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Valley Forge Sewer Auth. v. Hipwell

Commonwealth Court of Pennsylvania

July 31, 2015

Valley Forge Sewer Authority
v.
Brian Hipwell, Chris Hipwell, David Tober and Wanda Warner, Appellants

Submitted January 30, 2015

Appealed from No. 2010-05578-LN. Common Pleas Court of the County of Chester. Griffith, J.

Brian Hipwell, Newtown Square, for appellants.

Scot R. Withers, West Chester, for appellee.

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 1165

ANNE E. COVEY, J.

Brian Hipwell, Chris Hipwell, David Tober and Wanda Warner (collectively, Hipwell) appeal from the Chester County Common Pleas Court's (trial court) October 8, 2013 order striking and dismissing Hipwell's Affidavit of Defense to the Valley Forge Sewer Authority's (Authority) Writ of Scire Facias Sur Municipal Claim,[1] and entering judgment in favor of the Authority for its municipal claim together with interest and attorney's fees. There are two issues for this Court's review: (1) whether the trial court erred in

Page 1166

finding that the municipal claim filed against Hipwell's property was valid under what is commonly referred to as the Municipal Claims and Tax Liens Act (MCTLA); [2] and (2) whether the trial court erred when it awarded the Authority attorney's fees and interest. After review, we affirm.

On or about May 24, 2006, Hipwell became the owner of property located at 133 Orchard Lane, Phoenixville, Pennsylvania (Property). The Property had been connected to the Authority's sanitary sewer system since 1977, and the Authority's records reflected that the Property was improved as a single-family dwelling. Section 165-16 of the Authority's Code of Rules and Regulations (Code) imposes a $75.00 quarterly sewer fee per equivalent dwelling unit (EDU). Since acquiring the Property, Hipwell received quarterly bills from the Authority and paid the $75.00. Although the Authority issued regular quarterly $75.00 invoices based upon its understanding that the Property was a one-unit dwelling, in reality, the Property had been a multi-family dwelling unit for many years before Hipwell's acquisition. In July 2009, the Authority investigated a sewage smell complaint at the Property and discovered for the first time that the Property was improved as a multi-family dwelling containing four EDUs. Until that time, Hipwell did not know the Authority was unaware that the Property contained four EDUs, and never concealed that fact from the Authority.

By letter dated September 17, 2009, the Authority informed Hipwell that it changed its records to accurately reflect that the Property was a multi-family dwelling, and requested an additional $2,925.00 (Amount in Controversy) by September 30, 2009 for the three EDUs not billed in the prior invoices. Hipwell disputed the Amount in Controversy, asserting that since purchasing the Property, he had paid the quarterly invoices in full. Beginning October 1, 2009, Hipwell paid quarterly $300.00 invoices reflecting $75.00 charges for all four EDUs. By March 23, 2010 letter, the Authority notified Hipwell that it intended to forward the unpaid Amount in Controversy to its Solicitor for the filing of a municipal lien and other collection efforts in the amount of $3,108.82. On May 4, 2010, a municipal claim was filed against the Property for the Amount in Controversy, along with associated fees and costs in the amount of $3,469.29. On November 10, 2010, the Authority filed a Writ of Scire Facias Sur Municipal Claim.[3] Hipwell filed an Affidavit of Defense on November 29, 2010.

The matter was submitted to the trial court based upon the parties' Joint Stipulations of Fact (JSOF) and trial briefs. On October 8, 2013, the trial court issued its decision striking and dismissing

Page 1167

Hipwell's Affidavit of Defense, and entering judgment in favor of the Authority's Writ of Scire Facias Sur Municipal Claim, together with interest and attorney's fees. Relying on the case of West Penn Power Co. v. Nationwide Mutual Insurance Co., 209 Pa.Super. 509, 228 A.2d 218 (Pa. Super. 1967), the trial court held that the Authority was entitled to payment for the sewer service Hipwell received. Hipwell appealed to this Court.[4]

Hipwell first argues that the trial court failed to give proper weight to the JSOF. Hipwell further contends that Nationwide is not determinative of the instant matter, and that the trial court was required to consider his valid defenses.

In Nationwide, West Penn Power Company (West Penn) brought an action in assumpsit for electric service supplied to Nationwide Insurance Company (Nationwide Insurance). Due to a billing error, Nationwide Insurance was billed for less than the amount of service actually supplied. Although the bills had been paid, West Penn sought the difference between the amount that had been billed and paid, and the amount that should have been billed and paid. In new matter, Nationwide Insurance averred facts supporting the defenses of accord and satisfaction, payment, estoppel and breach of contract. West Penn filed preliminary objections

alleging that the only issue that the court could consider was the amount or quantity of service rendered by the public utility and whether or not payment for said service had been made in accordance with the effective tariff of the public utility as filed with the Public Utility Commission. The court below sustained the motions to strike and the demurrer and permitted the appellant twenty days to file [an] amendment to the new matter.

Id. at 219. Thereafter, Nationwide Insurance filed an amended answer in which it restated portions of an earlier answer which had been stricken pursuant to the trial court's ...


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