Wilkinsburg SD v. T.E. Koger ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilkinsburg School District :
:
v. :
:
Todd Elliott Koger, : No. 422 C.D. 2017
Appellant : Submitted: April 18, 2019
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 10, 2019
Todd Elliott Koger (Koger) appeals pro se from the Allegheny County
Common Pleas Court’s (trial court) December 29, 2016 order granting the
Wilkinsburg School District’s (District) Motion to Strike Koger’s Motion and
Addendum and to Enter Judgment (Motion to Strike and Enter Judgment), and
entering Judgment in favor of the District. Koger presents two issues for this Court’s
review: (1) whether jurisdiction has been established over the property located at 515
Kelly Avenue, Wilkinsburg, Pennsylvania (Property) and or the Property owner; and
(2) whether the prejudice of delay violated Koger’s and the Property owner’s
constitutional rights. After review, we affirm.
On July 28, 2005, the District filed a municipal lien for school taxes due
against the Property. On January 12, 2006, the District filed a Writ of Scire Facias
(Writ). The District obtained a default judgment on June 5, 2006, but the judgment
was stricken upon the District’s motion because of improper service of the original
Writ. The Writ was reissued on December 5, 2011, and personally served upon
Koger on January 9, 2012. On January 10, 2012, Koger filed a pro se Motion to
Dismiss and/or Answer. On January 19, 2012, the District filed an Answer to the
Motion to Dismiss and/or Answer. On March 31, 2016, Koger filed a pro se
Addendum to Preliminary Objections/Motion to Dismiss. On December 29, 2016,
the District filed the Motion to Strike and Enter Judgment, and the trial court granted
the Motion to Strike and Enter Judgment, dismissed Koger’s filings and entered
judgment against Koger in the amount of $2,972.54.
On January 30, 2017, Koger appealed to the Pennsylvania Superior
Court. On February 2, 2017, the trial court ordered Koger to file a concise statement
of the rulings and/or errors complained of on appeal (Rule 1925(b) Statement). On
February 9, 2017, the District filed a Motion to Quash Appeal and Objection to
Jurisdiction of Court (Motion to Quash). On February 14, 2017, Koger filed his Rule
1925(b) Statement. By February 23, 2017 order, the Superior Court transferred the
matter to this Court.1
On May 2, 2018, this Court denied the Motion to Quash without
prejudice. On May 9, 2018, Koger filed a Motion for Sanction/Judgment (Sanction
Motion) alleging a pattern of misconduct by the District against him. By June 11,
2018 order, this Court denied the Sanction Motion without prejudice. On July 30,
2018, this Court received the Original Record. On November 26, 2018, Koger filed a
Motion to Dismiss. By January 11, 2019 order, this Court denied Koger’s Motion to
Dismiss.
Koger first argues that jurisdiction over the Property and/or the Property
owner has not been established because his son owns the Property and he has never
been served or named in the cause of action. The District rejoins that Koger has
waived this argument by failing to fully develop it in his brief. Further, according to
1
“‘This Court’s scope of review of a trial court’s order disposing of a petition to strike a
municipal claim is limited to a determination of whether the court abused its discretion or
committed an error of law or whether constitutional rights were violated.’ Penn Twp. v. Hanover
Foods Corp., 847 A.2d 219, 222 n. 10 (Pa. Cmwlth. 2004).” Valley Forge Sewer Auth. v. Hipwell,
121 A.3d 1164, 1167 n.4 (Pa. Cmwlth. 2015).
2
the District, the record is devoid of any documents supporting Koger’s claim that his
son is the Property owner; the record supports that Koger is in fact the Property
owner and the correct party to the action.
Initially, Pennsylvania Rule of Appellate Procedure (Rule) 2119(a)
requires:
General rule. The argument shall be divided into as many
parts as there are questions to be argued; and shall have at
the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as
are deemed pertinent.
