Opinion
No. 266 C.D. 2011
01-27-2012
Carolyn J. Florimonte, Appellant v. Borough of Dalton
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Carloyn J. Florimonte (Florimonte) appeals from the Order of the Court of Common Pleas of Lackawanna County (trial court), which dismissed Florimonte's Complaint (2010 Complaint) and granted the Preliminary Objection of the Borough of Dalton (Borough) asserting that the 2010 Complaint was barred by the doctrine of lis pendens due to the pendency of a prior action by Florimonte against the Borough involving the same underlying facts and seeking the same types of damages (2003 Complaint). On appeal to this Court, Florimonte argues, in relevant part, that the trial court erred in applying the doctrine of lis pendens and by allowing counsel (New Counsel) for the Borough to appear at the argument before the trial court even though the Borough failed to properly serve Florimonte with notice of its change of counsel.
Florimonte filed the 2010 Complaint against the Borough on August 26, 2010. In her 2010 Complaint, Florimonte alleges the following facts. Florimonte's property (the Property) comprises three lots. The Borough owns a water drainage system, part of which is on the Property. Both Florimonte and her predecessors in title to the Property objected to the placement of the drainage system on the Property. The drainage system channels large amounts of water onto the Property. Water from the drainage system has destroyed trees on the Property and interfered with Florimonte's use and enjoyment of the Property. Florimonte requested that the Borough remove the portion of the drainage system on the Property, but the Borough refused and denied responsibility for the drainage system. The Borough permitted the construction of a new home near the Property, which resulted in more drainage onto the Property. In May, 2005, Florimonte was injured by a falling tree limb on the Property. The collection of water on the Property has damaged Florimonte's home and made the Property unmarketable. Based on these facts, Florimonte asserted one claim for emotional distress and suffering due to the deleterious effects the excess water from the drainage system has had on her home. Florimonte asserted a second claim for financial distress/hardship because the excess water has rendered the Property unmarketable and Florimonte had to borrow money in order to maintain the Property.
On September 16, 2010, the Borough filed Preliminary Objections asserting that the 2010 Complaint should be dismissed because: (1) some of the damages set forth in the 2010 Complaint were only speculative; (2) Florimonte's description of her pain and suffering was too vague for the Borough to formulate a response; (3) Florimonte's assertion of financial hardship was too vague for the Borough to formulate a response; (4) Florimonte failed to plead whether the Borough's acts leading to her emotional distress were intentional or negligent; (5) Florimonte failed to plead an exception to sovereign immunity; (6) Florimonte's alleged damages are not cognizable; and (7) the 2010 Complaint is barred because Florimonte already filed a lawsuit based on the same underlying facts. After briefing and oral argument, the trial court issued an order on January 18, 2011, sustaining the Borough's last Preliminary Objection on the basis of the doctrine of lis pendens, based on the still-pending 2003 Complaint. The trial court concluded that the 2003 Complaint and the 2010 Complaint involved the same parties, the same asserted rights, and the same requested relief; therefore, the 2010 Complaint was barred by the doctrine of lis pendens and Rule 1028(6) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(6). Accordingly, the trial court dismissed the 2010 Complaint without reaching the remainder of the Borough's Preliminary Objections.
Rule 1028(a)(6) states that the pendency of a prior action is grounds for preliminary objection to a pleading.
Following the trial court's dismissal of the 2010 Complaint, Florimonte, on February 4, 2011, filed her "Petition to Reverse and Rescind Court Order of January 18, 2011 and Issue Default Judgment to Plaintiff" (Petition to Reverse and Rescind). Florimonte requested that judgment be entered in her favor because the attorney who represented the Borough at the hearing before the trial court was not the same attorney who previously had represented the Borough and she had not been served with notice of prior counsel's withdrawal or of new counsel's appearance. On February 16, 2011, Florimonte filed a Notice of Appeal of the trial court's January 18, 2011 order. On June 24, 2011, the trial court denied the Petition to Reverse and Rescind. This Court now considers Florimonte's appeal.
"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 the trial court erred in: (1) applying the doctrine of lis pendens; and (2) allowing new counsel to represent Borough even though Florimonte had not been properly notified of the change of counsel.
Florimonte also appears to argue that the trial court erred in sustaining the Borough's other Preliminary Objections. However, due to the trial court's disposition on the lis pendens issue, the trial court did not rule on the other Preliminary Objections. (Trial Ct. Op. ¶ 25.)
We first address Florimonte's argument that the trial court erred in dismissing her complaint on the basis of the doctrine of lis pendens. Generally, lis pendens "applies when, in the previously filed case, the parties are the same, the rights are the same and the requested relief is the same." Swift v. Radnor Township, 983 A.2d 227, 234 (Pa. Cmwlth. 2009) (citing Feldman v. Lafayette Green Condominium Association, 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. The doctrine 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, 983 A.2d at 234. In this case, Florimonte argues that the 2003 Complaint sounded in law, articulating claims for negligence and trespass. By contrast, she argues, the 2010 Complaint sounds in equity, seeking damages for financial and emotional distress. Although the separate equity action was consolidated with civil actions on July 1, 2004, Florimonte argues that the 2003 Complaint was filed while law and equity were still separate actions. She asserts that, because law and equity were separate actions when she filed the 2003 Complaint, they cannot be the same cause of action here and the doctrine of lis pendens does not apply.
By order dated December 16, 2003, effective July 1, 2004, the Pennsylvania Supreme Court merged actions in equity with civil actions. Supreme Court Order, December 16, 2003, No. 402 Docket No. 5 (In re Consolidation of the Action in Equity with the Civil Action). As Florimonte points out, she filed her 2003 Complaint prior to the merger of actions in equity and civil actions. However, the key questions in a lis pendens analysis, aside from the identity of the parties, an issue not contested here, are what are the rights asserted and the relief sought. Swift, 983 A.2d at 234. In the 2003 Complaint, Florimonte complained that excessive water from the Borough's drainage system, which she alleged the Borough had placed on the Property without her permission, was causing damage and creating a dangerous condition on the Property. (2003 Complaint ¶¶ 5-8, 16, 19, Supp. R.R. at 13a-14a.) As a remedy, Florimonte requested both money damages and an order directing that the drainage system be removed from the Property to prevent the deposit of excessive amounts of water on the Property. (2003 Complaint at 3-4, Supp. R.R. at 14a-15a.) In the 2010 Complaint, Florimonte makes essentially the same arguments—that the Borough's drainage system has damaged and created dangerous conditions on the Property. (2010 Complaint ¶¶ 7-8, 31-32, 47, R.R. at 7a, 9a-10a, 12a.) Again, Florimonte seeks monetary damages. (2010 Complaint at 6-7, R.R. at 11a-12a.) Because the rights asserted and the remedies sought are the same in the two Complaints, we hold that the trial court did not err in concluding that the 2010 Complaint should be dismissed pursuant to the doctrine of lis pendens.
The fact that Florimonte seeks what is essentially injunctive relief in the 2003 Complaint is instructive. Generally, injunctive relief is equitable in nature. Commonwealth v. TAP Pharmaceutical Products, Inc., ___ A.3d ___, ___, (Pa. Cmwlth. No. 212 M.D. 2004, filed August 31, 2011), slip op. at 43. Therefore, although Florimonte argues that lis pendens cannot bar her 2010 Complaint, which asserts equitable claims, because her 2003 Complaint was in the form of a civil action, her 2003 Complaint, in fact, sought relief that appears to be equitable in nature. Moreover, even prior to the merger of equitable and civil actions in 2004, it was not uncommon for equitable claims to be raised in civil action complaints. See, e.g., Stackhouse v. Pennsylvania State Police, 574 Pa. 558, 832 A.2d 1004 (2003) (discussing whether jurisdiction over a complaint asserting both trespass claims for monetary damages and equitable claims for injunctive relief properly lay with the Commonwealth Court or with a court of common pleas). --------
In her brief, Florimonte requests that, if we hold that the trial court did not err in applying the doctrine of lis pendens, this Court order the trial court to consolidate the 2010 Complaint with the case initiated by the 2003 Complaint. Pursuant to Rule 213 of the Pennsylvania Rules of Civil Procedure, a trial court may consolidate matters involving similar questions of law and fact or arising out of the same set of circumstances. Pa. R.C.P. No. 213. "The decision to consolidate, however, rests within the discretion of the trial court and is not a matter of right." Feldman, 806 A.2d at 502. Florimonte did not request, either in her briefs to or in her argument before the trial court, that the trial court consolidate her 2010 Complaint with her 2003 Complaint as an alternative to dismissing the 2010 Complaint. Because Florimonte never requested that the trial court consolidate her claims pursuant to Rule 213, we cannot say that the trial court abused its discretion in not doing so.
Finally, we address Florimonte's argument that the trial court erred in allowing New Counsel to represent Borough even though she had not been properly notified of the change of counsel and that the proper course would have been for the trial court to grant default judgment in Florimonte's favor. On November 9, 2010, the counsel who had drafted the Borough's Preliminary Objections (Old Counsel) withdrew his appearance and New Counsel, who was to represent the Borough at argument before the trial court, entered his appearance. It is not clear on the face of the document withdrawing Old Counsel's appearance and entering New Counsel's appearance (Entry of Appearance) whether the Withdrawal/Entry was served on Florimonte; however, the Borough admits in its brief to this Court that the Entry of Appearance was not served on Florimonte prior to the argument before the trial court. During argument before the trial court, Florimonte did not object to New Counsel's representation of the Borough. After the trial court dismissed the 2010 Complaint, Florimonte filed her Petition to Reverse and Rescind, in which she argued that she was entitled to a default judgment because service of the Entry of Appearance was not properly made and she was not notified of New Counsel's entry of appearance within 5 days. By Order dated June 24, 2011, the trial court denied the Petition to Reverse and Rescind on the grounds that Florimonte did not allege that she suffered any prejudice based on the Borough's failure to serve her with the Entry of Appearance and because she failed to object to New Counsel's representation of the Borough during the argument before the trial court.
Before this Court, Florimonte argues that, pursuant to Rule 440 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 440(a), which sets forth the proper procedure for the service of legal papers other than original process, she was not served with the Entry of Appearance; therefore, the Entry of Appearance should be given no effect, and the case should be considered as though the Borough had not appeared before the trial court to argue in support of its Preliminary Objections. However, as the trial court correctly pointed out, Florimonte did not object to New Counsel's representation of Borough at the argument. A party "must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal." Commonwealth v. U.S. Mineral Products Co., 927 A.2d 717, 734 n.11 (Pa. Cmwlth. 2007). In addition, as the trial court also noted, Florimonte failed to allege that she suffered any prejudice due to the Borough's representation by New Counsel rather than Old Counsel or by the Borough's failure to properly serve the Entry of Appearance.
For these reasons, we affirm the Order of the trial court.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, January 27, 2012, the Order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge