Opinion
No. 428 C.D. 2012
11-08-2012
City of Reading v. Ronald L. Heckman, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is an appeal from a judgment of the Court of Common Pleas of Berks County (the trial court) in favor of plaintiff City of Reading (City) and against defendant Ronald L. Heckman (Heckman) for delinquent trash collection and recycling fees under what is commonly known as the Municipal Claims and Tax Liens Act. We affirm.
Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
Section 2403(6) of The Third Class City Code permits the City to, "by ordinance ... provide for and regulate the collection, removal and disposal of garbage, ashes and other waste or refuse material, ... and to impose and collect, by lien or otherwise, reasonable fees and charges therefor." 53 P.S. § 37403(6). The City's Solid Waste Ordinances provide for City trash and recycling collection for all residential properties with four or fewer residential units and impose on the owners of all such properties an annual trash collection and disposal fee and an annual recycling fee. City of Reading Codified Ordinances, §§ 20-102(1), 20-103, 20-104(1). The recycling fee is imposed on all owners of residential properties with four or fewer residential units without any exceptions. City of Reading Codified Ordinances, § 20-103. Owners of residential properties with four or fewer residential units may opt out of City trash collection and the annual trash fee, but to do so, the owner must submit proof to the City twice a year for each such year that he has a valid and current written contract for trash collection with a person licensed by the Commonwealth to collect, transport and dispose of municipal waste. City of Reading Codified Ordinances, §§ 20-101, 20-104(3)(G), (8)(A)(1).
Act of June 23, 1931, P.L. 932, § 2403(6), as amended, 53 P.S. § 37403(6).
Heckman is the owner of 153 Walnut Street, Reading, Pennsylvania (the Property), a residential property in the City that consists of two dwelling units. (Transcript of November 10, 2011 Hearing (H.T.) at 14; Plaintiff's Ex. 1 at 96, Reproduced Record (R.R.) at 138; Appellant's Br. at 11-12.) In May 2010, the City sent Heckman a notice requesting payment for unpaid trash and recycling fees for the Property for the years 2002, 2004 and 2007-2008. (H.T. at 13; Plaintiff's Ex. 1 at 56-59, R.R. at 98-101.) On August 12, 2010, the City sent Heckman a second notice, requesting payment for unpaid trash and recycling fees for the Property for the years 1995-2004 and 2007-2008. (H.T. at 20-21; Plaintiff's Ex. 1 at 64-67, R.R. at 106-109.)
When no payment was received, on December 30, 2010, the City filed a lien against the Property in the amount of $1,898.70 for unpaid trash and recycling fees for the years 1995-2004 and 2007-2008. (Trial Court Docket at 1; Municipal Claim Lien.) On January 31, 2011, the City filed for issuance of a writ of scire facias seeking judgment on the claim that it asserted in that lien. (Trial Court Docket at 1; Writ of Scire Facias, R.R. at 120-122.) On March 10, 2011, Heckman responded to the writ of scire facias, contending that he does not owe trash or recycling fees for the property because he used a private collector and did not use the City's collection services, and because the Property is a multi-unit property. (Trial Court Docket at 1; Affidavit of Defense, R.R. at 124-125.)
The trial court held a nonjury trial on November 10, 2011 on the City's claim for unpaid 1995-2004 and 2007-2008 trash and recycling fees. At the trial, the City introduced evidence that these trash and recycling fees were due and owing and evidence of the amounts and years of the unpaid fees, interest and costs of collection. (H.T. at 15, 23; Plaintiff's Ex. 1 at 98, R.R. at 140.) The interest and costs of collection added $447.47 to the City's claim, bringing the total amount of the claim to $2,346.17. (H.T. at 15, 23-24; Plaintiff's Ex. 1 at 98, R.R. at 140.) Heckman testified and did not dispute that he did not pay any trash and recycling fees for the Property. (H.T. at 33-39.) Heckman also did not dispute the amount of the City's claim. Instead, he testified that he used private haulers for trash and recycling except for years when the Property was vacant, and that the City did not collect trash or recyclables from the Property. (H.T. at 34, 38-39.) Heckman admitted that he did not apply or submit anything to the City for exemption from trash or recycling fees and did not produce copies of any contracts with any private hauler for any of the years. (H.T. at 38-39.) Rather, Heckman contended that he was exempt from the trash and recycling fees by virtue of a 1994 proceeding for violation of another City ordinance, which he claimed had ruled that the Property was a multi-unit commercial property. (H.T. at 29-39.) In addition, Heckman argued that the City's claim was barred by the statute of limitations. (H.T. at 3-9.)
