Borough of Bellevue v. L.J. Mortimer and T.J. Mortimer ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Bellevue, :
Appellant :
:
v. : No. 51 C.D. 2017
: Submitted: October 6, 2017
Lois J. Mortimer and :
Thomas J. Mortimer :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: June 7, 2018
Borough of Bellevue (Borough) appeals from an order of the Court of
Common Pleas of Allegheny County (trial court), dated December 9, 2016, striking
certain real estate tax claims filed by the Borough for the tax
years 1997 through 2004 and reducing the amount of attorney fees recoverable by
the Borough in connection with a real estate tax claim for tax year 2014. We now
vacate and remand for reconsideration and a new opinion and order.
Appellee Lois J. Mortimer (Ms. Mortimer) is the record owner of real
property known as 443 Union Avenue, Pittsburgh, Pennsylvania (the Property). On
September 10, 2013, the Borough filed a Writ of Scire Facias Sur Tax Claim and
Statement (Writ of Scire Facias) against the Property to reduce to judgment the
Borough’s real estate tax claims filed against the Property for tax
years 1997 through 2004. On December 12, 2013, Ms. Mortimer filed an Affidavit
of Defense, alleging that such delinquent real estate taxes had been paid in full. On
September 28, 2015, the Borough filed a Petition for Rule to Show Cause Why
Judgment Should Not Be Entered for Want of Sufficient Affidavit of Defense (Rule).
On that same day, Appellee Thomas J. Mortimer (Mr. Mortimer), Ms. Mortimer’s
son who resides at the Property and claims to have an ownership interest in it, sought
to intervene in the matter. The trial court granted Mr. Mortimer’s Petition to
Intervene and scheduled argument on the Rule. The Borough then filed, on
September 29, 2015, an Amended Writ of Scire Facias Sur Tax Claim and Statement
(Amended Writ of Scire Facias) against the Property, adding real estate tax claims
for the year 2014, for which the Borough asserted a tax claim after the filing of its
original Writ of Scire Facias. Mr. Mortimer filed an Affidavit of Defense on
February 23, 2016, alleging that all delinquent real estate taxes had been paid in full.
The trial court conducted a hearing on May 23, 2016.
At the hearing, Ms. Mortimer’s counsel, Mark Gesk, introduced two
documents into the record relating to an earlier collection action for unpaid real
estate taxes relating to the Property. Attorney Gesk introduced a Municipal Claim
Letter from the Borough to the Sheriff of Allegheny County, received by the
Sheriff’s Office on April 28, 2003, requesting the Sheriff to enter the Borough’s
claim for “liened” Borough real estate taxes for the Property for the tax years 1996
through 2002, which included penalties, interest, and lien and satisfactions costs, in
the total amount of $3,503.30, relating to a sheriff’s sale scheduled to occur on
May 5, 2003.1 (Reproduced Record (R.R.) at R148a.) The municipal claim letter
identified the defendants as Evon J. Mortimer and Lois J. Mortimer and set forth the
1
The amount of the Borough’s unpaid real estate taxes for each of the tax years at issue in
this matter ranged from $398.80 to $546.81 and totaled $2,946.32. (Reproduced Record (R.R.)
at R148a.)
2
docket number G.D. No. 02-14608. Attorney Gesk also introduced a praecipe to
satisfy judgment (the GLS Praecipe), filed at the same docket number, which
identified the plaintiff as GLS Capital, Inc., Assignee of the County of Allegheny
(GLS Capital), and identified the defendants as Evon J. Mortimer and Lois J.
Mortimer, husband and wife. Counsel for GLS Capital filed the GLS Praecipe,
possibly on December 10, 2003, although the year of the date-stamp is difficult to
read. The GLS Praecipe requested the Prothonotary to “mark the Docket in the
above captioned action SATISFIED.” (Id.)
Attorney Gesk stated that the sheriff’s sale did not occur because the
taxes were paid. (R.R. at R88a.) With regard to the GLS Praecipe, the Borough’s
counsel, Emily Mueller, contended that GLS, as Allegheny County’s assignee, filed
the praecipe to satisfy Allegheny County tax liens—not Borough tax liens. (Id.)
Attorney Mueller took the position that she would like to review the complaint in
that earlier action to ascertain whether it included the Borough’s tax liens, because
an assignee of county tax liens cannot initiate an action for municipal tax liens.
