Opinion
No. 819 C.D. 2012
03-27-2013
Borough of Walnutport v. Timothy Dennis, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Timothy Dennis (Dennis) appeals from the March 30, 2012 order of the Court of Common Pleas of Northampton County (trial court), amending its prior judgment in favor of the Borough of Walnutport (Borough) to conform to our decision and directive in Borough of Walnutport v. Dennis, 13 A.3d 541 (Pa. Cmwlth. 2010) ("Dennis I"), appeal denied ___ Pa. ___, 34 A.3d 84 (2012).
The underlying facts and circumstances of this case are detailed in Dennis I and are briefly summarized here. Dennis is the sole owner of property located at 645 Lehigh Gap Street, Walnutport, Northampton County (Property). On March 17, 1986, the Borough enacted an ordinance authorizing it to install curbing on properties abutting reconstructed streets if the owner failed to do so within 90 days of receiving written notice. In May 1994, the Borough provided Dennis with written notice that Lehigh Gap Street was scheduled for reconstruction and that curbing had to be installed. After Dennis failed to install curbing within 90 days, the Borough hired and paid a contractor to install curbing on the Property. Dennis did not reimburse the Borough for its expenditure.
On October 13, 1994, the Borough filed a municipal lien against the Property. On December 29, 2004, the Borough filed a writ of scire facias. In turn, Dennis filed an affidavit of defense and a counterclaim. Following a hearing, the trial court determined that the total amount Dennis owed the Borough was $9,074.47. Of this amount, the trial court awarded $3,222.25 for the cost to install the curbing, $4,668.60 in accumulated interest at 10% per annum, and $1,183.62 in attorney's fees.
On appeal to this Court in Dennis I, Dennis argued, among other things, that the trial court erred in awarding the Borough attorney's fees and including interest as part of the amount owed to the Borough.
With respect to the attorney's fees, Dennis argued that the Borough failed to prove that it had an ordinance in place to collect the fees as required by section 3(a) of the Municipal Claim and Tax Lien Act (the MCTLA); that the trial court's imposition of fees contravened Monroe Township v. Augsburger, 883 A.2d 718 (Pa. Cmwlth. 2005); and that the Borough failed to provide Dennis with proper notice that it was going to seek the fees.
Act of May 16, 1923, P.L. 207, No. 153, as amended, 53 P.S. §7106(a).
In Dennis I, this Court concluded that Dennis waived his arguments concerning the Borough's failure to pass an ordinance and to provide proper notice because he did not include these issues in his Pa. R.A.P. 1925(b) statement. We further concluded that Dennis waived any challenge to the reasonableness of the attorney's fees because he did not petition the trial court as mandated by section 3(a.1) of the MCTLA, added by the Act of February 7, 1997, P.L. 1, 53 P.S. §7106(a.1). Dennis I, 13 A.3d at 547-48. On the merits, we rejected Dennis' contention that Augsburger prohibited the trial court from awarding attorney's fees and that the Borough did not meet it burden of proof, reasoning as follows:
... [T]he Borough met its burden of proof that it is entitled to collect attorney fees from Dennis. Specifically, [section 20 of the MCTLA, 53 P.S. §7187,] provides that reasonable legal fees may be collected on a municipal lien after a verdict has been entered in favor of the municipality. In this case, a verdict was entered on June 5, 2009, in favor of the Borough and, as such, the Borough is entitled to reasonable attorney fees for collection on the debt.Id. at 547. Accordingly, we upheld the trial court's imposition of attorney's fees in the amount of $1,183.62.
Pursuant to [section 20 of the MCTLA], once the trial court rules on a municipal lien and a verdict is entered by the court, the municipality shall be entitled to reasonable attorney fees pursuant to [section 3 of the MCTLA]. Reading both statutes in conjunction with one another, as required under the rules, once the trial court rules in favor of the municipality on its municipal lien, the challenge by the property owner is deemed to be meritless, therefore entitling a municipality to an award of reasonable legal fees. As Dennis lost his challenge, [section 20 of the MCTLA] mandates an award of reasonable attorney fees. The attorney fees of $1,183.62 as found by the trial court are reasonable and therefore, the Borough is entitled to such fees.
However, this Court agreed with Dennis that the Borough was not entitled to collect any amount of interest because it did not adopt an ordinance establishing a specific rate of interest. Consequently, we reversed the trial court's judgment to the limited extent that it awarded the Borough interest. In all other respects, we affirmed the judgment in favor of the Borough. Id. at 552-53. Thereafter, Dennis filed a petition for allowance of appeal to our Supreme Court, which was denied by per curiam order dated January 3, 2012.
On March 23, 2012, the Borough filed a petition in the trial court, requesting that the trial court modify the judgment to comply with Dennis I. By order dated March 30, 2012, the trial court amended the judgment consistent with Dennis I and excluded the $4,668.60 previously awarded in interest. The trial court did not take any further action in the case and entered a new judgment against Dennis in the amount of $4,405.87. Dennis filed a notice of appeal, and the trial court ordered him to file a Pa. R.A.P. 1925(b) statement.