Following the conclusion of the trial and arguments of the parties, the trial court on November 10, 2011 rendered a verdict in favor of the City and against Heckman in the amount of $2,346.17, and this verdict was entered on the docket on November 16, 2011. (Trial Court Docket at 1-2; H.T. at 40; Trial Court Findings and Verdict.) On November 21, 2011, Heckman filed a motion for reconsideration, which was denied by the trial court on November 28, 2011. (Trial Court Docket at 2.) On December 6, 2011, Heckman timely appealed the trial court's judgment. (Trial Court Docket at 2; Notice of Appeal.)
Heckman did not file any motion for post-trial relief in the trial court and was not required to do so. Dreibelbis v. State College Borough Water Authority, 654 A.2d 52, 56 (Pa. Cmwlth. 1994); Shapiro v. Center Township, 632 A.2d 994, 999 (Pa. Cmwlth. 1993).
Heckman appealed to the Superior Court, which transferred the appeal to this Court pursuant to Pa. R.A.P. 751.
Our review on this appeal is limited to examining whether the trial court's factual determinations are supported by competent evidence, whether the trial court abused its discretion or committed an error of law, and whether constitutional rights were violated. Allegheny County v. Monzo, 509 Pa. 26, 35, 500 A.2d 1096, 1101 (1985); Dreibelbis v. State College Borough Water Authority, 654 A.2d 52, 54 n.1 (Pa. Cmwlth. 1994); Shapiro v. Center Township, 632 A.2d 994, 1000 (Pa. Cmwlth. 1993). Heckman argues 1) that the City's claim is barred by the statute of limitations, 2) that he is not liable for trash and recycling fees because he did not use the City's trash and recycling services, 3) that the applicable ordinances do not impose mandatory fees and do not apply because the Property had been held to be a commercial multiple dwelling unit property, and 4) that the trial court erred in its evidentiary rulings and conduct of the trial. We conclude that none of these arguments is valid.
The time limitation statutes applicable to this municipal lien claim are Section 9 of the Act of May 16, 1923 (the 1923 Act), P.L. 207, as amended, 53 P.S. § 7143, and Section 1 of the Act of September 23, 1959 (the 1959 Act), P.L. 955, as amended, 53 P.S. § 7432. Keller v. Scranton City Treasurer, 29 A.3d 436, 438-39 (Pa. Cmwlth. 2011); Sanft v. Borough of West Grove, 437 A.2d 1332, 1333-34 (Pa. Cmwlth. 1981). Section 9 of the 1923 Act provides that municipal claims "shall be filed on or before the last day of the third calendar year after that in which the taxes or rates are first payable." 53 P.S. § 7143. However, under Section 1 of the 1959 Act, even after this three-year time period has expired, a municipal claim may be filed at any time and is valid, except as to intervening rights and interests. 53 P.S. § 7432; Keller, 29 A.3d at 438-39; Sanft, 437 A.2d at 1333-34. Section 1 of the 1959 Act provides:
Whenever, heretofore or hereafter, any ... city ... has failed to file in the office of the prothonotary of the county, any tax claim or municipal claim assessed against any property within the time limit required by law for such filing, whereby the lien of such tax or municipal claim is lost; ... then, in any such case heretofore or hereafter occurring, any such ... city ... may, at any time after the effective date of this act, file such tax or municipal claim, ... and such claim or judgment so entered or revived shall be a valid claim or judgment and be a lien upon the real estate upon which it was a lien at the time the claim was filed or the judgment was entered .... Provided, That the lien of any such claim or judgment shall not reattach against any real estate transferred to any purchaser before such claim is filed or during the time when the lien of any
such tax or municipal claim or judgment was lost, nor shall the lien of any such claim or judgment impair or affect the priority of the lien of any mortgage or other lien which gained priority because of the failure of the ... city ... to file such claim ....53 P.S. § 7432 (emphasis added).
Here, there has been no change in ownership of the Property and there is no claim that any third party acquired any lien on or other interest in the Property during the intervening years. Heckman has been the owner of the Property since at least 1994, before the first year of any of these claims, and was still the owner of the Property when the City filed its municipal claim lien. (H.T. at 29, 34-36; Plaintiff's Ex. 1 at 96, R.R. at 138.) Accordingly, the City's claim for unpaid trash and recycling fees against Heckman is not time-barred. Keller, 29 A.3d at 438-39; Sanft, 437 A.2d at 1333-34.
Heckman's argument that he did not use City trash and recycling services is likewise not a defense to this claim. Where a municipality lawfully provides for trash disposal or recycling and imposes a fee on residents to pay for that collection and disposal, all residents to whom the fee applies are obligated to pay the fee, regardless of whether they actually need or use the municipality's collection and disposal services and even if they dispose of their waste and recyclables through other means. Newberry Township v. Stambaugh, 848 A.2d 173, 176, 177 (Pa. Cmwlth. 2004); Township of West Manchester v. Mayo, 746 A.2d 666, 669-71 (Pa. Cmwlth. 2000).
[E]ven if a resident does not generate any refuse or waste, the resident is still responsible for any service fee or charge lawfully imposed by a municipality for the collection and disposal of refuse. The fact that the resident may not generate any refuse as that term is defined by ordinance does not excuse the non-payment of a refuse service fee or charge. This
applies equally to the situation where the resident chooses to dispose of his or her refuse through other means other than those provided for by ordinance. ... [R]esidents of a municipality are users of the municipality's collection and disposal service regardless of how they choose to dispose of refuse because they receive the benefit from the general disposal system by the collection of refuse from other premises in the community.Mayo, 746 A.2d at 671 (emphasis added).
Contrary to Heckman's arguments, the language of the City's ordinances does impose mandatory trash and recycling fees and those fees apply to the Property. The Property is a residential dwelling. (Plaintiff's Ex. 1 at 96, R.R. at 138; Appellant's Br. at 11-12.) The current City Solid Waste Ordinances provide for the City to contract for trash collection from all "single-family residential dwellings and multi-family residential dwellings with four or fewer residential units" and provide that "[t]here is hereby imposed upon the owner of each dwelling unit mandated to participate in the City contracted program an annual municipal waste collection and disposal service fee." City of Reading Codified Ordinances, § 20-104(1). The "[o]wners of owner occupied single family or multi-family dwellings up to and including four units" are required to participate in the City trash program and pay the fee unless they "elect not to participate" and "provide ... a copy of a valid written contract, to the City, for ... trash collection serviced, with a licensed hauler." City of Reading Codified Ordinances, § 20-104(3)(G). These current City Solid Waste Ordinances also provide for City recycling collection from all "single-family dwellings and multi-family dwellings with four or fewer residential units" and provide that "[t]here is hereby imposed upon the owners of all residential properties of four or fewer units an annual recycling fee." City of Reading Codified Ordinances, §§ 20-102(1), 20-103.
The fact that some of the fees are from years that pre-date these provisions does not change the result. The City's ordinances from 1991 on have imposed a mandatory recycling fee on all residential properties having four or fewer dwelling units. See Bill No. 83-91(1991 Ordinance) Part 1 at 5, Part II(C)(1) at 23 (R.R. at 60, 78); Bill No. 23-98 (1998 Ordinance) Sections 1115.2(A), 1115.3(A)(1) at 4, 6; Bill No. 23-2000 (2000 Ordinance) Sections 1115.2(A), 1115.3(A)(1) at 5-6. The City's prior ordinances from 2000 on, the period for which the City claimed trash fees (see Plaintiff's Ex. 1 at 98, R.R. at 140), imposed trash fees on all "[n]on-owner occupied single family dwellings and multi-family Dwellings up to and including four (4) units." Bill No. 23-2000 (2000 Ordinance) Sections 1115.4(A)(1), (5) at 7-8, 10. The Property was not occupied by Heckman (Plaintiff's Ex. 1 at 96, R.R. at 138; Appellant's Br. at 11) and was therefore subject to the trash fee.
The 1994 violation finding against Heckman does not exempt the Property from these trash and recycling fees. The 1994 finding was that Heckman violated a requirement that "the owner or operator of [a] multiple-unit dwelling shall furnish common storage o[r] disposal facilities and maintain them." (H.T. at 36) (emphasis added). Thus, the finding was the Property was a multi-unit residential property, not that it was a commercial property. Multi-unit residential properties are not automatically exempt from the trash and recycling fees. Only multi-unit residential properties with five or more units are exempt from the fees; as is explained above, multi-unit properties with four or fewer dwelling units are fully subject to both the trash and recycling fees. City of Reading Codified Ordinances, §§ 20-102(1), 20-103, 20-104; Bill No. 23-2000 (2000 Ordinance) Sections 1115.2(A), 1115.3(A)(1), 1115.4(A)(1), (5) at 5-6, 7-8, 10; Bill No. 23-98 (1998 Ordinance) Sections 1115.2(A), 1115.3(A)(1) at 4, 6; Bill No. 83-91(1991 Ordinance) Part 1 at 5, Part II(C)(1) at 23 (R.R. at 60, 78).
Not only did this 1994 ruling not find that the Property had five or more units, but Heckman admits that the Property has four or fewer dwelling units. Heckman specifically represents in his brief that the Property consists of two residential dwelling units that he rents to tenants. (Appellant's Br. at 11-12.) Therefore, nothing in the 1994 violation finding excused Heckman from his obligation to pay recycling fees for the Property or excused him from the obligation to pay trash fees, unless he sought an exemption and submitted the required documentation that he had a valid contract with a licensed trash hauler.
Heckman also asserts that the City did not show that it sent him bills for trash or recycling services. The contention that he makes in that regard, however, is that the absence of bills establishes the other points that he argues, that the City did not collect trash and recyclables from the Property or that the City ordinances did not require him to pay those fees. (See Appellant's Br. at 7-8; H.T. at 34.) As is demonstrated above, the first of these propositions is not a defense to his obligation to pay the fees and the latter contention is legally inaccurate. Moreover, any absence of bills did not prejudice Heckman; he received repeated requests for payment from the City's collection agent before the lien was filed (H.T. 13, 20-21; Plaintiff's Ex. 1 at 56-59, 64-67, 69-70, R.R. at 98-101,106-09, 111-12) and did not pay on the grounds that he contended that he had no obligation to pay trash and recycling fees for the Property, not because he disputed or did not know the amount claimed.
Finally, we find Heckman's complaints about the trial court's evidentiary rulings and its conduct of the trial without merit. The only evidence that the trial court did not allow Heckman to present consisted of the proffered testimony of one witness, Mr. Harry Stauffer. (H.T. at 29-33.) This evidence was properly excluded. The subjects as to which Heckman contended that Mr. Stauffer would testify were the 1994 violation proceeding and his opinions on the legal effect of the City's ordinances. With respect to the 1994 proceeding, only the court's order or judgment in that proceeding showing its rulings and findings would be relevant, not testimony concerning the proceeding. The trial court fully permitted Heckman to introduce the order in the 1994 violation proceeding and argue its legal effect. (H.T. at 34-37.) Moreover, given that the Property is a two-unit dwelling (Appellant's Br. at 11-12) and that the 1994 order showed that the issue was whether the Property was a "multiple-unit dwelling" (H.T. at 36), the 1994 proceeding is in fact irrelevant to Heckman's liability for trash and recycling fees. With respect to the other subject of Mr. Stauffer's proffered testimony, the interpretation of the City ordinances was an issue of law for the trial court on which expert opinion testimony is not admissible. See Bank of America National Trust & Savings Association v. Sunseri, 311 Pa. 114, 119, 166 A. 573, 575 (1933).
Contrary to Heckman's claims, the trial court did not prevent him from introducing into evidence a letter he sent to the City's collection agent stating the same defenses he asserted at trial and other communications with collection agents for the City. To the contrary, the trial court permitted Heckman to introduce and testify concerning this evidence but concluded that whether Heckman had asserted his legal position to the City's current and past collection agents or the City had not pursued collection efforts earlier was not probative on the factual issues in the case. (H.T. at 25-27, 37-38.) --------
Heckman's contentions that the trial court heard evidence off the record and allegedly permitted the City to introduce additional evidence after it had rested are without foundation. The transcript shows that the trial court did not go off the record until after Heckman had finished testifying and presenting his evidence. (H.T. at 39-40.) The additional material that Heckman contends was submitted after the parties had rested and in the off-the-record argument consisted solely of copies of some of the City's past solid waste ordinances and its present ordinance. (Appellant's Br. at 6, 14.) This material was law, properly raised and submitted at argument, not factual evidence. Indeed, the trial court consistently and evenhandedly treated the ordinances as an issue of law for argument, and not as an evidentiary issue. The trial court made clear on the record, near the beginning of the trial, that it regarded the content of the City ordinances as a legal issue to be addressed in argument and did not permit the City to introduce testimony concerning the ordinances. (H.T. at 11-12.) Moreover, the additional ordinances did not change the factual issues in the case. Under both the ordinances submitted at argument and the ordinance submitted at the outset of the trial, the issue was the same, whether the Property was a residential property with four or fewer dwelling units.
For all of the foregoing reasons, we affirm the trial court's judgment in favor of the City and against Heckman.
/s/_________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of November, 2012, the verdict of November 10, 2011 of the Court of Common Pleas of Berks County, entered on the docket November 16, 2011, in the above captioned matter is AFFIRMED.
/s/_________
JAMES GARDNER COLINS, Senior Judge