, including lis pendens, waiver, and legal insufficiency of a pleading or demurrer, all of which it argues before this Court as grounds for affirming the trial court. 2 Appellant originally filed a complaint alleging claims of trespass and negligence against the Borough of Dalton in See Florimonte v. Borough of Dalton, (No. 987 C.D. 2012, filed April 4, 2013) (Florimonte IV). A judgment was not entered in that case until April 25, Appellant appealed from that judgment to this Court and we affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings. (Florimonte IV). As Appellant s original suit was pending, Appellant filed a series of other complaints against the Borough of Dalton the August 2010 complaint, the November 1, 2010 complaint, and the November 5, 2010 complaint. To each complaint, the Borough of Dalton filed preliminary objections, alleging, inter alia, lis pendens. In each instance, the trial court granted the Borough s preliminary objections on the basis of lis pendens 2 Appellant argues that (1) the trial court erred in concluding that lis pendens barred her complaint, because her original 2003 complaint was filed prior to the merger of equity with civil actions and that (2) the Pennsylvania Rules of Civil Procedure do not apply to her complaint, because she raises federal claims. As we have addressed Appellant s arguments extensively in our analysis of her prior complaints and concluded that her arguments have no basis in law, we will not do so again here. See Florimonte v. Borough of Dalton, (No. 266 C.D. 2011, filed January 27, 2012) (Florimonte I); Florimonte v. Borough of Dalton, (No C.D. 2011, filed September 18, 2012) (Florimonte II); and, Florimonte v. Salva et al., (Nos C.D C.D. 2012, filed April 4, 2013) (consolidated appeals) (Florimonte V). 2

3 and Appellant appealed to this Court. In each instance, this Court affirmed the trial court on the basis of lis pendens Florimonte v. Borough of Dalton, (No. 266 C.D. 2011, filed January 27, 2012) (Florimonte I); Florimonte v. Borough of Dalton, (No C.D. 2011, filed September 18, 2012) (Florimonte II); and, Florimonte v. Borough of Dalton, (No C.D. 2011, filed October 16, 2012) (Florimonte III). Here, the trial court has again dismissed Appellant s complaint on the basis of lis pendens. As we have previously stated Generally, lis pendens applies when, in the previously filed case, the parties are the same, the rights are the same and the requested relief is the same. Swift v. Radnor Township, 983 A.2d 227, 234 (Pa. Cmwlth. 2009) (citing Feldman v. Lafayette Green Condominium Association, 806 A.2d 497, 502 (Pa. Cmwlth. 2002)). The doctrine of lis pendens protects defendants from the harassment of having to defend several suits on the same cause of action at the same time. Id. The doctrine also avoids the duplication of effort and waste of judicial resources that would result from allowing both cases to proceed simultaneously, in a race to judgment. Feldman, 806 A.2d at 502. The application of lis pendens is purely a question of law. The court must determine whether the causes of action arose from the same transaction or occurrence, that is, whether the claims involve a common factual background or common legal question. Swift, 983 A.2d at 234. Florimonte I, at 4. The trial court concluded that, although the Borough of Dalton is not specifically named here, Plaintiff is asserting her claim against the same governmental entity and, essentially, the same group of officials who would be able to afford Plaintiff relief. (Trial Court Opinion, at 4-5). We agree. See Hessenbruch v. Markle, 194 Pa. 581, 594, 45 A. 669, 671 (1900) ( Although not 3

4 the same plaintiffs and defendants, the same persons are embraced in both bills. We may, therefore, with perhaps some liberality of construction, assume that the parties are the same. ); Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131, 140 (Pa. Cmwlth. 2007); see also Shakespeare, William, Romeo and Juliet. Complete Works of William Shakespeare. Ed. Craig, W.J. London Oxford University Press, Print. (Act II, Scene ii, Lines 47-48) ( What s in a name? that which we call a rose/by any other name would smell as sweet ). Appellant is again asserting a claim against the Borough of Dalton, regardless of the fact that in this complaint she has named the Council rather than the Borough. Next, the trial court concluded that Plaintiff asserts the same rights in this action as she had done repeatedly throughout her previous filings. (Trial Court Opinion, at 5.) Again we agree. Our analysis of the claims alleged in Appellant s November 1, 2010 complaint is equally applicable to the claims alleged by Appellant here While Florimonte now styles many of her claims in terms of constitutional violations and takings rather than trespass, as she did in her 2003 Complaint, the fundamental damage alleged to have occurred to Florimonte s Property is essentially the same there is a drainage system belonging to the Borough on it and this drainage system has inundated the Property. It was not unforeseeable when Florimonte filed her 2003 Complaint that litigation of that complaint might take years to resolve and that the alleged occupation of the Property might continue. Florimonte II, at 7; see (December 14, 2011, Complaint, a-q.) Finally, the trial court concluded that Appellant requests the same relief in this action as she has done in previous actions. (Trial Court Opinion, at 5.) Appellant requests that the court issue an order directing the Council to remove 4

5 pipes from her property and that she be awarded in excess of one million dollars in punitive damages. (December 14, 2011, Complaint, at 3.) In her original 2003 complaint, Appellant requested damages and equitable relief. Florimonte IV, at 4. In each of the successive complaints that have reached this Court, she has sought damages and equitable relief. See Florimonte I, at 5; Florimonte II, at 6; Florimonte III, at 6. In every instance, the relief requested has been for the removal of the pipes depositing storm water onto her property and for monetary compensation for the damage she sustained to her person and property as a result of the pipes. We agree with the trial court that the relief requested by Appellant here is the same as in her previous complaints. Accordingly, Appellant s complaint is barred by the doctrine of lis pendens. The trial court is affirmed. JAMES GARDNER COLINS, Senior Judge 5

6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Carolyn J. Florimonte, Appellant v. No C.D Council of Borough of Dalton in their official capacities only James Gray, William Salva, William Brandt, Sue Davidson, Aaron Holzman, Lorraine Daniels, Mark Sujkowski and William Montgomery ORDER AND NOW, this 7 th day of June, 2013, the order of the Lackawanna County Court of Common Pleas dismissing the above captioned matter with prejudice is affirmed. JAMES GARDNER COLINS, Senior Judge