In his Pa. R.A.P. 1925(b) statement, Dennis raised six issues. In issues one through five, Dennis claimed that the trial court erred in granting the Borough attorney's fees because: the fees were awarded at the trial phase rather than the execution phase; the Borough failed to pass an ordinance to collect the fees; the fees violated Augsburger; the fees should have been adjusted downward following Dennis I and the trial court's reduction in damages; and the Borough failed to provide notice that it was going to seek the fees. In his sixth issue, Dennis asked the trial court whether he would have an opportunity to challenge the imposition of attorney's fees if or when the Borough commenced execution on the judgment.
In its Pa. R.A.P. 1925(a) opinion, the trial court correctly stated that this Court in Dennis I explicitly affirmed the trial court's award of attorney's fees to the Borough in the amount of $1,183.62 and concluded that the fees were reasonable. Quoting Penden v. Gambone Brothers Development Company, 798 A.2d 305, 310 (Pa. Cmwlth. 2002), the trial court noted that the "law of the case" doctrine provides that "upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court." Therefore, the trial court concluded that the law of the case doctrine bars Dennis from again challenging the award of attorney's fees.
Moreover, the trial court correctly noted that in Dennis I this Court found that Dennis' arguments concerning the Borough's failure to pass an ordinance and to provide proper notice were deemed to have been waived. Quoting Hawk v. Eldred Township Board of Supervisors, 983 A.2d 216, 223 (Pa. Cmwlth. 2009), the trial court reiterated that "[a]n appellant cannot pursue in a subsequent appeal matters in which he or she could have pursued in a prior appeal," and concluded that these issues were waived and/or barred by the law of the case doctrine as well. Finally, the trial court determined that Dennis' sixth allegation of error, inquiring as to whether he can challenge the attorney's fees if and when the Borough executes the judgment, was a request for an advisory opinion. Quoting Harris v. Rendell, 982 A.2d 1030, 1035 (Pa. Cmwlth. 2009), the trial court correctly observed "that courts do not render decisions in the abstract or offer purely advisory opinions." For these reasons, the trial court ultimately concluded that Dennis' appeal is without merit. (Trial court op. at 3-5.)
On appeal to this Court, Dennis restates the six issues listed in his Pa. R.A.P. 1925(b) statement. However, in his brief Dennis does not mention, let alone contest, the trial court's legal conclusions that the issues he raises are not cognizable pursuant to the law of the case and waiver doctrines as enunciated in Penden and Hawk and the prohibition against the issuance of an advisory opinion as stated in Harris. We reiterate that it is Dennis' burden to prove to this Court that the trial court misapplied the law, which places an obligation on Dennis to establish that the rules of law enunciated in Penden, Hawk, and Harris are inapplicable. See Commonwealth v. Brewer, 876 A.2d 1029, 1035 (Pa. Super. 2005). Dennis has not carried this burden.
Moreover, upon our review of the facts and procedural posture of this case along with applicable case law, we are in complete agreement with the trial court's rationale and legal conclusions. In Dennis I, this Court affirmed the trial court's award of attorney's fees to the Borough, concluding that they were both warranted under the law and reasonable. Any attempt by Dennis to re-litigate the attorney's fees issue, whether by advancing new arguments that could have been raised in the first appeal or arguments that were previously rejected and/or waived in Dennis I, is prohibited by the law of the case and waiver doctrines. Penden; Hawk. See also In re De Facto Condemnation & Taking of Lands of WFB Assocs., L.P., 588 Pa. 242, 272 n.14, 903 A.2d 1192, 1210 n.14 (2006) (stating that the law of the case doctrine precludes parties from re-litigating conclusions of law). Otherwise, Dennis' argument concerning a potential future challenge to the imposition of attorney's fees requests this Court to issue an advisory opinion based upon a set of circumstances that do not yet exist and may never exist. This particular issue is not ripe for review, and this Court lacks the authority to issue an advisory opinion. Harris. See also Crystal Lakes Camp v. Alford, 923 A.2d 482, 489 (Pa. Super. 2007) (declining to address an issue that was posed as a hypothetical question dependent on a non-existent set of future circumstances because "this Court cannot and will not issue an advisory opinion.").
The only issue that Dennis advances that could arguably not be barred by these doctrines is his assertion that the attorney's fees should have been adjusted downward following Dennis I. However, as mentioned above, this Court in Dennis I concluded that the attorney's fees met the standard of reasonableness, notwithstanding the fact that we reversed a substantial portion of the judgment award by concluding that interest could not be included in the award. --------
We recognize that departure from the law of the case doctrine "is allowed only in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed." Commonwealth v. Starr, 541 Pa. 564, 575-76, 664 A.2d 1326, 1332 (1995).
Here, Dennis has not articulated any exceptional circumstances that would justify disregarding the law of the case doctrine. Dennis I is a published decision from this Court, and we are unaware of any change in the law that would undermine its validity as binding precedent. Nor has additional evidence been received after Dennis I was decided. Assuming, arguendo, that Dennis' arguments concerning the attorney's fees contain merit and the holding in Dennis I is questionable, we do not believe that Dennis' arguments prove that Dennis I is clearly erroneous or that a manifest injustice would result if this Court followed Dennis I. Therefore, we afford Dennis I its proper deference as the law of the case and decline Dennis' invitation to effectively revisit that case.
For all of these reasons, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 27th day of March, 2013, the March 30, 2012 order of the Court of Common Pleas of Northampton County is hereby affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge