Opinion
No. 847 C.D. 2011
02-21-2012
Foster Township v. Farida B. Rahman, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER
This case was assigned to the opinion writer on or before January 6, 2012, when President Judge Leadbetter completed her term as President Judge.
Farida B. Rahman, Appellant, proceeding pro se, appeals from the order of the Court of Common Pleas of Luzerne County (trial court), which entered judgment in favor of Foster Township (Township) and against her in the amount of $936.36 for failure to pay sewer fees and dismissed her counterclaim. We affirm.
On April 8, 2010, the Township filed an action in magisterial district court against Appellant, seeking payment of delinquent sewer fees. Prior to July 2009 the monthly sewer fee was $20.70. However, the Township raised the fee to $70 by passage of an ordinance. Appellant continued to pay the Township $20.70. On May 13, 2010, the district judge entered judgment in favor of the Township.
Appellant filed a notice of appeal and a rule to file complaint. The Township filed a two-count complaint with the trial court asserting that Appellant's failure to fully pay her sewer fee since July 2009 constituted either a breach of contract or unjust enrichment. Appellant filed an answer and new matter, asserting that the Township's sewer pipe located beyond her property was not buried four feet below the surface, and consequently, repeatedly froze during cold weather resulting in sewage backups damaging the interior of her home and requiring the installation of a septic system. The trial court scheduled an arbitration at which the Township failed to appear, and an award was entered in Appellant's favor. The Township filed a notice of appeal of the arbitration award. On February 7, 2011, the Township sent both Appellant and her attorney a copy of the certificate of trial readiness. The Township informed Appellant that it intended to file the certificate on February 23, 2011, and that she was required to complete formal discovery within 15 days of February 7.
Appellant was initially represented by counsel. However, her attorney quit in October 2010. Appellant informed the arbitration board of her pro se status. Appellant's former attorney never filed a withdrawal of appearance. Consequently, the trial court continued to send all communications to former counsel.
On March 15, 2011, the trial court scheduled a non-jury trial for April 11, 2011, and sent the scheduling order to counsel for both parties. At the trial, Appellant requested a continuance because she had not completed discovery and because she had not found out about the trial until April 6. The trial court denied the continuance, stating that he would hear the testimony of the Township's witnesses and Appellant and if Appellant had additional witnesses she wished to identify, he would hear their testimony at a later date. Appellant replied that she needed discovery regarding a $2.5 million grant from the Commonwealth to the Township, but the trial court informed her that discovery was closed. Brittany Kemper, a Township employee, testified regarding the delinquent sewer fees and Appellant testified on her own behalf. The trial court accepted Robert Weir, a professional engineer who provides engineering services to the Township, as an expert. Weir testified that he visited Appellant's property to inspect the power feed and determined that there were not any sewer issues. Appellant testified that the sewage pipe outside her property is not buried at least four feet below the surface. As a result, during cold weather, the sewer pipe froze and raw sewage backed up into her house. She further testified that a plumber examined her plumbing system and did not find any blockages and recommended that she install a septic tank system. The trial court rendered a decision in favor of the Township, finding that Appellant owed $962.36 in back fees, penalties, and costs and that Appellant had failed to meet the burden on her counterclaim to demonstrate that the Township was responsible for the damage to her home. Appellant filed a motion for post-trial relief asserting that the trial court rendered its decision without permitting her to submit additional evidence and testimony from witnesses, after stating it would do so. The trial court denied the motion for post-trial relief. This appeal followed.
Appellant argues that the trial court abused its discretion, asserting that the evidence in the record does not support the trial court's decision and that the lack of notice regarding the trial date violated her due process rights. The Township argues that it is entitled to attorney's fees pursuant to Pennsylvania Rule of Appellate Procedure 2744 because Appellant's appeal is devoid of merit.
When reviewing a denial of post-trial motions, we must determine whether the trial court abused its discretion or committed error of law. Twp. of Lower Milford v. Britt, 799 A.2d 965, 968 (Pa. Cmwlth. 2002).
First, Appellant argues that she met her burden of proving that the Township's sewage pipe damaged her property. Appellant asserts that her own testimony regarding the failure of the Township to properly bury the sewer pipe and the opinion of her plumber satisfies her burden. The Township presented the conflicting expert testimony of Mr. Weir, who opined that he saw "nothing out of the ordinary" and "no signs of any problems" and there was "enough cover over the sewer line." Notes of Testimony at 20 - 21; Reproduced Record (R.R.) at 71a. By dismissing Appellant's counterclaim, the trial court implicitly credited the testimony of the Township's witnesses over that of Appellant. It is well settled that "[q]uestions of credibility, conflicts in the evidence and the weight to assign evidence are matters for the trier of fact to resolve and will not be disturbed on appeal." Consol. Return by McKean County Tax Claim Bureau ex rel. Howard, 820 A.2d 900, 903 (Pa. Cmwlth. 2003). We cannot reweigh the evidence on appeal.
Next, Appellant argues that her due process rights were violated because 1) the trial court continued to send all notices to her former attorney and, therefore, she did not have adequate notice of the trial date, and 2) that the trial court never offered her the opportunity to conduct discovery or submit the testimony of additional witnesses. Appellant's former counsel never withdrew his entry of appearance. Consequently, he remained the attorney of record and when notice is given to the counsel of a party, it is considered notice to the party. Ozark v. Zoning Hearing Bd. of the Borough of West Pittston, 507 A.2d 932 (Pa. Cmwlth. 1986). Contrary to Appellant's assertions, she was given notice of the closing of discovery. On February 7, 2011, the Township sent Appellant's former counsel a letter informing him that he had 15 days to complete discovery as the Township would be filing a certificate of trial readiness on February 23. The Township also sent the February 7 letter and a copy of the certificate of trial readiness to Appellant. Appellant made no effort to conduct discovery during this time or to contact counsel for the Township. Appellant also argues that her due process rights were violated because the Township did not file a certificate of service for its notice of appeal of arbitration award. The Township was not required to file a certificate of service as it is the prothonotary's duty to provide notice to all parties. Pa.R.C.P. No. 1308(b). With regard to notice of the trial scheduling, Appellant found out about the trial date at least five days prior to the scheduled date, as she filed a motion for judgment on the pleadings requesting either dismissal of the case or a continuance so that she could conduct discovery. While not a lengthy amount of time to prepare, five days constitutes adequate notice, as Appellant was able to appear the day of the trial. Birdsall v. Carbon County Bd. of Assessment & Revision of Taxes, 649 A.2d 740 (Pa. Cmwlth. 1994) (stating that the grant or denial of a request for a continuance is within the discretion of the trial court and will be reversed only where there has been an abuse of discretion).
Pennsylvania Rule of Civil Procedure 1012, Pa.R.C.P. No. 1012, requires that an attorney who wishes to discontinue representation must seek leave of court. An attorney need not seek leave of court if another attorney has entered an appearance simultaneous to the withdrawal of appearance. Neither of these actions occurred, so Appellant's former attorney remained attorney of record and the trial court continued mailing notices to former counsel.
Appellant next asserts that the trial court violated her due process rights when it dismissed her counterclaim because the trial court never scheduled an opportunity for Appellant to submit the testimony of additional witnesses. At the trial, Appellant requested a continuance so that she could conduct discovery. The trial court denied the continuance, stating:
Here's what we're going to do. I'm going to take their testimony. If you want additional witnesses I will give you an opportunity to present those witnesses at a later date. You're here to testify. If you have additional witnesses, identify them for me, and I will give you additional time after we take their testimony.R.R. at 68a. The trial court engaged in a second colloquy with Appellant at the end of the trial.
THE COURT: I understand your argument. We've been over this. I told you I will give you additional time if you have some witness that you want to bring in or whatever, we can do that at a later date. If not, I will decide on the arguments you have presented and what they've presented.R.R. at 72a - 73a. Appellant never identified for the trial court the additional witnesses. She simply reiterated her desire to obtain discovery regarding a $2.5 million grant that the Township received from the Commonwealth for sewer maintenance. Evidence regarding such a grant would have been of scant relevance. Further, Appellant did not need to obtain discovery from the Township for evidence regarding her counterclaim. In addition to the testimony she put into evidence, she could have presented pictures of the allegedly exposed sewer pipe or the testimony of other witnesses (if any existed) regarding the cause of the sewage backups, but failed to do so. Moreover, there is nothing in the record to suggest that that Township possessed any information beyond that presented regarding Appellant's claim of sewer backups or damage resulting therefrom. Accordingly, we find no violation of Appellant's due process rights.
THE DEFENDANT: Your Honor, I will need the documents from them for the discovery which has not been done.
THE COURT: The time for discovery has passed. That's not my rule, that's the Rules of Civil Procedure. I know you're not a lawyer, but I have to abide by the rules and so do you.
Appellant seems to believe that the grant was intended to allow the Township to keep the sewer fee low and that the Township improperly raised the monthly fee from $20.70 to $70 despite receiving the grant money. However, whatever the intended purpose of the grant, the Township passed an ordinance raising the fee and Appellant was lawfully obligated to pay it unless and until it was overturned. --------
Finally, we turn to the Township's assertion that it should be awarded attorney's fees because Appellant's appeal was frivolous. Appellate Rule 2744 provides that reasonable counsel fees may be awarded if the Court determines that an appeal is "frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious." Greenfield Twp. Mun. Auth. v. D.R. Burket Trust, 959 A.2d 522, 527-528 (Pa. Cmwlth. 2008). A frivolous appeal lacks any reasonable basis in law or in fact. Id. In this case, the record fails to demonstrate that Appellant's behavior was either vexatious or dilatory. Although we reject her arguments, we believe they were made in good faith and do not find them wholly frivolous.
For all of the foregoing reasons, we affirm the order of the court of common pleas and deny the Township's request for counsel fees.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge ORDER
AND NOW, this 21st day of February, 2012, the order of the Court of Common Pleas of Luzerne County is hereby AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
President Judge BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH
OPINION NOT REPORTED
DISSENTING OPINION BY JUDGE BROBSON
I must respectfully dissent from the portion of the majority opinion that affirms the trial court's decision to enter judgment in favor of Appellee Foster Township (Township) on the counterclaim of Appellant Farida B. Rahman (Rahman).
At issue is the portion of the trial court's April 11, 2011 Opinion and Order, which provides: "The Court further finds that Defendant did not meet the burden of her Counterclaim and failed to show that Foster Township was responsible for any problems associated with the sewer system in Defendant's house." The majority reasons that when given the opportunity by the trial court to identify witnesses who would testify in support of her counterclaim, Rahman failed to do so, thereby justifying the trial court's decision on the counterclaim. The majority, therefore, holds that Rahman forfeited the opportunity to present additional witnesses on her counterclaim, because she "never identified for the trial court the additional witnesses. She simply reiterated her desire to obtain discovery regarding a $2.5 million grant that the Township received from the Commonwealth for sewer maintenance." (Majority Op. at 6.) I cannot agree with the majority's conclusion based upon my reading of the trial transcript in this case.
At the outset of the April 11, 2011 trial, Rahman objected to the trial and requested a continuance on two grounds: (1) lack of adequate advance notice of the trial, and (2) lack of discovery. (R.R. at 67a.) Notwithstanding the Township's arguments to the contrary, the trial court actually sided with Appellant on the notice issue. (Id.) Considering the fact that the Township's witnesses were prepared to testify and the cost associated with bringing the Township's witnesses back for a continued hearing, however, the trial court struck what appears to be a reasonable compromise. On Rahman's oral motion for a continuance, the trial court ruled:
Here's what we're going to do. I'm going to take [the Township's witnesses'] testimony. If you want additional witnesses I will give you an opportunity to present those witnesses at a later date. You're here to testify. If you have additional witnesses, identify them for me, and I will give you additional time after we take [the Township's witnesses'] testimony.(Id. at 68a.) The trial court then went on to take the Township's evidence.
Then, as the majority correctly points out, the trial court engaged in the following colloquy with Rahman at the end of the trial:
THE COURT: I understand your argument. We've been over this. I told you I will give you additional time if you have some witness that you want to bring in or whatever, we can do that at a later date. If not, I will decide on the arguments you have presented and what they've presented.
