Opinion
No. 2323 C.D. 2011
10-16-2012
Carolyn J. Florimonte, Appellant v. Borough of Dalton
OPINION NOT REPORTED
MEMORANDUM OPINION
Carolyn J. Florimonte (Florimonte), pro se, appeals from the Order of the Court of Common Pleas of Lackawanna County (trial court), dated November 9, 2011, that granted the Preliminary Objections (POs) of the Borough of Dalton (Borough) to Florimonte's Complaint (Complaint), filed on November 5, 2010, docketed in the trial court at number 2010 CIV 8001, and dismissed the Complaint. The trial court granted the POs on the basis that the Complaint was barred by the doctrine of lis pendens due to complaints Florimonte filed in 2003 (2003 Complaint), August 2010 (August 2010 Complaint), and on November 1, 2010 (November 2010 Complaint). Florimonte argues that the trial court judge abused his discretion by failing to recuse himself, displayed bias against her, and erred in holding that lis pendens barred the current Complaint.
Generally, the doctrine of lis pendens is intended to protect "defendants from the harassment of having to defend several suits on the same cause of action at the same time." Swift v. Radnor Township, 983 A.2d 227, 234 (Pa. Cmwlth. 2009).
Florimonte also makes a number of arguments regarding the POs of the Borough on the basis of the statute of limitations, which she argues the Borough should have included as new matter in its answer, rather than as preliminary objections. Florimonte also argues that the trial court erred by failing to address the Borough's error in this regard. However, because neither the trial court's opinion nor our opinion relies in any way upon the statute of limitations, these arguments are not relevant to the disposition of this matter and any error is, therefore, harmless.
Florimonte filed this Complaint with the trial court on November 5, 2010, four days after she filed the November 2010 Complaint. In the Complaint, Florimonte makes the following allegations. Florimonte purchased her property (the Property) on May 5, 2000. (Complaint ¶ 3, R.R. at 6a.) The Borough owns a water drainage system, part of which lies on and discharges an excessive amount of water onto the Property. (Complaint ¶¶ 4, 7, R.R. at 6a-7a.) Florimonte and her predecessors in title to the Property "protested the placement of the drainage system on the [P]roperty." (Complaint ¶ 5, R.R. at 6a.) The water discharged by the drainage system onto the Property has destroyed many trees on the Property. (Complaint ¶ 8, R.R. at 7a.) On May 28, 2005, while Florimonte was mowing, a limb from a dying tree fell and struck her, causing two compression fractures to Florimonte's spine. (Complaint ¶¶ 14-15, R.R. at 8a.) This injury reduced Florimonte's height, deformed her spinal column and neck, and has resulted in neck stiffness and headaches. (Complaint ¶¶ 15-16, 18, R.R. at 8a.) In December, 2008, while clearing debris from fallen trees, Florimonte suffered "a prolapse" that "required extensive internal surgery to correct." (Complaint ¶ 24, R.R. at 9a-10a.) In addition, while clearing debris from the dying trees, Florimonte frequently suffers injuries from the debris, including splinters, which are often accompanied by life-threatening infections. (Complaint ¶¶ 26-27, R.R. at 10a.) On the basis of these alleged facts, the Complaint asserts three claims, one for the spinal injury, one for the internal injury, and one for bodily injury from the splinters and infections. As relief for the spinal injury claim, the Complaint seeks at least $750,000.00 and an order directing the Borough to remove the drainage system from the Property. (Complaint at 6, R.R. at 9a.) As relief for the internal injury, the Complaint seeks at least $100,000.00 and removal of the drainage system from the Property. (Complaint at 7, R.R. at 10a.) As relief for the bodily injury claim, the Complaint seeks at least $250,000.00 and removal of the drainage system from the Property. (Complaint at 8, R.R. at 11a.) All monetary damages sought are both punitive and compensatory in nature.
Dorland's Medical Dictionary defines a prolapse as "the falling down, or sinking, of a part or viscus." Dorland's Medical Dictionary at 1466 (29th Ed.)
The Borough filed POs to the Complaint on November 29, 2010. In its POs, the Borough described the 2003 Complaint, the August 2010 Complaint, and the November 2010 Complaint. On the basis of these prior complaints, the Borough argued that the claims raised in the Complaint are barred by the doctrine of lis pendens and Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure, or by waiver, pursuant to Rule 1020(d) of the Pennsylvania Rules of Civil Procedure, because the claims raised in the current Complaint could have been raised in the prior complaints. (POs ¶¶ 6-8, R.R. at 18a.) The Borough also objected and stated that the Complaint failed to give the date of the prolapse injury that necessitated surgery as required by Rule 1019(f) of the Pennsylvania Rules of Civil Procedure. (POs ¶ 12, R.R. at 19a.) Florimonte filed a Response to the POs and the parties filed briefs with the trial court in support of their positions. Florimonte requested oral argument on the POs, which the trial court held on August 30, 2011. That argument was combined with argument on the Borough's preliminary objections to the November 2010 Complaint.
Rule 1028(a)(6) states that a party may file a preliminary objection to a pleading on the ground of "pendency of a prior action or agreement for alternative dispute resolution." Pa. R.C.P. No. 1028(a)(6).
Rule 1020(d) states
[i]f a transaction or occurrence gives rise to more than one cause of action heretofore asserted in assumpsit and trespass, against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Failure to join a cause of action as required by this subdivision shall be deemed a waiver of that cause of action as against all parties to the action.Pa. R.C.P. No. 1020(d).
The Borough also objected that punitive damages may not be leveled against a municipality and that, pursuant to Section 8553 of the Judicial Code, 42 Pa. C.S. § 8553, no more than $500,000.00 may be awarded for damages resulting from any action, occurrence or series of actions or occurrences. (POs ¶¶ 13-14, R.R. at 19a.)
Rule 1019(f) states that "[a]verments of time, place and items of special damage shall be specifically stated." Pa. R.C.P. No. 1019(f).
On November 9, 2011, the trial court issued its Memorandum and Order granting the POs and dismissing the Complaint. The trial court held that the August 2010 Complaint included the same or similar allegations of physical injury as the current Complaint and that the Complaint was, therefore, barred by the doctrine of lis pendens because the claims raised in the Complaint were raised in the August 2010 Complaint. (Trial Ct. Op. at 7.) In reaching this decision, the trial court relied upon the disposal of the August 2010 Complaint and the November 2010 Complaint on the same basis of the doctrine of lis pendens and noted that, as in those cases, Florimonte sought the removal of the drainage system and monetary damages. (Trial Ct. Op. at 7.) The trial court also relied upon this Court's decision in Swift v. Radnor Township, 983 A.2d 227 (Pa. Cmwlth. 2009). (Trial Ct. Op. at 6-7.) Florimonte now appeals to this Court.
Although the Borough's POs to the current Complaint and the preliminary objections to the November 2010 Complaint were heard by the trial court in one proceeding, the trial court issued two opinions disposing of each set of preliminary objections separately.
"Our scope of review of a trial court order granting preliminary objections is limited to determining whether the trial court committed legal error or abused its discretion." Bell v. Township of Spring Brook, 30 A.3d 554, 557 n.7 (Pa. Cmwlth. 2011).
Before this Court, Florimonte argues that: (1) the trial court judge abused his discretion by failing to recuse himself and displayed bias against her; and (2) because the 2003 Complaint sounded in equity, Rule 1020(d)(1) provides that she could bring additional claims in a later proceeding and the injuries relevant to the current Complaint had not yet occurred in 2003.
Florimonte also argues that the dismissal of her Complaint violates her rights under the Fifth and Fourteenth Amendments of the United States Constitution; however, this argument relates to the merits of the Complaint and does not address the procedural bases upon which the trial court granted the POs.
We first address Florimonte's argument that the trial court judge abused his discretion by failing to recuse himself from her case. Florimonte argues that the trial court judge was unable to impartially hear the Borough's POs because he knew that Florimonte believed he was biased against her. Florimonte argues that she filed a request in mandamus to the trial court requesting that the trial court judge recuse himself. In addition, Florimonte argues that the trial court judge showed bias against her at the oral argument on the POs when he interrupted her and asked questions making it clear that he had not read the pleadings.
As noted above, the argument on the POs in this case was combined with the argument on the Borough's preliminary objections to the November 2010 Complaint. This Court recently disposed of Florimonte's appeal from the trial court's grant of the Borough's POs to the November 2010 Complaint and the dismissal of that complaint in Florimonte v. Borough of Dalton (Florimonte II) (Pa. Cmwlth., No. 2273 C.D. 2011, filed September 18, 2012). In disposing of that appeal, we dealt with nearly identical allegations of bias and denied relief on the basis that there was no request in the record that the trial court judge recuse himself, and that a review of the transcript of the August 30, 2011 argument revealed no bias on the part of the trial court. Florimonte II, slip op. at 9-10 (citing Dennis v. Southeastern Pennsylvania Transportation Authority, 833 A.2d 348, 352 & n.2 (Pa. Cmwlth. 2003) (stating that the issue of bias must be raised before the trial court to be preserved unless the bias is so egregious that to raise it would be pointless) (Trial Ct. Hr'g Tr. at 27-28, R.R. at 91a-92a)). As in Florimonte II, a request that the trial court judge recuse himself does not appear in the certified record. Per the trial court's opinion, it appears that the Petition for Writ of Mandamus was docketed in the proceedings on the 2003 Complaint. (Trial Ct. Op. at 5 n.2.) And, as in Florimonte II, our review of the transcript reveals no bias on the part of the trial judge.
We hereby incorporate by reference our analysis and discussion of the trial court's conduct during the argument on August 30, 2011 set forth in Florimonte II, slip op. at 9-10. The transcript of the hearing before the trial court may be found beginning at page 65a of the Reproduced Record in the current matter. --------
We next address Florimonte's argument that because the 2003 Complaint sounded in equity, Rule 1020(d), as it existed when she filed the 2003 Complaint, provided that related causes of action in equity were not required to be joined in a single action. (Florimonte Br. at 20.) Florimonte also argues that because her injuries were unforeseeable in 2003 and had not yet occurred, she was not required to plead them in her 2003 Complaint. Id. (citing Swift, 983 A.2d at 235 (stating "there is no new or unforeseeable damage which would create a new cause of action . . . . There is nothing in the present complaint that was not raised, or could not have been raised in one of the prior two Actions.")). As in Florimonte II, however, Florimonte's argument largely ignores the doctrine of lis pendens. In Florimonte II we described the doctrine of lis pendens as follows:
Courts apply the doctrine of lis pendens "when, in the previously filed case, the parties are the same, the rights are the same and the requested relief is the same." Swift, 983 A.2d at 234 (citing Feldman v. Lafayette Green Condominium Assoc., 806 A.2d 497, 502 (Pa. Cmwlth. 2002)). "The doctrine of lis pendens protects defendants from the harassment of having to defend several suits on the same cause of action at the same time." Id. Lis pendens also avoids "the duplication of effort and waste of judicial resources that would result from allowing both cases to proceed simultaneously, in a race to judgment." Feldman, 806 A.2d at 502. "The application of lis pendens is purely a question of law. The court must determine whether the causes of action arose from the same transaction or occurrence, that is, whether the claims involve a common factual background or common legal question." Swift, 938 A.2d at 234.Florimonte II, slip op. at 5-6. In this case, the trial court held that, in the proceedings on the 2003 Complaint, Florimonte raised and addressed the injuries she sustained in 2005 that form the gravamen of the claims in her current Complaint. (Trial Ct. Op. at 7.) As the trial court points out, the other elements of lis pendens are met: the parties are the same, the Borough and Florimonte; the relief requested is the same, the removal of the drainage system and monetary compensation; and the rights asserted are the same. With regard to this last point, the rights asserted, we note that, although Florimonte initially bases her claims on personal injury, a significant portion of her Complaint is devoted to discussing the Borough's alleged unconstitutional taking of her Property, as in each of her previous complaints. (Complaint at 8-9.)
Florimonte argues that, under Rule 1020(d) as it existed when she filed the 2003 Complaint, she was not required to join all of her actions in a single complaint and that her injuries in 2005 were unforeseeable when she filed her 2003 Complaint. However, we note that the 2003 Complaint is not the only complaint Florimonte has filed against the Borough regarding the drainage system or her injuries. See Florimonte II, slip op. at 2-3 (describing the allegations of the November 2010 Complaint); Florimonte v. Borough of Dalton (Florimonte I) (Pa. Cmwlth., No. 266 C.D. 2011, filed January 27, 2012), slip op. at 2 (describing the allegations of the August 2010 Complaint). The August 2010 Complaint specifically discusses at least one of the injuries Florimonte sustained in 2005, but makes no claim based upon it. Florimonte I, slip op. at 2 (describing the allegation in the August 2010 Complaint that Florimonte was struck by a falling tree limb). While Florimonte relies heavily on Rule 1020(d) as it existed when she filed her 2003 Complaint, in 2010 Rule 1020(d) provided, as it currently does, that all actions in trespass against the same person arising from the same transaction or occurrence must be joined in the same action or waived. Pa. R.C.P. No. 1020(d). As in all her previous complaints, Florimonte's claim essentially sounds in trespass, arguing that the Borough placed the drainage system on her Property without her permission and has refused to remove it. Even accepting Florimonte's argument that her physical injuries were unforeseeable and could not have been pleaded in her 2003 Complaint or pleaded as additional damages in the proceedings on that 2003 Complaint, Florimonte provides no reason why she should not have pleaded these claims in her August 2010 Complaint. Therefore, these claims, even if not barred by the doctrine of lis pendens, would be waived.
For these reasons, we affirm the Order of the trial court. PER CURIAM ORDER
NOW, October 16, 2012, the Order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is hereby AFFIRMED.