(R.R. at R89a.) Moreover, Attorney Mueller took the position that GLS could only
satisfy what Allegheny County assigned to it—that being Allegheny County tax
liens, not Borough tax liens. (Id.) Attorney Mueller explained:
And if there was no sheriff sale, if the sale ultimately did
not occur, other taxing bodies’ debts would not have been
collected.
If they were paid they would only have been paid what
was assigned to them, which would have been county tax
liens at the sheriff sale for one taxing body.
Typically when a property is exposed you try to collect
taxes and municipal claims that are due to everyone. But
[Attorney] Gesk said this was not ultimately exposed to
sale because the taxes at issue were paid. That’s a county
action. So only county taxes would have been paid.
3
(R.R. at R90a-R91a.)
In response, the trial court examined the docket entries available to it
electronically. (R.R. at R92a-R98a.) The trial court noted that the docket identified
GLS as the plaintiff in the action, although the docket also identified Michael
Gorgalis as solicitor for the Borough in the matter. (R.R. at R93a.) The trial court,
however, was not able to view the electronic images of documents filed in the matter.
Jerry Pasquinelli, Treasurer of Jordan Tax Service, testified on behalf
of the Borough. (R.R. at R98a-R99a.) Jordan Tax Service serves as the delinquent
real estate tax collector on behalf of the Borough. (R.R. at R99a.) Mr. Pasquinelli
testified that the current tax collector provided Jordan Tax Service with a list of
delinquent taxes for the Property for the years 1996 through 2004, and 2014 and
2015. (Id.) The Borough records indicated that the Borough had not received any
payments for any of those tax years. (Id.) Jordan Tax Service did receive some
monthly payments from Ms. Mortimer from October 2010 through July 2013, but
the payments were not continuous. (R.R. at R100a-01a.) Jordan Tax Service applied
those payments, in the amounts of roughly $50 per month, to tax years 1996 and
1997, resulting in tax year 1996 being paid in full and tax year 1997 being paid in
part. (Id.) The taxes remain delinquent for the remainder of 1997 through 2004, and
2014 and 2015. (R.R. at R101a.)
According to Mr. Pasquinelli, Jordan Tax Service performs delinquent
real estate tax service for Allegheny County as well. (Id.) Mr. Pasquinelli testified
that Allegheny County turned the 2003 and 2004 taxes over as delinquent, and those
taxes were paid in full in April of 2005. (Id.) Allegheny County did not turn the
other tax years over as delinquent. (Id.) Attorney Mueller, during her direct
examination of Mr. Pasquinelli, introduced into evidence a copy of the delinquent
4
tax docket, showing all the liens that Allegheny County, the school district, and the
Borough entered against the Property. (R.R. at R102a.) She explained that both
Allegheny County and the school district initiated lawsuits and that the delinquent
taxes for both Allegheny County and the school district have been marked satisfied,
as indicated on the delinquent tax docket. (Id.) Attorney Mueller further explained
that the delinquent tax docket indicates that the school district filed an arbitration
action and Allegheny County filed two writ of scire facias actions relating to unpaid
taxes for the Property for tax years 2002 and 2003. (R.R. at R103a.) Some taxes
were paid and the liens marked satisfied in 2005. (Id.) She explained that, during
the relevant time period, taxes were not paid to any taxing body—the Borough,
Allegheny County, or the school district, and taxes were paid to Allegheny County
and the school district (not the Borough) only after Allegheny County and the school
district (not the Borough) filed the lawsuits. (R.R. at R103a-04a.)
Mr. Mortimer testified that he paid the taxes, working closely with his
father. (R.R. at R104a.) Mr. Mortimer provided the trial court with a copy of the
delinquent tax dockets for the Property since 1994, with handwritten notes on it,
which he claimed showed that he had paid the delinquent taxes.
(R.R. at R105a-07a.) Attorney Mueller countered that the taxes to which Mr.
Mortimer referred were Allegheny County taxes. (R.R. at R107a.) When questioned
further by the trial court judge, Mr. Mortimer testified that he has lived in the house
for a quarter of a century and paid the taxes himself. (R.R. at R108a.) He maintained
that the Borough received the taxes but failed to mark the liens satisfied. (Id.) Mr.
Mortimer, Attorney Mueller, and the trial court judge engaged in a lengthy and
repetitive discussion on the record regarding which taxes the parties believe were
satisfied for the relevant time period. (R.R. at R108a-17a.) Mr. Mortimer
5
maintained throughout the hearing that the taxes were always paid, either by him or
his now deceased father. (R.R. at R118a.) Attorney Mueller pointed out that tax
liens were filed for all of the years listed because taxes were not paid, and Allegheny
County marked its liens satisfied long after the taxes were due. (Id.) Moreover, she
clarified that Mr. Mortimer was the person who added the handwritten notes that
certain liens were satisfied. (R.R. at R119a-20a.)
Throughout the hearing, the trial court judge expressed consternation
that the Borough had waited so long to take action, although legally not required to
do so earlier, because it made matters of proof more difficult due to the passage of
time. By memorandum order dated December 9, 2016, the trial court struck the
Borough’s tax claims for the tax years 1997 through 2004 and reduced the amount
of attorney fees due the Borough for the 2014 tax year.
On appeal,2 the Borough generally argues that the trial court erred or
abused its discretion in striking the real estate tax claims. More specifically, the
Borough argues that the trial court committed an error of law or abused its discretion
when it struck the Borough’s real estate tax claims filed for tax years 1997 through
2002 based on the GLS Praecipe, which Appellees offered into evidence without a
witness and which relates solely to an action filed to collect delinquent taxes owed
to another taxing body, Allegheny County. The Borough also argues that, with
regard to the 2003 and 2004 Borough real estate tax claims, the trial court committed
2
This Court’s scope of review of a trial court’s order on the sufficiency of an affidavit of
defense filed in response to a writ of scire facias sur tax claim and statement is limited to a
determination of whether the trial court abused its discretion or committed an error of law, or
whether constitutional rights were violated. See Valley Forge Sewer Auth. v. Hipwell,
121 A.3d 1164, 1167 n.4 (Pa. Cmwlth. 2015). An abuse of discretion exists where the conclusion
reached by the trial court overrides or misapplies the law, or where the judgment exercised is
manifestly unreasonable or the result of partiality, prejudice, bias, or ill will. Neshaminy
Constructors, Inc. v. Plymouth Twp., 572 A.2d 814, 816 n.1 (Pa. Cmwlth. 1990).
6
an error of law or abused its discretion when it struck those claims based solely on
the testimony of Mr. Mortimer and ignored the Borough’s prima facie documentary
evidence and testimony. Finally, the Borough contends that the trial court
committed an error of law or abused its discretion by reducing sua sponte the amount
of attorney fees due the Borough for the delinquent real estate tax claim for tax
year 2014.
As background, the act commonly referred to as the Municipal Claims
and Tax Liens Act (MCTLA)3 provides a specific method of challenging the entry
of a municipal claim, including municipal liens based upon unpaid real estate taxes.
Under the MCTLA, the assessment and imposition of a lien occurs without any
hearing, and a property owner may challenge the municipal lien after the lien is
recorded. City of Phila. v. Perfetti, 119 A.3d 396, 399 (Pa. Cmwlth. 2015), appeal
denied, 131 A.3d 493 (Pa. 2016). The MCTLA provides no mechanism for a direct
appeal from the entry of a municipal claim or lien. Instead, a party challenging a
municipal claim or lien must do so through a scire facias proceeding and cannot seek
to strike the municipal claim or lien on appeal. Section 16 of the MCTLA,
53 P.S. § 7184; N. Coventry Twp. v. Tripodi, 64 A.3d 1128, 1133
(Pa. Cmwlth. 2013). In Western Clinton County Municipal Authority v. Estate of
Rosamilia, 826 A.2d 52 (Pa. Cmwlth. 2003), this Court explained the procedure
governing municipal claims and scire facias procedure in Pennsylvania, as follows:
Once the municipality files a claim . . . , 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
3
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
7
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 . . . . In response to the writ, the owner may file an
affidavit of defense raising all defenses.[4]
....
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
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). Furthermore,
Section 20 of the MCTLA, 53 P.S. § 7187, provides, in part:
Tax claims and municipal claims shall be prima facie
evidence of the facts averred therein in all cases; and the
averments in both tax and municipal claims shall be
conclusive evidence of the facts averred therein, except in
the particulars in which those averments shall be
specifically denied by the affidavit of defense, or
amendment thereof duly allowed.
(Emphasis added.)
