Opinion
1340 WDA 2023
12-19-2024
ISAAC USOROH v. TODD ELLIOT KOGER, SR. AND TODD ELLIOT KOGER, JR. APPEAL OF: TODD ELLIOT KOGER, SR.
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered August 9, 2023 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-22-013385.
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
KUNSELMAN, J.:
In this ejectment action, Todd Elliott Koger, Sr. appeals pro se from the order granting summary judgment to Isaac Usoroh, the Buyer of real property at a sheriff's sale. Father claims the sheriff's sale was invalid, because Son was an unnamed, indispensable party to the underlying, tax-lien action. We disagree and affirm.
Todd Elliott Koger, Jr. was also a defendant. For sake of simplicity, we refer to Mr. Koger, Sr. as "Father" and to Mr. Koger, Jr. as "Son."
Mr. Koger authored his filings as if he were an attorney representing, as he put it, "the Koger family." He is not. Non-attorneys may not represent other parties in the courts of this Commonwealth. See, e.g., Spirit of the Avenger Ministries v. Commonwealth, 767 A.2d 1130, 1131 (Pa. Cmwlth. 2001) (holding that a pastor, being a non-attorney, could not represent the church in an appeal of the denial of the church's application for tax-exempt status); Westmoreland County v. RTA Group, Inc., 767 A.2d 1144, 1151 (Pa. Cmwlth. 2001) (holding that a real-estate-consulting service engaged in unauthorized practice of law by processing clients' tax-assessment appeals); Walacavage v. Excell 2000, Inc., 480 A.2d 281, 284 (Pa. Super. 1984) (holding that a corporation corporate officer/shareholder who is not an attorney may not represent the corporation). Father may not represent his family or relatives in this Court or any Pennsylvania court. Moreover, the trial court's order granted summary judgment to Son. The trial court dismissed Son from the action, because he no longer lived at the property and had no intentions of returning to it. As such, Son is not a party to this appeal, and we amended the caption to reflect that fact. Additionally, we note that Father filed an application to quash after the appeal was submitted to this panel for disposition. Given our decision below, we dismiss his application to quash as moot.
On November 18, 1999, the United States Secretary of Housing and Urban Development ("HUD") deeded a home at 515 Kelly Ave. in Wilkinsburg, Pennsylvania to "Todd Elliott Koger." Complaint Ex. C at 4. Father was an adult at the time, and Son was four years old. The Kogers moved into the property, but, at some point, Father neglected to pay the school taxes.
In 2005, Wilkinsburg School District sued Father in the Court of Common Pleas of Allegheny County based on a municipal-tax lien, at docket number GD-05-018165. The trial court summarized the procedural posture of that case and Father's subsequent, pro se bankruptcy filings as follows:
Following the filing of the municipal lien, service was attempted [by the School District] on the property and on [Father] in 2005 and 2006. A default judgment was taken [by the School District] on June 5, 2006, but it was struck five years later upon a motion filed by the lien holder, because the initial service was deemed to be defective. By order dated June 30, 2011, the Honorable Judge Joseph James struck the default judgment, but nothing in that order barred the Wilkinsburg School District from curing by reserving the writ [of scire facias]. New service of the writ took place on or about January 9, 2012.
Notably, [Father] filed a number of bankruptcy actions on behalf of himself, his wife, and [Son] alleging different variations of who actually owned the property. See In re Koger [630 B.R. 1 (Bankr. W.D. Pa. 2021), affirmed at 2:21-cv-00759-WSH (W.D. Pa. 2021)] at *4-5. The bankruptcy filings coincided with periods of inactivity from 2005 to 2016 on the [trial court] docket. The last bankruptcy filed by [Father] relating to the property . . . resulted in [an] opinion authored by Judge Agresti.
Judge Agresti's opinion clarified[:]
. . . there is no such ruling that ever found [Son] to be the owner of the property. [The Opinion then lifted the bankruptcy stay on the state-court proceeding.]
* * *
Retuning to [state] docket GD-05-018165, on December 29, 2016, the [School District] presented and filed a Motion to Strike [Father's] Motion and Addendum and to Enter Judgment. The [School District's] Motion was granted by an order executed the same day by the Honorable Judge W. Terrence O'Brien. The Motion and Addendum filed by [Father] were struck, because they were not sworn or verified, and judgment was entered in favor of the [School District]. See Opinion of Judge O'Brien at [GD-05-018165] Document #28.Trial Court Opinion, 10/27/23, at 9-11.
Father appealed the judgment to Commonwealth Court and argued "that jurisdiction over the property and/or the property owner has not been established, because [Son] owns the property, and [Son was] never . . . served or named in the cause of action." Wilkinsburg School District v. Koger, 422 C.D. 2017, 2019 WL 2997462 *2 (Pa. Cmwlth. 2019) (non-precedential). According to Father, in 1999, the HUD Secretary conveyed the property to his four-year-old Son, rather than to Father, because the deed ambiguously identified the grantee as "Todd Elliott Koger." Thus, in Father's view, the School District's failure to join Son deprived the trial court of subject-matter jurisdiction over the tax-lien case and made the resulting judgment void.
The Commonwealth Court opined that "the original record supports the conclusion that [Father] is the property owner and nothing [in his appellate brief] counters that conclusion . . . this argument must fail." Id. at *2. The court affirmed the judgment in favor of the School District.
Next, the trial court issued Father a rule to show cause why the Sheriff of Allegheny County should not sell the property. Rather than file an answer to the rule, Father filed two interlocutory appeals to Commonwealth Court, which quashed them both.
See Wilkinsburg School District v. Koger, 149 CD 2022, (Pa. Cmwlth. 2022) (non-precedential) and Wilkinsburg School District v. Koger, 150 CD 2022 (Pa. Cmwlth. 2022) (non-precedential). The Commonwealth Court summarily quashed both appeals in judgment orders. We do not discuss the quashed appeals further. Below, "Wilkinsburg School District" refers to Father's first appeal, Wilkinsburg School District v. Koger, 422 C.D. 2017, 2019 WL 2997462 (Pa. Cmwlth. 2019) (non-precedential).
On August 25, 2022, the sheriff sold the property to Buyer and executed a deed naming Buyer as grantee. See Complaint Ex. C. Father refused to leave the home, and Buyer filed this action at GD-22-013385 to eject Father and Son from the property. The parties eventually filed cross-motions for summary judgment. The trial court granted summary judgment in favor of Buyer against Father and in favor of Son against Buyer.
Father timely appealed.
He raises two issues that seek to relitigate the tax-lien case, at GD-05-018165:
1. The GD-05-018165 ruling is "void ab initio," and it is imperative that this Court initially address the issue of lack of jurisdiction before examining any other concerns. See Cinats Corp. v. Lee's Cleaning Service, Inc., 700 A.2d 915, 919 (Pa. 1997). Documents 5 and 6 of the GD-05-018165 court record identifies on June 30, 2011, Judge Joseph James accepted the admission of Wilkinsburg [School District's] failure to properly name and timely serve [Son], an indispensable party and owner of the property, within the designated two year statute of limitations.
2. [Under] 72 P.S. §§ 1-1855, Wilkinsburg [School District] was required to renew its July 28, 2005 tax lien (GD-05-018165 Document 1) before the fifth year expiredin 2010, which they failed to do.
Father's Brief at 8.
1. Rule of Appellate Procedure 1925(b)
Before reaching the merits of either issue, we recognize that the trial believes Father waived all appellate issues by violating Pennsylvania Rule of Appellate Procedure 1925(b). Buyer agrees with the trial court. See Buyer's Brief at 2-8. Thus, we pause to consider the issue of waiver.
"The issue of waiver presents a question of law, and, as such, our standard of review is de novo, and our scope of review is plenary." Trigg v. Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
Rule 1925(a) requires trial courts to file an "opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found." Pa.R.A.P. 1925(a). If the trial judge "desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal ('Statement')." Pa.R.A.P. 1925(b). "Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa.R.A.P. 1925(b)(4)(vii).
Importantly, for the waiver provision to apply, the trial court must issue an order directing the appellant to file a 1925(b) Statement and specifically warning "that any issue not properly included in the Statement timely filed and served pursuant to subdivision (b) shall be deemed waived." Pa.R.A.P. 1925(b)(3)(iv).
Here, Father filed a 24-page-long notice of appeal in the form of an appellate brief. He also attached numerous documents to the notice/brief as appendices. The trial court viewed his notice/brief as his 1925(b) Statement and deemed the filing to be so excessive that the court could not discern what issues Father intended to raise on appeal. See Trial Court Opinion, 10/27/23, at 2-4. Thus, the trial court concluded that the notice/brief resulted in waiver of all of Father's issues.
However, because the trial court treated the notice/brief as Father's 1925(b) Statement, the court never ordered him to file a 1925(b) Statement. Thus, the trial court never warned Father that any violations of Rule 1925(b) would result in waiver of his appellate issues. As such, the waiver provision of Pa.R.A.P. 1925(b)(4)(vii) does not apply to this appeal. We reject the trial court's and Buyer's waiver contention as erroneous and address the issues that Father raises in his appellate brief.
2. Jurisdictional Challenge to GD-05-018165 Judgment
First, Father argues that the trial court lacked subject-matter jurisdiction to decide the tax-collection case that Wilkinsburg School District filed against him in 2005. As he claimed in his direct appeal to the Commonwealth Court in GD-05-018165, Father asserts that Son owned the property.
He contends that, in "Documents 5 and 6, on June 30, 2011, Judge Joseph James acknowledged the admission of Wilkinsburg [School District] to properly name and serve [Son], an indispensable party and owner of the property, within the mandatory, two year statute of limitations." Father's Brief at 10. Father therefore believes that the School District failed to join Son, an indispensable party in GD-05-018165, and thereby deprived the trial court of subject-matter jurisdiction. In short, he attempts a collateral attack against the sheriff's sale, upon which Buyer's title to the property rests.
The "question of subject-matter jurisdiction . . . is purely one of law; our standard of review is de novo, and our scope of review is plenary." B.J.D. v. D.L.C., 19 A.3d 1081, 1082 (Pa. Super. 2011) (some punctuation omitted).
As the Supreme Court of Pennsylvania has made clear, "a void judgment is one that the court does not have the power to enter. It cannot become valid through the lapse of time." M & P Management, L.P. v. Williams, 937 A.2d 398, 401 (Pa. 2007). See also Comm. ex rel. Penland v. Ashe, 19 A.2d 464, 466 (Pa. 1941) ("a void judgment may be regarded as no judgment at all; and every judgment is void, which clearly appears on its own face to have been pronounced by a court having no jurisdiction or authority in the subject matter.") As such, "a void judgment is a mere blur on the record . . . it is the duty of the court of its own motion to strike off, whenever its attention is called to it." M & P, 937 A.2d at 401. "Accordingly, where the court lacked jurisdiction . . . that court cannot enter a valid judgment, no matter how much time has passed." Id.
Additionally, "failure to join an indispensable party is a non-waivable defect that implicates the trial court's subject-matter jurisdiction." Strasburg Scooters, LLC v. Strasburg Rail Rd., Inc., 210 A.3d 1064, 1069 (Pa. Super. 2019). Thus, if Father is correct in his factual contention that Son owned the property and, thus, was an indispensable party to the tax-lien action at GD-05-018165, Son's absence from that case would have deprived the trial court of subject-matter jurisdiction. Further, that lack of subject-matter jurisdiction would have rendered the judgment in favor of the School District void. See M & G, supra.
However, Father's contention that Son owned the property is wrong. As the Commonwealth Court held when Father previously disavowed owning the property, the record in GD-05-018165 "supports the conclusion that [Father] is the property owner . . . ." Wilkinsburg School District, 2019 WL 2997462 at *2. Father cites to nothing in either record that undermines that conclusion.
It is absurd to think, as Father's theory necessarily insists, that the HUD Secretary deeded the property to a four-year-old boy. Any latent ambiguity in the deed, based on the drafter's failure to include the word "Sr." after "Todd Elliot Koger," is nothing more than an oversight in the drafting of the deed. Possibly, Father neglected to inform the drafter that his full name was "Todd Elliot Koger, Sr." Or, he did not make the drafter aware that he had a young son with the same name. In any event, the only logical conclusion is that the missing "Sr." on the grantee line of the HUD-to-Koger deed is a scrivener's error.
A scrivener's error is no impediment to effectuating the obvious intent of the parties at the time they drafted a legal document. Under Pennsylvania law, our courts have the power to reform a legal document to correct a scrivener's error. See, e.g., Zurich American Insurance Co. v. O'Hanlon, 968 A.2d 765, 773 (Pa. Super. 2009) (affirming trial court's grant of reformation of insurance policy to correct scrivener's error); DiMaio v. Musso, 762 A.2d 363, 366 (Pa. Super. 2000), appeal denied, 785 A.2d 89 (Pa. 2001) (vacating order where trial court erred in failing to reform deed to correct scrivener's error that depicted wrong parcel of land); Armstrong County Building & Loan Association of Ford City v. Guffey, 200 A. 160, 163 (Pa. Super. 1938) (granting reformation of deed to correct scrivener's error in lot numbers of certain lots intended to be conveyed).
While no party requested reformation of the HUD-to-Koger deed to add "Sr." to the grantee's name, such relief is surely appropriate to resolve any latent and illogical ambiguity in the deed upon which Father relies. We think it is beyond any reasonable contradiction that the parties to the HUD-to-Koger deed intended for the grantee to be the adult Father, rather than the then-four-year-old Son. There is no subsequent deed of record conveying the property from Father to Son.
Therefore, Father owned the property when the School District filed its lawsuit against him at GD-05-018165, and the trial court had before it the appropriate defendant - i.e., Father. Son was not an indispensable party to that action, as Father has speciously claimed for over a decade. Hence, we agree with the Commonwealth Court that the trial court had subject-matter jurisdiction in GD-05-018165. The judgment entered at GD-05-018165 is valid, binding, and final.
Father's collateral attack on that judgment and the sale of the property to Buyer fails. We dismiss Father's first issue as meritless.
3. Alleged Non-Renewal of Tax Lien
As his final issue, Father claims that the judgment at GD-05-018165 "is rendered 'void ab initio' in accordance with 72 P.S. §§ 1-1855." Father's Brief at 10. He believes the statute "required Wilkinsburg [School District] to renew its tax lien from July 28, 2005 . . . before the fifth year came to an end in 2010." Id. at 11. Even so, he does not explain how or why the alleged failure to renew the lien renders the final judgment void ab initio. Moreover, Father offers no authority for that proposition, nor does he quote any section of the statute. In short, Father's argument is insufficiently developed.
Before this Court will consider an appellate argument, an appellant must provide a through, meaningful, legal argument to support each issue raised on appeal. "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) (emphasis added). Although Father mentions 72 P.S. §§ 1-1855, he quotes no language from it, nor does he analyze how our courts have construed its provisions. In fact, this portion of Father's brief contains no case law, whatsoever. See Father's Brief at 12-13.
His argument is a rambling list of grievances from the tax-lien case and a separate, administrative hearing before the Pennsylvania Housing Finance Agency. See Koger v. Housing Finance Agency, 777 C.D. 2022, 2023 WL 4752197 (Pa. Cmwlth. 2023) (non-precedential). None of Father's complaints relate to the issue raised at the outset of his brief. We have made clear that this Court "will not act as counsel and will not develop arguments on behalf of an appellant." Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). "Appellate arguments which . . . are not appropriately developed are waived." Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).
Because Father has not developed a cogent, legal argument regarding 72 P.S. §§ 1-1855 and its relationship, if any, to the judgment at GD-05-018165, we dismiss his final issue as waived.
Order affirmed.
Judgment Entered.