Pa.R.A.P. 2119(a) (text emphasis added). This Court has held:
‘[W]hen issues are not properly raised and developed in
briefs, when the briefs are wholly inadequate to present
specific issues for review, a court will not consider the
merits thereof.’ Commonwealth v. Feineigle, 690 A.2d 748,
751 n. 5 (Pa. Cmwlth. 1997). ‘Mere issue spotting without
analysis or legal citation to support an assertion precludes
our appellate review of [a] matter.’ Commonwealth v.
Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa. Cmwlth. 2002).
Boniella v. Commonwealth, 958 A.2d 1069, 1072 n.8 (Pa. Cmwlth. 2008).
Further, Rule 1921 provides:
The original papers and exhibits filed in the lower court,
paper copies of legal papers filed with the prothonotary by
means of electronic filing, the transcript of proceedings, if
any, and a certified copy of the docket entries prepared by
the clerk of the lower court shall constitute the record on
appeal in all cases.
Note: An appellate court may consider only the
facts which have been duly certified in the record
on appeal. Commonwealth v. Young, . . . 317 A.2d
258, 264 ([Pa.] 1974). All involved in the appellate
process have a duty to take steps necessary to assure
that the appellate court has a complete record on
appeal, so that the appellate court has the materials
necessary to review the issues raised on appeal.
3
Ultimate responsibility for a complete record rests
with the party raising an issue that requires
appellate court access to record materials. See, e.g.,
Commonwealth v. Williams, . . . 715 A.2d 1101, 1106
([Pa.] 1998) (addressing obligation of appellant to
purchase transcript and ensure its transmission to the
appellate court). . . . .
Pa.R.A.P. 1921 (emphasis added).
Here, Koger presents one page of argument in his brief to support his
two issues raised on appeal and includes only general statements, unsupported by
citation to applicable authority. Further, the “Sheriff[’s] Return” of service of the
Writ evidences that Koger was personally served with the Writ at the Property,
Supplemental Reproduced Record (S.R.R.) at 12b, and in his Motion to Dismiss and
Answer thereto, Koger does not aver that he is not the Property owner, but rather
claims the tax lien is defective and the Property is immune from execution due to his
bankruptcies. See S.R.R. at 15b. Nor does Koger aver non-ownership of the
Property in his Addendum to Preliminary Objection/Motion to Dismiss. Moreover,
Koger lists the Property’s address on all of his pleadings. Because Koger’s first
argument is not fully developed in his brief, see Pa.R.A.P. 2119(a); Boniella, and the
Original Record supports the conclusion that Koger is the Property owner, and
nothing therein counters that conclusion, see Pa.R.A.P. 1921, this argument must fail.
Koger next contends that the 14-year delay has caused his constitutional
rights to be infringed. The District responds that Koger has waived this issue because
he raises it for the first time on appeal.
Initially, Rule 302(a) requires: “General rule. Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). Further, the entirety of Koger’s argument in his brief is as follows:
One needs to look only as far as the Opinion dated July 27,
2018 (written 17 months after the Order that was appealed).
With such prejudice [Koger] and/or his son are without
4
opportunity for any fair hearing on this matter (among other
things, the argument related to the [District’s] use of the
Christmas Holiday disruption of the courts in 2016 to sneak
through a motion at issue just before New Year’s Eve).
Koger Br. at 8. Because Koger did not raise the issue of the violation of his
constitutional rights at any time prior to his brief to this Court, the issue is indeed
waived. See Pa.R.A.P. 302(a). Moreover, even if not waived, Koger has foreclosed
this Court’s review by his failure to develop the argument. See Boniella.
Accordingly, this Court cannot address this issue.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wilkinsburg School District :
:
v. :
:
Todd Elliott Koger, : No. 422 C.D. 2017
Appellant :
ORDER
AND NOW, this 10th day of July, 2019, the Allegheny County Common
Pleas Court’s December 29, 2016 order is affirmed.
___________________________
ANNE E. COVEY, Judge