THE DEFENDANT: You Honor, I will need the documents from them for the discovery which has not been done.(Id. at 72a-73a.) That colloquy continued, however:
THE COURT: The time for discovery has passed. That's not my rule, that's the Rules of Civil Procedure. I know you're not a lawyer, but I have to abide by the rules and so do you.
THE COURT: We're here, today's your day in court, so you've had your chance to argue. Do you have anything further to add or is it their opportunity to question you. [sic]
THE DEFENDANT: Yes, I mean, I really like that this problem is solved. The engineer said he didn't see anything, he didn't have no lens. The exposed part I could see it with my eyes. I don't know how he missed that one. It's right there.
THE COURT: That's why you're here to testify. You're saying I am contradicting what he said.
THE DEFENDANT: Yes.
THE COURT: I am here, I am the trier of fact and I have to decide who is telling the truth. It's not easy, but...
THE DEFENDANT: I understand. The exposed pipe is there, I can bring in my people who saw that. If they're fighting for $20 and $30, whatever they are claiming, I really don't know. I owe them no money, they owe me for my damages. The problem should be fixed because I'm not going to be living without water and without a bathroom all winter long.
When you flush it doesn't go because the pipe is blocked, it's frozen. If the pipe is not four feet under, they say they can't do nothing about it. I don't know where they came from. I can show people. People can testify that there's a pipe, you can see it with your own eyes. You don't need no special engineering or PhD. degree to see that. . . .(Id. at 73a (emphasis added).)
Importantly, the proceeding below involved two claims. The first was the Township's action for unpaid fees. The second was Rahman's counterclaim for damages due to the Township's alleged negligence in installing and/or maintaining the Township's public sewer service. Whenever Rahman raised the issue of discovery during the trial, she did so in relation to the Township's action for unpaid fees, not Rahman's negligence counterclaim. Significantly, Rahman never stated that the inability to conduct discovery would prevent her from presenting additional witnesses with regard to her counterclaim. In fact, as the above colloquy shows, Appellant clearly stated: "The exposed pipe is there, I can bring in my people who saw that. . . . I can show people. People can testify that there's a pipe." (Id.) Accordingly, Rahman's responses to the trial court should not be interpreted as a forfeiture of her ability to present additional witnesses in support of her counterclaim at a later date.
Considering the entirety of the transcript, I see no point where the trial court, after ruling favorably on Rahman's continuance request, directed Rahman to identify that day, during that trial, the witnesses that Rahman wanted to present at a later time. Even if the trial court did so direct, Rahman stated on the record that she could present witnesses in support of her counterclaim, though not specifically by name. At that point, however, if the trial court wished Rahman to identify each witness with specificity, the trial court should have instructed Rahman to do so on the record. I do not believe that even an attorney in Rahman's position (she appeared pro se) would construe the trial court's initial ruling on Rahman's continuance request and later statements regarding Rahman's complaints about a lack of discovery as an affirmative directive that Rahman identify during the trial, with specificity, the witnesses she would call at a continued trial, or be precluded from presenting additional evidence on her counterclaim.
In short, if the trial court intended that Rahman identify at the trial the specific witnesses she would present in support of her counterclaim if the trial court were to grant her continuance request, such intent is not clearly reflected in the transcript. It is clear, however, that the trial court granted Rahman's continuance request because she lacked fair and adequate notice of the trial. Under these circumstances, I believe the trial court erred in entering judgment in favor of the Township on Rahman's counterclaim. I would, therefore, reverse that portion of the trial court's order and remand for further proceedings. On remand, the trial court should order Rahman to identify the witnesses she intends to call at a continued trial on her counterclaim. If she does, then the trial court should schedule and hold the continued trial to give Rahman the opportunity to present those witnesses. If she does not identify witnesses, then, in light of the trial court's ruling granting the continuance request, it would be appropriate at the time for the trial court to enter judgment in favor of the Township on Claimant's counterclaim.
/s/_________
P. KEVIN BROBSON, Judge