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Archive for the tag “municipal”

Strict Compliance with the Municipal Liens Act is Required to Collect

The Commonwealth Court of Pennsylvania (“Court”), in the matter of City of Philadelphia v. Manu, 2013 WL 4768308, has made it clear that it expects strict compliance with the black letter of the Municipal Liens Act (“Act”). Defendant Agnes Manu (“Manu”), who litigated pro se, appealed an Order of the Court of Common Pleas of Philadelphia (“CCP”) denying her motion to strike or vacate and that provided the context for the Court to make its ruling and issue its opinion accordingly.

The procedural history of this matter is somewhat complex. Manu owns real estate (“Property”) in Philadelphia that is allegedly the subject of a municipal lien held by the City of Philadelphia (“City”). In January 2011 the City filed a petition with the CCP requesting permission to sell the Property free and clear of all encumbrances for delinquent water and sewer rents. The liens claimed by the City included one entered on August 27, 1987 for an unpaid water/sewer bill totaling $0.00 (no, that is not a typographical error) which was amended in its January 2011 petition to include an alleged claim of $657.54, plus interest and penalties, for City taxes allegedly owed in 1986.

In its January 2011 petition, the City identified seven (7) different parties, along with the United States, which/who allegedly have an interest in the Property based on the tax information certificate, and requested the CCP to issue a rule upon these aforesaid parties. For reasons which are unclear from the record available, the CCP issued a rule only upon Manu and directed that service should be made in the matter for writs of scire facias pursuant to the Act. The CCP granted Manu’s request for additional time to respond to the aforesaid rule, but instead of responding to the rule, Manu elected to file a motion to stay the proceedings on the basis that she had filed an appeal nunc pro tunc with the Board of Revision of Taxes due to, Manu alleged, never having received service of any tax assessment notice since 1998. Perhaps, due to the fact that Manu failed to respond to the rule, and filed a motion to stay instead, the CCP entered orders denying the motion to stay and granting the City permission to sell the Property as it requested and described above. The CCP indicated that it was satisfied that the rule was properly served and, indeed, served upon all relevant parties.

A few days after the above two (2) orders by the CCP were entered, Manu filed a motion for clarification as she could not discern whether the lien was for water/sewer bills or real estate taxes, nor was it clear how much she owed; the CCP denied this motion. Subsequent to the motion for clarification, Manu then filed a motion to strike or vacate the CCP order permitting the sale of the Property due to lack of jurisdiction based on the failure to effect proper service pursuant to the Act; this motion, too, was denied by the CCP and Manu appealed that denial. The appeal of this denial is the subject of the Commonwealth Court case described herein. While the above was transpiring, another party, namely Informational Management Group, Inc., filed a petition to intervene and open on the basis that it, too, was never properly served with the underlying lien and was not joined into the case by the City as an indispensable party; the CCP denied this petition as well.

When analyzing this matter, the Court began by emphasizing that the Act lays out a specific, detailed, and exclusive procedure which must be followed with precision. Furthermore, the Court made it clear that the City had the burden of proving strict compliance with the Act. In its review of how the CCP handled this case, the Court observed that the CCP did not even require substantial compliance with the Act, let alone strict compliance. Namely, the petition filed by the City did not provide a list of all the municipal claims at issue or a sense of their magnitude; indeed a lien which totals $0.00 is absurdly the opposite of demonstrating its magnitude, even if the City later revealed it is actually pursuing at least $14,702.99. In addition, without any explanation in the record, and at variance with the requirements of the Act, the CCP issued a rule only upon Manu instead of all interested parties and, further, none of the parties were served in the manner required by the Act. The Court noted that the Act is somewhat confusing inasmuch as one (1) section requires personal service and posting whilst another requires posting and first class mail; what was not confusing to the Court was that the record of the proceedings in CCP revealed that service was not perfected on any party using any of the above-listed options. Moreover, even if service was perfected, the Act requires the CCP to hold a hearing to determine whether service was properly perfected on all parties, whether there was contemporaneous publication of the rule, and whether the facts alleged in the petition are true. Needless to say, the CCP record contained absolutely no evidence that such a hearing was ever held. The CCP must make an independent inquiry into whether the City strictly complied with the Act and the CCP record reveals no such inquiry ever occurring.

Finally, the City attempted to argue that Manu’s appeal was untimely filed. The Court dispensed with this argument by pointing out that the CCP continued to retain jurisdiction over the Property when the sale of the same had neither occurred nor concluded. Regardless, the Court ruled that a petition to open a judgment can be filed at any time when there is a lack of subject matter jurisdiction and Manu’s claim that not all parties were served and, indeed, not all indispensable parties were joined into the case, clearly deprives the CPP of subject matter jurisdiction over the case.

In the final analysis, the Court in the instant matter made it abundantly clear that a municipality pursuing liens must strictly comply with all of the terms of the Act in order to collect on its alleged liens and Courts of Common Pleas must ensure compliance.

Originally published in Upon Further Review on October 22, 2013 and can be viewed here.

Aggrieved Parties and Their Right to Appeal

The Rules of Civil Procedure are designed to facilitate litigation so it can be performed smoothly and predictably. Unfortunately, one simply cannot predict and write a rule for every possible contingency that could happen in the life of a case. There will always be circumstances that seem to fall into the cracks between the rules.

Pa.R.C.P. 1028(a)(1) requires a complaint be dismissed when the court lacks jurisdiction over the subject matter and/or the parties to a claim. Pa.R.C.P. 1028(5) requires a complaint be dismissed when a plaintiff lacks standing to file one on the issues contained therein. What if a plaintiff sues two defendants in municipal court, wins a judgment for jurisdictional limits against only one defendant but files an appeal to the court of common pleas against both parties despite having won as much as legally permitted against one of the defendants?

Although, pursuant to 42 Pa.C.S.A. §5105, a party may file an appeal from a final order, it could be argued that only an aggrieved party may file an appeal, as in Pierro v. Pierro, 434 Pa. 131 (1969). Pennsylvania case law has something to say on this subject: “Standing [to file an appeal] requires an aggrieved party, and one ‘who is not adversely affected in any way by the matter which he seeks to challenge is not ‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge,’” as the court held in Lisa H v. State Board of Education 67 Pa.Cmwlth. 350 (1982), quoting William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168 (1975).

If our hypothetical plaintiff above won a judgment against one of the defendants for full jurisdictional limits in municipal court, it could be argued, per the above case law, that the plaintiff is not an aggrieved party, as he won his case against the defendant as completely as possible according to his own complaint and the municipal court rules. As he is not aggrieved, it could be argued, he has no standing to file an appeal of that judgment to the court of common pleas against that defendant. If the plaintiff had no standing and, therefore, could not file an appeal of the judgment, the court of common pleas, theoretically, has no jurisdiction over the person or subject matter at issue as it pertains to that one defendant.

The statute and cases seem to point in the direction that only a truly aggrieved party can file an appeal. Unfortunately, there seems to be a conspicuous absence among the relevant cases and statutes as to precisely whether a party that completely wins its case against a party, particularly in municipal court, is actually an aggrieved party with the right to appeal. It would seem that this issue is ripe for testing in the courts as soon as the opportunity arises.

Originally published in The Legal Intelligener Blog on May 21, 2013 which you can see here.

ERLC: Town’s sign code violates church freedom

This is from anglicansablaze.blogspot.com which you can find here.

The excerpt of the Anglicans Ablaze post is as follows: “The Southern Baptist Convention’s religious freedom entity has called for the U.S. Supreme Court to strike down a municipal sign ordinance it says violates a church’s free speech and assembly rights.

The Ethics & Religious Liberty Commission (ERLC) joined in a friend-of-the-court brief filed Sept. 22 that contends the sign code of Gilbert, Ariz., discriminates against churches while favoring political and ideological messages. The brief, filed by the Christian Legal Society (CLS), asserts the code is based on a sign’s content and therefore abridges the First Amendment’s free speech clause.

The high court will hear oral arguments in the case, Reed v. Town of Gilbert, in January or thereafter. It is expected to announce an opinion in the significant church-state case before it adjourns early in the summer of 2015.”

You can learn more about this issue here.



Ripeness Spoils Church’s Efforts

In the matter of Shenkel United Church of Christ v. North Coventry Township, 2009 WL 3806769, Shenkel United Church of Christ (“the Church”), has recently found its efforts to fight homelessness spoiled by the doctrine of ripeness.
In order to fulfill its Biblical mandate to care for the needy among us, the Church, for several years, participated in a Montgomery County run program called “One Night at a Time”. “One Night at a Time” helped homeless persons find shelter for one (1) month during the winter. For a reason unrelated to the case discussed herein, in 2005 Montgomery County discontinued the “One Night at a Time” program. Instead, Montgomery County directed its homeless population to a local state hospital. Unfortunately, it became apparent that the local state hospital was inadequate to meet the needs of the County’s efforts against homelessness, as overcrowding became a persistent problem. In 2007, in response to the continued homelessness problems in Montgomery County, and the overcrowding of the state hospital, a Christian organization, called Ministries for Main Street, was formed to help combat homelessness. The services offered by Ministries for Main Street were, in essence, the same as those offered by the “One Night at a Time” program. As the Church was an active participant with the “One Night at a Time” program, it attempted to similarly participate in Ministries for Main Street.
Before participating in Ministries for Main Street, the Church dutifully notified North Coventry Township (hereinafter “the Township”) of its intention to do so toward the end of 2007. Although the Township had no objection to the Church’s participation in “One Night at a Time” two (2) years previous, the Township now, suddenly, objected to the Church’s participation in Ministries for Main Street, even though the Church was to provide the same services as before. The Township’s objection primarily revolved around its allegation that the Church’s efforts with Ministries for Main Street would violate both the Township’s zoning laws and building codes. Specifically, the Church was zoned for assembly purposes, and not as a residence as required to house the homeless even temporarily. Additionally, the Township’s Fire Marshall sent a letter to the Church informing it that, considering the Church’s present zoning, it could not contain sleeping facilities pursuant to the applicable fire safety requirements. As a result of the clear resistance of the Township, the Church elected not to participate in the Ministries for Main Street program. The Township subsequently indicated to the Church that if the Church was interested in participating in the Ministries for Main Street program, it would need to apply for a variance from the zoning and/or building and/or fire codes.
Instead of requesting a variance, in October 2008 the Church elected to file an application with the Township’s Zoning Hearing Board, requesting a determination that it did not need a variance to participate in the Ministries for Main Street program. After a number of postponements, and unsuccessful negotiations with the Township, the Church withdrew its aforesaid application. Instead, the Church elected to pursue its goals through litigation and brought suit against the Township alleging the Township had violated the Religious Land Use and Institutionalized Persons Act, the Pennsylvania Religious Freedom Protection Act, and the Free Exercise Clause of the First Amendment of the United States Constitution.
In reaching its decision, the Court never addressed the substantive allegations made by the Church. Instead, the Court refocused the matter onto whether the matter is, ultimately, a land use issue. Consequently, the Court focused on whether the Church’s claims against the Township were ripe in the context of a land use matter. When enunciating the standard for ripeness, the Court cited to Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985) and Murphy v. New Milford Zoing Commission, 402 F.3d 342 (2nd Cir. 2005). In order to determine whether a matter is ripe when a land use issues arises from constitutional claims, such as the matter discussed herein, “the government entity charged with implementing the regulations [must reach] a final decision regarding the application of the regulations to the property at issue.” See Williamson. Based on the preceding, when applying the standard for ripeness, the Court investigated into whether the Township’s “decision maker”, in this case the Zoning Hearing Board, had reached a definitive position on the salient issues. It is only upon the Zoning Hearing Board’s having reached an adverse decision against a land owner, in this case the Church, that a land owner is inflicted with an actual and recoverable injury which can serve as the basis for a civil action. The Court developed the above standard because it did not to want the Court to devolve into becoming a glorified land use board dealing with effectively local issues. It wanted to ensure that the local zoning boards would be the primary places where land use issues, such as the one in the matter at hand, are dealt with and resolved. Indeed, the Court specifically indicated its belief that the local boards are in a better position to make local decisions than the Court. Therefore, an issue is only ripe if a final decision is rendered by the local authority and/or it can be proven that the pursuit of a variance would be a futile effort.
The Church argued that the above enunciated ripeness standard ought not apply; it argued, instead, that the instant matter is not about land use and, therefore, another ripeness standard should apply. To that end, the Church argued that the standard laid out in Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3rd Cir. 1990) was the appropriate standard by which the Court should render its decision. The key distinction between the standard laid out above, and the standard established in Step-Saver Data Systems, Inc., is that the matter at issue in Step-Saver Data Systems, Inc. took place in the context of a declaratory judgment as opposed to the context of a land use matter. Under Step-Saver Data Systems, Inc., the analysis would be to determine whether: (1) the parties’ interests are sufficiently adverse; (2) the court can issue a conclusive ruling in light of potentially evolving factual developments; and (3) the decision will render practical help the parties. The Church asserted that the instant matter was, in fact, a declaratory judgment matter as it was seeking declaratory and/or injunctive relief of a pre-enforcement matter.
When rendering its decision, the Court simply did not find the Church’s arguments, or the cases it cited in support of the same, persuasive in the face of the Township’s assertion that the matter is, at its core, a land use matter. Specifically, the Court stated that since the Church’s action against the Township centered directly upon how the Township’s Zoning Officer and Fire Marshall applied the zoning regulations to the Church’s proposed use of its land; based upon this, the Court indicated, it was clear that the matter was, at its core, a land use matter as opposed to some sort of declaratory judgment matter. To sum up its rationale, the Court explained that “[s]ince the Church has not stated a facial challenge to the Township ordinances, the Church is essentially asking this Court to rule on the application of those ordinances before the Township itself has had the opportunity to do so.” A question of the application of ordinances for the use of land is, therefore by definition, a land use matter and the Williamson standard applies. It is worth noting that the Court mentioned, as dictum, that it may not have reached a different decision even if it used the cases the Church citied to in support of its position. How that would play out, of course, may never be known.
Allowing the matter to proceed to ripeness has a fourfold positive effect on a matter such as the one discussed herein. First, it allows for the local authority to render a decision and develop a complete record. Second, it is only after the pursuit of the variance process will the property owner, and the court by extension, know how the ordinances will be applied. Third, the variance needed may actually be granted which would, of course, eliminate the need for judicial entanglement into the affairs of a church. Fourth, it reinforces a basic federal principle that land use disputes are uniquely a matter of local concern as opposed to that of a Court.
The Court ultimately decided that the Church’s matter was simply not ripe enough to hear at this time. The Court noted that as the Church failed to pursue a variance, withdrew is application to the zoning board wherein it asserted that it did not need an application, and never pursued any sort of appeal of the Zoning Board or Fire Marshall’s decisions, that the Church never let the matter reach any decision at any level previous to bringing a civil action. Due to these decisions made by the Church, the Court ruled that the Church never permitted its matter to ripen sufficiently to warrant the engagement of the Court in such a matter.
In the final analysis, the central matter in this case is whether the question at issue is a land use matter or a declaratory judgment matter. For the reasons noted above, the Court decided it was a land use matter and that the Church did not permit the matter to sufficiently ripen to warrant a civil action. The principle to take away from the decision discussed herein is that, when dealing with a land use issue, all local administrative remedies must be exhausted before initiating a civil action.
Finally, one of the issues never addressed by the decision discussed herein, and one that this author thinks is rather peculiar, is why the Church was permitted to house the homeless when it participated “One Night at a Time” program but not permitted to do the same in the Ministries for Main Street program, even though the Church’s facilities were substantially the same at all times material to the case. This clearly apparent, unexplainable, and seemingly arbitrary change in the Township’s policy toward the Church seems to this author to involve more than just a land use issue; in actuality, it would seem that the religious freedom of a Church to achieve its social goals in the community is at issue. Perhaps if further investigation was done to determine why the Church was suddenly restricted from performing a service it performed for many years without the Township’s interference, a fresh perspective on whether the matter was actually ripe could have stopped the spoiling of the Church’s efforts to combat homelessness.

This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on October 8, 2010 and can also be found here on my website.

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