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Borough of Walnutport v. Timothy Dennis

December 3, 2010


The opinion of the court was delivered by: Senior Judge Flaherty

Argued: September 14, 2010




Timothy Dennis (Dennis) appeals from an order of the Court of Common Pleas of Northampton County (trial court) which entered an in rem judgment in the amount of $9,074.47 in favor of the Borough of Walnutport (Borough) and against Dennis, stating that such judgment may be enforced pursuant to Pa. R.C.P. No. 3190, against property located at 645 Lehigh Gap Street, Walnutport, Northampton County (Property). We affirm in part and reverse in part.

On April 14, 1982, Dennis and his wife, Rosemary G. Dennis (Rosemary), purchased the Property. Subsequently, Dennis and Rosemary divorced and on May 1, 1990. Rosemary conveyed her interest in the Property to Dennis and Dennis agreed to hold Rosemary harmless with regard to any expenses or liens associated with the Property. However, Dennis never recorded this deed. Due to the present litigation, Rosemary discovered the deed was not recorded and, ultimately, Dennis recorded a new deed on June 7, 2007 conveying the property.*fn1 Dennis maintained a post office box in Walnutport, Pennsylvania and has been the only person with access to that box.

On March 17, 1986, the Borough enacted Ordinance No. 86-2, which authorized the Borough to reconstruct streets in the Borough. The ordinance also authorized the Borough to install curbing on properties abutting those streets if the owner failed to do so within ninety days of receiving written notice. Ordinance No. 86-2 amended Ordinance No. 80-4, which had been enacted on September 22, 1980, and stated that if a landowner failed to install curbing after notice, the Borough could install the curbing and then collect from the owner the costs thereof "as provided in the Borough Code and/or other applicable laws, statutes, rules and regulations." Ordinance No. 80-4, Section II(g).

On November 11, 1993, the Borough passed Ordinance No. 89-4, which described and opened Lehigh Gap Street as a public street, authorized its grade and curbing alignment to be set in due course, and authorized the Borough's secretary to notify abutting landowners.

On March 4, 1994, the Borough secretary, Natalie C. Kirchner (Secretary), sent a letter to Dennis at the Property, which was returned unclaimed. The Secretary was notified that the letter should be sent to the Post Office Box (P.O. Box) 119 address. On May 10, 1994, the Secretary sent a second certified letter to Dennis at P.O. Box 119. The letter indicated that Lehigh Gap Street was scheduled for reconstruction and that curbing had to be installed by August 13, 1994. On May 28, 1994, a signed certified receipt was returned to the Borough.

On or after June 9, 1994, a third letter was sent to Dennis addressed to P.O. Box 119, which was unclaimed. At the July 7, 1994 Borough meeting, the Secretary indicated that Dennis had received his notice in May so curbing should not be installed for ninety (90) days from that date.

Dennis did not install curbing within the ninety days after receiving the notice. The Borough retained a contractor, Clark DeLong (DeLong), to install the curbing on the Property. The curbing was installed in September of 1994, and the Borough paid $3,822.25 for the curbing permit, the installation, the cutting down of two trees, the removing of stumps and legal fees. Of that amount, $500.00 was paid for the removal of two trees and stumps that were later determined to be on property not owned by Dennis.*fn2

On October 13, 1994, the Borough filed a municipal lien for improvements to the Property in the amount of $3,822.25. On June 21, 1995, the Secretary forwarded a letter to P.O. Box 119, indicating that a lien was placed on the Property. On December 29, 2004, the Borough filed a writ of scire facias. After efforts to serve the writ failed, the writ was reissued on March 9, 2007.

On April 27, 2007, Dennis filed an affidavit of defense, which included a demurrer, a motion to dismiss, an answer, defenses, and a counterclaim. On May 16, 2007, the Borough filed a demurrer to Dennis's affidavit of defense.

On August 9, 2007, pursuant to Section 3 of the Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §7106(a.1) (Municipal Claims Act), the Borough enacted Ordinance No. 2007-12 which authorized the Borough to collect "all charges, expenses and attorney fees incurred in the collection of any delinquent account."

On November 5, 2007, the trial court sustained, in part, Dennis's demurrer and granted the Borough twenty days to amend its lien. The trial court also sustained the Borough's demurrer, in part, dismissing several of Dennis's defenses. Dennis was granted leave to file an amended affidavit of defense.

On November 26, 2007, the Borough filed an amended lien for improvements to the Property in the amount of $3,822.25. On December 21, 2007, Dennis filed an amended affidavit of defense, which included an answer to the amended lien, new matter, four defenses (insufficient notice, Ordinance fails to provide due process, fraud and mistake) and two claims for damages. The first claim for damages contained Dennis's allegation that the Borough damaged the Property in widening the street and installing the curb. The second claim for damages requested that a board of viewers be appointed to assess whether the Borough condemned a portion of the Property in widening Lehigh Gap Street.

The trial court held a hearing on May 26 and 27, 2009. The Borough presented the testimony of Rosemary, as on cross, the Secretary, Borough solicitor David Backenstoe (Backenstoe), and Amy Loefflad Kunkel, an engineer for the Borough (Kunkel). Dennis presented Donald J. Ronca, a general contractor (Ronca), and then Dennis testified on his own behalf prior to calling the Secretary on rebuttal.*fn3

The trial court determined that the Borough was authorized to widen Lehigh Gap Street pursuant to applicable Borough ordinances and resolutions, that the Borough properly notified Dennis of his obligation to install curbing in connection with the widening of Lehigh Gap Street, that Dennis did not install the curbing as required, and that the Borough was authorized to install the curbing and did so at a cost of $3222.25. The trial court further determined that Dennis was obligated to reimburse the Borough for the installation of the curbing and that Section 9 of the Municipal Claims Act, as amended, 53 P.S. §7143, does not require the Borough to enact an ordinance setting the interest rate, but rather, simply allows the Borough to assess an interest rate not to exceed 10% per annum.

The trial court found that Dennis received sufficient notice of the Borough's demand for installing the curb; that the Borough properly enacted Ordinance No. 86-2; and that Dennis's assertion that the ordinance is unconstitutional is without merit. The trial court further found that Dennis failed to prove that the Property sustained any damage as a result of the Borough, its agents or employees. In addition, the trial court found that pursuant to Ordinance No. 80-4, Section II, Dennis is responsible for all grading on the Property and that Dennis's claim that the Borough condemned a portion of the Property was not properly before the trial court, as it must be brought before a board of viewers.

The trial court found that the Borough was entitled to interest in the amount of $4,668.60, and attorney fees in the amount of $1,183.62. It determined that the total owed to the Borough ...

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