The Borough generally argues that the trial court erred or abused its
discretion in striking the Borough’s real estate tax claims when the Borough
4
“[T]he owner and the municipality [also] may choose not to do anything, thereby letting
the municipal lien remain recorded indefinitely subject to its revival . . . every twenty years upon
issuance of a suggestion of nonpayment and an averment of default.” Tripodi, 64 A.3d at 1133.
8
presented prima facie evidence of the claims and Appellees failed to present specific
evidence of payment of the taxes. The Borough notes that Appellees provided no
specific information as to when the taxes were paid, how the taxes were paid, or the
amount of any payments. Although Appellees introduced the GLS Praecipe as
evidence of payment of some of the taxes, the Borough disputes that the GLS
Praecipe evidences payment of any of the Borough’s taxes. The Borough also
observes that Appellees did not provide any receipts or cancelled checks that would
support proof of payment of taxes.
With regard to the real estate tax claims for the specific tax
years 1997 through 2002, the Borough argues that the trial court committed an error
of law or abused its discretion in striking the claims when it relied upon the GLS
Praecipe as evidence of payment of the taxes and that the Borough should have
caused the claims to be marked satisfied. The Borough notes that Appellees
introduced the GLS Praecipe into the record without the testimony of a witness.
Moreover, Attorney Mueller objected to its admission on the basis that the GLS
Praecipe was filed by GLS as the assignee of Allegheny County (not the Borough)
and, therefore, did not satisfy the Borough’s tax claims. Since the conclusion of the
hearing, Appellees concede that the GLS Praecipe and Municipal Claim Letter do
not evidence satisfaction of the real estate tax claims, and Appellees withdraw that
contention. (Appellees’ Br. at 2-3 n.2.) Thus, we must consider whether, in the
absence of the GLS Praecipe and Municipal Claim Letter, substantial evidence exists
to support a finding that Mr. Mortimer or his father paid the Property’s real estate
taxes for the tax years 1997 through 2002, as well as 2003, 2004, and 2014.
We agree that the Borough’s introduction of the delinquent tax docket
setting forth the delinquent tax claims for the years 1997 through 2004 and 2014
9
constituted prima facie evidence that the taxes are owing to the Borough. See
Section 20 of the MCTLA, as amended, 53 P.S. § 7187 (“Tax claims and municipal
claims shall be prima facie evidence of the facts averred therein in all cases[.]”). The
burden then shifted to Appellees to establish that the taxes had been paid.
As noted above, the Borough also contends that Appellees failed to
introduce specific evidence proving payment of the taxes, and, therefore, the trial
court erred in striking the taxes. In advancing this argument, the Borough relies
upon Section 20 of the MCTLA, which provides, in part: “[T]he averments in both
tax and municipal claims shall be conclusive evidence of the facts averred therein,
except in the particulars in which those averments shall be specifically denied by the
affidavit of defense, or amendment thereof duly allowed[.]” (Emphasis added.) The
Borough also cites to the Superior Court’s decision in General Municipal Authority
of Borough of Harvey’s Lake v. Yuhas, 572 A.2d 1291 (Pa. Super.) (Yuhas), appeal
denied, 593 A.2d 419 (Pa. 1990), for the proposition that the allegations in the
affidavit of defense must be certain and definite.5 The Borough then argues that, in
the absence of detailed and specific proof of payment, the trial court erred in finding
that Mr. Mortimer or his father paid the taxes for the years 1997 through 2004.
In Yuhas, a general municipal authority filed a writ of scire facias with
respect to three municipal sewer lines relating to several parcels of real estate. The
owners of the parcels filed a motion to strike writ of scire facias, which the trial
court treated as an affidavit of defense. In the “affidavit,” the owners of the parcels
disputed the amount of the sewer charges owed to the general municipal authority
and the manner in which payment was to be made, but none of the documents filed
5
Although decisions of the Superior Court are not binding on this Court, they may serve
as persuasive authority. Wertz v. Chapman Twp., 709 A.2d 428, 433 n.8 (Pa. Cmwlth. 1998), aff’d,
741 A.2d 1272 (Pa. 1999).
10
by the owners of the parcels indicated how the specific charges were inaccurate. The
general municipal authority filed a motion for entry of judgment for want of an
affidavit of defense, which the trial court granted. In so doing, the trial court found
that the affidavit “was indefinite, equivocal, vague, and evasive and contained
unsupported conclusions and opinions.” Yuhas, 572 A.2d at 1293. The trial court
concluded that the “documents [did] not satisfy the requirement that the affidavit be
‘certain and definite.’” Id. at 1294 (quoting Borough of Fairview v. Prop. Located
at Tax Index No. 48-67-4, 453 A.2d 728, 730 n.3 (Pa. Cmwlth. 1982)).
In Borough of Fairview, this Court considered a challenge to an
assessment for improvements. Noting that a property must be benefitted in order to
sustain an assessment for improvements and that benefit to an abutting property is
presumed when there has been improvement to a street, the Court considered
whether the owner of the property rebutted the presumption. We concluded that the
record showed no pleadings of facts to rebut the presumption of benefit, only bald
assertions that the street improvement did not benefit the property and that the
borough lacked authority to make the assessment. This Court then affirmed the trial
court’s order overruling the affidavit of defense. Borough of Fairview, 453 A.2d
at 730.
Both Yuhas and Borough of Fairview, however, are distinguishable
from the matter now before the Court, because those cases involved challenges to
the affidavits of defense themselves. Here, the issue is not whether the Affidavit of
Defense is sufficient to inform the Borough of the bases for Appellees’ challenge to
the Writ of Scire Facias.6 Rather, at issue in this case is whether the evidence
6
Moreover, in Yuhas, the owners of the parcels did not set forth the reason that they
believed the amount to be incorrect. In Borough of Fairview, the property owners did not state
11
produced at the hearing was sufficient to overcome the prima facie evidence that the
taxes are owing to the Borough. Thus, Yuhas and Borough of Fairview are not
directly on point. Furthermore, nothing in Section 20 of the MCTLA restricts the
type of evidence that a trial court may rely upon in reaching a determination.
As to the evidence presented to the trial court, Appellees argue that the
trial court properly struck the tax claims, because (1) the Borough produced no
witnesses with independent or direct knowledge relating to the disputed taxes at
issue; (2) Appellees produced the testimony of Mr. Mortimer, who had direct
knowledge of the facts and documents relating to all relevant periods prior to 2005;
and (3) the Borough commenced this action nearly 20 years after the first alleged
delinquency.
While it is true that the Borough’s witnesses were not personally
involved with the delinquent taxes for tax years 1997 through 2004, that
circumstance does not establish payment of the taxes nor does it negate or diminish
the fact that tax claims constitute prima facie evidence that taxes are owing. Mr.
Mortimer essentially testified that either he or his father paid all the real estate taxes
for the Property, but he did not have any records due to the passage of time. Mr.
Mortimer’s testimony, as a natural consequence of the passage of time and lack of
documents, lacked specificity. His testimony, however, also contained
inconsistencies or conflicted with documents of record. He testified inconsistently
as to whether he or his father paid the taxes. He also testified that he and his father
always worked together and paid all of the taxes, regardless of the identity of the
any facts in support of their legal conclusion that the street improvements did not benefit the
property. Here, Appellees contend that they do not owe the taxes because Mr. Mortimer or his
father paid the taxes. Unlike Yuhas and Borough of Fairview, such an assertion is sufficiently
specific to meet the requirements of Section 20 of the MCTLA.
12
taxing body, although the delinquent tax docket appears to contradict that they
always paid the taxes owed to Allegheny County and the school district. Instead,
the delinquent tax docket shows that they repeatedly failed to pay the Allegheny
County and school district taxes in a timely manner and that those taxes (for many
of the years) were paid only after the taxing body initiated litigation against the
Property. Furthermore, he did not appear to have any first-hand or personal
knowledge about the details surrounding the litigation involving Allegheny County
or the school district.
In finding Mr. Mortimer’s testimony credible that he or his father paid
the taxes for the years 1997 through 2004, the trial court relied, in part, on its
mistaken belief that the GLS Praecipe evidenced satisfaction of those taxes for the
years 1997 through 2002, which the parties now agree it did not.7 Because the trial
court based its findings on a document which did not establish satisfaction, contrary
to the trial court’s understanding, we must vacate the trial court’s opinion and order
and remand the matter to the trial court for the issuance of a new opinion and order
without consideration of the GLS Praecipe as evidence of satisfaction of the Borough
taxes for the years 1997 through 2002.
Finally, with regard to the attorney fees relating to the 2014 real estate
taxes, the Borough argues that the trial court erred or abused its discretion when it
sua sponte reduced the amount of the attorney fees that the Borough may collect in
connection with those taxes. The Borough included $2,610 in attorney fees in the
2014 delinquent claim (as of the date of argument) and notes that at no time during
the proceedings or in the Affidavit of Defense did Appellees challenge the amount
7
The trial court wrote: “I accept the documents presented and find that the Borough Taxes
for the period 1996 through 2002 were satisfied and that they are no longer owed and are struck
from the claim here being made.” (Trial court op. at 2.)
13
of the attorney fees. Thus, the Borough contends that the trial court erred in reducing
the amount by $2,110, thereby allowing the Borough to recover just $500 for
attorney fees. The reason for the trial court’s reduction is unclear, as the trial court
wrote:
I have found that only the 2014 taxes are still due. The
face amount is $373.60. The penalty on that amount is
$37.36; interest $24.91; lien cost is $25.00; and $46.09
service expense for a preliminary total for 2014 to be
$506.96. I will assess, an attorney’s fee of $500 and
therefore award $1,006.96 to the Borough against
Mortimer. In addition, record costs paid to file the
Complaint are awarded.
(Trial court op. at 4.) Moreover, the trial court took no evidence regarding the
attorney fees nor did it indicate to the parties during the hearing that it may reduce
the attorney fees demand.
Section 3 of the MCTLA provides that tax claims and tax liens, along
with attorney fees, are a lien on the Property and sets forth a procedure for imposing
and assessing attorney fees and for challenging the amount of the attorney fees.
Pursuant to Section 3(a)(1) of the MCTLA, 53 P.S. § 7106(a)(1), reasonable attorney
fees incurred in the collection of delinquent real estate taxes are made part of the lien
filed against the property for such delinquent taxes. Section 3(a.1) of the MCTLA,
53 P.S. § 7106(a.1), addresses the collection of reasonable attorney fees and
provides:
It is not the intent of this section to require owners to pay,
or municipalities to sanction, inappropriate or
unreasonable attorney fees, charges or expenses for
routine functions. Attorney fees incurred in the collection
of any delinquent account, including municipal claims,
municipal liens, taxes, tax claims and tax liens, shall be in
an amount sufficient to compensate attorneys undertaking
collection and representation of a municipality or its
assignee in any actions in law or equity involving claims
14
arising under this act. A municipality by ordinance, or by
resolution if the municipality is of a class which does not
have the power to enact an ordinance, shall adopt the
schedule of attorney fees. Where attorney fees are sought
to be collected in connection with the collection of a
delinquent account, including municipal claims,
municipal liens, taxes, tax claims and tax liens, the owner
may petition the court of common pleas in the county
where the property subject to the municipal claim and lien,
tax claim and lien or taxes is located to adjudicate the
reasonableness of the attorney fees imposed. In the event
that there is a challenge to the reasonableness of the
attorney fees imposed in accordance with this section, the
court shall consider, but not be limited to, the following:
(1) The time and labor required, the novelty and difficulty
of the questions involved and the skill requisite to properly
undertake collection and representation of a municipality.
(2) The customary charges of the members of the bar for
similar services.
(3) The amount of the delinquent account collected and the
benefit to the municipality from the services.
(4) The contingency or the certainty of the compensation.
(Emphasis added.)
Here, rather than recognizing that the attorney fees are part of the lien
on the Property and challengeable through the filing of a petition, it appears that the
trial court believed that it had the power to sua sponte assess an amount of attorney
fees to be paid in connection with the unpaid taxes. Such sua sponte action,
however, ignores the statutory framework set forth in Section 3 of the MCTLA for
challenging the amount of attorney fees included in a lien. Thus, the trial court
committed an error of law when it sua sponte reduced the amount of attorney fees
payable to the Borough in the absence of a petition filed pursuant to Section 3 of the
MCTLA. On remand, the trial court shall consider Section 3 of the MCTLA when
addressing attorney fees.
15
Accordingly, we vacate the order of the trial court and remand the
matter to the trial court for reconsideration and the issuance of a new opinion and
order, consistent with this opinion.
P. KEVIN BROBSON, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Borough of Bellevue, :
Appellant :
:
v. : No. 51 C.D. 2017
:
Lois J. Mortimer and :
Thomas J. Mortimer :
ORDER
AND NOW, this 7th day of June, 2018, the order of the Court of
Common Pleas of Allegheny County (trial court) is VACATED, and the matter is
remanded to the trial court for reconsideration and the issuance of a new opinion and
order, consistent with the opinion of this Court.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge