Bethlehem Area SD v. A.S. Kanofsky and USA ~ Appeal of: A.S. Kanofsky ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bethlehem Area School District :
:
v. : No. 89 C.D. 2017
: Submitted: May 19, 2017
Alvin S. Kanofsky and United :
States of America :
:
Appeal of: Alvin S. Kanofsky :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: September 12, 2017
Appellant Alvin S. Kanofsky (Kanofsky), pro se, appeals from an
order of the Court of Common Pleas of Northampton County (trial court), dated
December 21, 2016, which granted Appellee Bethlehem Area School District’s
(School District) Motion for Judgment for Want of Sufficient Affidavit of Defense
(Motion). For the reasons set forth below, we affirm.
Kanofsky is the owner of real property located at 32 East Third Street,
Bethlehem, Pennsylvania (Property). On March 28, 2016, the School District filed
a tax claim against the Property for the non-payment of 2014/2015 school real
estate taxes in the amount of $2,448.36. Thereafter, on April 18, 2016, the School
1
This decision was reached before Judge Hearthway’s service with the Court ended on
September 1, 2017.
District filed a writ of scire facias,2 seeking to reduce the tax claim to a judgment
against Kanofsky. In response thereto, Kanofsky, who was acting pro se, filed a
document he entitled: “Brief in Response to [the School District’s] Tax Lien” and
a “Counter Complaint,” which the trial court appears to have treated as Kanofsky’s
Affidavit of Defense (Affidavit). Subsequently, on October 7, 2016, the School
District filed its Motion. The trial court held oral argument on the School
District’s Motion on November 29, 2016. By order dated December 21, 2016, the
trial court granted the School District’s Motion. In so doing, the trial court
determined that Kanofsky’s Affidavit failed to show how the tax claim was
inaccurate or otherwise defective. (Trial Ct. Order, Dec. 21, 2016.) The trial court
also determined that what is commonly referred to as the Municipal Claims and
Tax Liens Act (MCTLA)3 provided a statutory appeal process and did not
authorize the filing of a counter complaint as a defense to a writ of scire facias.
(Id.) As a result, the trial court did not consider Kanofsky’s counter complaint.
(Id.)
Kanofsky appealed the trial court’s order to this Court, and the trial
court directed Kanofsky to file a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (1925(b)
statement). On February 13, 2017, Kanofsky filed his 1925(b) statement. Rather
than set forth the reasons for his appeal or the alleged errors committed by the trial
2
On September 28, 2016, after discovering that there were federal tax liens filed against
Kanofsky and the Property, the School District filed a motion to amend its writ of scire facias,
seeking to add the United States of America as a defendant. By order dated September 28, 2016,
the trial court granted the motion.
3
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
2
court, Kanofsky simply referenced and attached statements of errors complained of
on appeal that he had filed in previous tax lien appeals. Thus, in its
1925(a) opinion, the trial court concluded that Kanofsky had failed to raise any
cognizable claims on appeal and requested that Kanofsky’s appeal be dismissed.
(Trial Ct. Op., Feb. 14, 2017.)
On appeal, Kanofsky appears to argue that the trial court erred in
granting the School District’s Motion because he set forth valid defenses to the
School District’s tax claim in his Affidavit.4 In response, the School District
argues that the trial court properly determined that the School District was entitled
to have its tax claim reduced to judgment for want of sufficient affidavit of defense
because Kanofsky failed to “raise any issues related to the validity or accuracy of
the delinquent taxes” in his Affidavit. (School District’s Br. at 7.) The School
District argues further that the trial court properly chose not to consider
Kanofsky’s counter complaint because there was no basis for Kanofsky to include
a counter complaint with his Affidavit.5
4
In the “Questions Involved” and “Questions Asked” sections of his brief, Kanofsky
identifies fourteen issues for consideration by this Court on appeal. The majority of Kanofsky’s
issues, however, involve matters that are irrelevant and in no way relate to this appeal and/or
have no basis in the record. As a result, such issues are not properly before this Court and will
not be addressed in this opinion.
5
The School District also argues that Kanofsky failed to adequately develop any issues
for appellate review in his brief to this Court because his brief “consists of a series of vague
allegations presented in scattershot fashion that have no relevance to whether he owes [school]
real estate taxes on the Property for the year 2014/2015” and his argument “lacks any citation to
legal authority, any legal argument, any explanation of how his allegations relate to the issues
listed in his (multiple) statements of the questions involved, or any explanation of how the [t]rial
[c]ourt erred.” (School District’s Br. at 5-6.) We disagree. Although Kanofsky’s brief sets forth
matters that in no way relate to this appeal and/or have no basis in the record, when read as a
(Footnote continued on next page…)
3
We need not reach the merits of Kanofsky’s argument because the
record demonstrates that he failed to properly raise any cognizable issues in his
1925(b) statement. Although not argued by the School District,6 it is well-settled
that this Court may dismiss an appeal sua sponte based on an appellant’s failure to
properly preserve issues for appellate review. Gibraltar Rock, Inc. v. New
Hanover Twp., 118 A.3d 461, 464 (Pa. Cmwlth.), appeal denied, 128 A.3d 222
(Pa. 2015). When a party wishes to appeal an order of a trial court, the
Pennsylvania Rules of Appellate Procedure require that, upon the order of the trial
court, an appellant must file a concise statement of errors complained of on appeal.
Pa. R.A.P. 1925(b). The appellant’s statement must “concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge.” Pa. R.A.P. 1925(b)(4)(ii). Failure to do so results
in the waiver of any issues not included in the statement.
Pa. R.A.P. 1925(b)(4)(vii).
Here, Kanofsky’s 1925(b) statement failed to set forth the reasons for
his appeal or the alleged errors committed by the trial court. Kanofsky simply
referenced and attached statements of errors complained of on appeal that he had
filed in previous tax lien appeals, which do not in any way relate to the tax claim
that is the subject of this appeal—i.e., the non-payment of the 2014/2015 school
(continued…)
whole, Kanofsky’s brief adequately develops the issue of whether the trial court properly granted
the School District’s Motion.
6
As explained more fully in footnote 5 of this opinion, the School District argued that
Kanofsky failed to adequately develop any appellate issues in his brief to this Court. The School
District’s argument in no way related to Kanofsky’s 1925(b) statement.
4
real estate taxes for the Property. Kanofsky has, therefore, failed to identify any
cognizable issues in his 1925(b) statement, and, pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b), all issues are waived for the purposes of this appeal,
including whether the trial court erred in granting the School District’s Motion.
Even if we did not dismiss Kanofsky’s appeal for failure to comply
with Pennsylvania Rule of Appellate Procedure 1925(b), Kanofsky’s argument that
the trial court erred in granting the School District’s Motion is without merit. The
procedure governing municipal claims in Pennsylvania was previously explained
by this Court in Western Clinton County Municipal Authority v. Estate of
Rosamilia, 826 A.2d 52 (Pa. Cmwlth. 2003):
[M]unicipal claim procedure in general and scire facias
procedure in particular, is purely statutory [and is
governed by the MCTLA]. Once the municipality files a
claim for services, the claim becomes a lien on the
property. If the owner does not dispute the claim and
assessment, the owner simply pays and removes the lien.
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 claimant municipality to
issue a writ of 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 he or she has to the
municipal claim.
Alternatively, the municipality may pursue a writ
of scire facias without waiting for prompting by the
owner, which is what occurred in the present case. In
response to the writ, the owner may file an affidavit of
defense raising all defenses.
....
Where a judgment for insufficient affidavit of
defense is sought, the averments in the affidavit of
defense are taken as true. The court may not go outside
the case as presented by the pleadings for the purpose of
5
considering extraneous facts, either in support of or
against the line of defense disclosed by the affidavit. In
this regard, the procedure followed is analogous to a
motion for judgment on the pleadings. A rule for
judgment for insufficient affidavit of defense may be
discharged where the appellate court thinks it advisable
that the case go to trial so that the facts may be more
fully developed and passed upon.
Estate of Rosamilia, 826 A.2d at 56-57 (citations omitted). Thus, Kanofsky was
required to raise any defenses that he had to the School District’s tax claim in his
Affidavit. Kanofsky did not do so, as his Affidavit does not set forth any facts or
allegations regarding the existence, validity, or accuracy of the School District’s
tax claim. Rather, it appears that Kanofsky used his Affidavit, as well as his brief
to this Court, to make excuses for why he has not paid the 2014/2015 school real
estate taxes and to complain about other matters. Because Kanofsky has failed to
set forth any defense to the School District’s tax claim, we cannot conclude that the
trial court erred in granting the School District’s Motion.7
For all of the above stated reasons, we affirm the trial court’s order.
P. KEVIN BROBSON, Judge
7
The trial court also properly chose not to consider Kanofsky’s counter complaint as the
MCTLA provides a purely statutory mechanism to challenge a municipal claim and the
Pennsylvania Rules of Civil Procedure do not apply to any such proceedings. See Shapiro v. Ctr.
Twp., Butler Cnty., 632 A.2d 994, 999 (Pa. Cmwlth. 1993), appeal denied, 642 A.2d 488 (Pa.
1994).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Bethlehem Area School District :
:
v. : No. 89 C.D. 2017
:
Alvin S. Kanofsky and United :
States of America :
:
Appeal of: Alvin S. Kanofsky :
ORDER
AND NOW, this 12th day of September, 2017, the order of the Court
of Common Pleas of Northampton County is hereby AFFIRMED.
P. KEVIN BROBSON, Judge