R.J. Puleo & L.B. Puleo v. The Borough of Phoenixville

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard J. Puleo and Lorraine B. Puleo, :

:

Appellants :

:

v. : No. 463 C.D. 2019

: Argued: June 8, 2020

The Borough of Phoenixville, :

Portnoff Law Associates, Ltd., :

Diane M. Boehret, Esq., :

Robert P. Daday, Esq., and :

James R. Wood, Esq. :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: July 10, 2020

Richard J. Puleo and Lorraine B. Puleo (collectively, Landowners)

appeal pro se1 the order of the Chester County Court of Common Pleas (trial court)

1

As this Court has previously noted:

Although Richard J. Puleo . . . has not entered his appearance in

this Court . . . we take notice that Landowner Richard J. Puleo is a

member of the Pennsylvania Bar. See, e.g., People v. Austin, 451

N.E.2d 593, 595-96 (Ill. App. Ct. 1983) (“A court is presumed to

know its officers, and all public officials in civil affairs within its

jurisdiction. Not only may this court notice [a judge’s] position on

the bench within the bounds of the [court’s jurisdiction], but the

court may also notice the judge’s former civil office as a public

defender, or his status as a member of the bar and officer of the

court.”) (citations omitted). See also Rule 201(b) of the

(Footnote continued on next page…)

sustaining the preliminary objections (POs) of the Borough of Phoenixville

(Borough), Portnoff Law Associates, Ltd., and Diane M. Boehret, Esq., Robert P.

Daday, Esq., and James R. Wood, Esq. (collectively, Portnoff Defendants) and

striking Landowners’ Second Amended Complaint with prejudice. We affirm.

On September 22, 2016, the Borough filed a municipal claim for

delinquent water, sewage and trash fees against Landowners’ property, Kenalcon

Apartments, located in the Borough pursuant to the provisions of what is

commonly referred to as the Municipal Claims and Tax Liens Act (Tax Liens

Act).2 On June 16, 2017, the Borough filed a writ of scire facias based on the

claim. On July 26, 2017, Landowners filed an affidavit of defense to the writ, a

Motion to Strike, and a counterclaim and cross claim to the writ. On September

27, 2017, the trial court denied Landowners’ Motion to Strike and sustained the

Borough’s POs to Landowners’ counterclaim and cross claim. On February 14,

2018, the Borough filed a Motion for Judgment for Want of Sufficient Affidavit of

Defense pursuant to Section 19 of the Tax Liens Act, 53 P.S. §7271.

Ultimately, on April 23, 2018, the trial court issued an order entering

judgment in the Borough’s favor, and against Landowners, and the Borough filed a

(continued…)

Pennsylvania Rules of Evidence, Pa. R.E. 201(b) (“The court may

judicially notice a fact that is not subject to reasonable dispute

because it . . . is generally known within the trial court’s territorial

jurisdiction [or] can be accurately and readily determined from

sources whose accuracy cannot reasonably be questioned.”).

Borough of Phoenixville v. Puleo (Pa. Cmwlth., No. 1083 C.D. 2018, filed May 2, 2019) (Puleo

I), slip op. at 1 n.1.

2

Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101-7455.

2

Praecipe for Judgment based on the trial court’s order. On May 1, 2018,

Landowners filed a Motion for Reconsideration to which the Borough responded,

conceding that it did not attach a proposed rule to its Motion for Judgment for

Want of Sufficient Affidavit of Defense pursuant to Section 19 of the Tax Liens

Act, and that the amount of the judgment entered is incorrect. See Puleo I, slip op.

at 14-15. Landowners appealed the trial court’s order, and this Court vacated the

order and remanded for the trial court to reconsider the amount of the judgment

entered in favor of the Borough and against Landowners, and the interest accrued

thereon, based on the Borough’s concession in its response to the Motion for

Reconsideration. See id.3

On July 23, 2018, while the appeal in Puleo I was pending,

Landowners filed a complaint against the Borough and the Portnoff Defendants

based on their pursuit of the municipal claim for delinquent water, sewage and

trash fees against Landowners’ property. The complaint alleged the following

counts: (1) abuse of process in filing and pursuing the municipal claims; (2)

negligence based on the foregoing actions; (3) negligent misrepresentation relating

to the incorrect amount of the lien; (4) slander of title because the judgment was

pursued and entered with reckless disregard for the truth and caused Landowners

economic damage; and (5) fraud against the Portnoff Defendants for initiating and

pursuing these purportedly improper claims on the Borough’s behalf. The

Borough and the Portnoff Defendants filed POs in the nature of a demurrer.

3

This Court also determined that Landowners had waived a number of appellate claims

due to deficiencies in their appellate brief. See Puleo I, slip op. at 15 n.1. See also Pa. R.A.P.

2119(a) (“The argument shall be divided into as many parts as there are questions to be argued;

and shall [be] followed by such discussion and citation of authorities as are deemed pertinent.”).

3

In response, on September 5, 2018, Landowners filed an Amended

Complaint raising the same claims. Supplemental Reproduced Record (S.R.R.) at

51b-141b.4 On September 26, 2018, the Borough filed POs asserting, inter alia,

immunity from liability because the claims did not fall within any of the exceptions

provided in what is commonly referred to as the Political Subdivision Tort Claims

Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542. Id. at 143b.

That same day, the Portnoff Defendants filed POs alleging, inter alia,

the Borough’s immunity and that Landowners’ claims were barred by res judicata

and issue preclusion estoppel because they were the same claims against the same

parties that were raised and rejected in Puleo I. See id. at 143b-148b. The Portnoff

Defendants also raised preliminary objections in the nature of the economic loss

doctrine;5 a demurrer to the abuse of process, negligent misrepresentation, and

slander of title claims; and insufficient specificity with respect to the slander of

title claim because it was unclear based on the facts alleged in the Amended

Complaint as to whether that claim was raised within the one-year statute of

limitations. See id. at 148b-151b.

4

Notably, in the Amended Complaint, Landowners alleged that “[o]n or about July 28,

2018, [they] sold the real property,” and that “[a]t closing on the real property, [they] paid [] the

Borough the sum of $16,688.13, which was the final water, sewer & trash bill owed to the

Borough.” S.R.R. at 58b.

5

As alleged, “[t]he economic loss doctrine generally bars claims for negligence and

negligent misrepresentation when the only damages are economic loss. Excavation Techs. v.

Columbia Gas, [985 A.2d 840, 841-42 (Pa. 2009)].” S.R.R. at 148b. But cf. Dittman v. UPMC,

196 A.3d 1036, 1055 (Pa. 2018) (“[T]he Excavation Technologies Court did not hold that the

economic loss doctrine barred Excavation Technologies’ claim. Rather, it held that Excavation

Technologies failed to state a viable claim for negligent misrepresentation under . . . the

Restatement in the first instance.”).

4

On November 5, 2018, the trial court issued an order sustaining the

Portnoff Defendants’ preliminary objections and granted Landowners leave to file

an amended complaint. S.R.R. at 155b.6 That same day, the trial court issued an

6

As the trial court explained in its order:

[Portnoff] Defendants have filed [POs] in the nature of a

demurrer to each of [Landowners’] counts due to [their] failure to

plead the essential elements of each count. As an example only,

with regard to [Landowners’] claim for abuse of process, we note

that abuse of process will not be found where the defendant has

done nothing more than carry out the process to its authorized

conclusion, even though with bad intentions; there must be a

perversion of the process. Shaffer v. Stewart, 473 A.2d 1017, 1019

(Pa. Super. 1984). We find that [Landowners] have failed to plead

a “perversion of the process.” With regard to [Landowners’]

counts for Negligence, Negligent Misrepresentation and Fraud, we

find that [Landowners] have failed to plead their reliance on

[Portnoff] Defendants’ allegedly fraudulent/negligent statements.

[Portnoff] Defendants have also filed [POs] in the nature of a

demurrer to [Landowners’] counts for Negligence, Negligent

Misrepresentation, Slander of Title and Fraud based on the

doctrine of collateral estoppel. The question presented by a

demurrer is whether, on the facts averred, the law says with

certainty that no recovery is possible. Werner v. Plater-Zyberk,

799 A.2d 776, 783 (Pa. Super. 2002)[.] In the underlying [Tax

Liens Act] Action, [Landowners] filed Counterclaims and Cross

Claims which raised the same averments as the instant Amended

Complaint. The Counterclaims and Cross Claims were dismissed

by Order dated September 24, 2017. Subsequently, [the Borough]

filed a Motion for Want of Sufficient Affidavit of Defense which

was granted by Order dated April 23, 2018.

Finally, [Portnoff] Defendants have filed [POs] in the nature of a

demurrer to the same four Counts as above, based on the doctrine

of absolute judicial privilege. Based on the Amended Complaint

and the pleadings filed in the underlying [Tax Liens Act] Action,

we sustain this Objection.

(Footnote continued on next page…)

5

order sustaining the Borough’s POs and striking Landowners’ claims. S.R.R. at

159b.7

On November 27, 2018, Landowners filed the instant Second

Amended Complaint against the Borough and Portnoff Defendants raising the

same claims that were raised in the prior Amended Complaint. See S.R.R. at 187b-

236b. On December 17, 2018, Portnoff Defendants renewed their POs to the

Second Amended Complaint based on the deficiencies that Landowners failed to

address therein. See id. at 239b-300b. That same day, the Borough filed POs to

the Second Amended Complaint. See generally Reproduced Record (R.R.) at 8a.

On March 7, 2019, the trial court issued an order sustaining Portnoff

Defendants’ POs and striking Landowners’ Second Amended Complaint. S.R.R.

at 359a.8 That same day, the trial court filed an order sustaining the Borough’s

(continued…)

S.R.R. at 155b-157b n.1.

7

As the trial court stated in its order:

[The Borough’s] first [PO] is in the nature of a demurrer based on

the [Tort Claims Act]. Upon review, we find that none of the

exceptions to immunity listed in [Section 8542(b) of the Tort

Claims Act] apply to the instant action. Based on our resolution of

[the Borough’s] first [PO], we do not reach the remaining [POs].

S.R.R. at 159b-160b n.1.

8

In its order, the trial court stated:

[Portnoff] Defendants have filed similar [POs] to those filed to

[Landowners’] Amended Complaint. Upon review of the Second

Amended Complaint, we find that it does not correct the

deficiencies detailed in the footnote to our November 5, 2018

Order sustaining [Portnoff] Defendants’ [POs] to [Landowners’]

(Footnote continued on next page…)

6

POs and striking the claims raised against it in Landowners’ Second Amended

Complaint. Id. at 356b.9 Landowners then filed this appeal of the trial court’s

orders.10

On appeal, with respect to Landowners’ claims against the Borough,

they query, “Whether the [t]rial [c]ourt abused its discretion or committed an error

of law or whether [their] constitutional rights were violated when the [trial c]ourt

sustained the [Borough’s] [POs] and ordered that [their] Second Amended

Complaint [be] stricken with prejudice[.]” Brief for Appellants at 2. Likewise,

(continued…)

Amended Complaint. Since this is [Landowners’] third

unsuccessful attempt, we are striking the Second Amended

Complaint with prejudice.

S.R.R. at 359b-360b n.1.

9

In its order, the trial court stated, “We first note that it is unclear whether [Landowners]

are, in fact, asserting any claims against [the Borough]. However, in the event they are, pursuant

to our Order dated November 5, 2018, we struck all claims against the Borough without leave to

replead.” S.R.R. at 357b n.1.

10

As this Court has explained:

Our scope of review on appeal from an order sustaining

[POs] and dismissing a complaint is limited to determining

whether the trial court committed legal error or abused its

discretion. When considering [POs], we must accept as true all

well-pled facts set forth in the complaint, as well as all inferences

reasonably deducible therefrom, but not conclusions of law. [POs]

in the nature of a demurrer should be sustained only where the

pleadings are clearly insufficient to establish a right to relief; any

doubt must be resolved in favor of overruling the demurrer.

Boyd v. Rockwood Area School District, 907 A.2d 1157, 1163 n.8 (Pa. Cmwlth. 2006) (citations

omitted).

7

with respect to their claims against Portnoff Defendants, they query, “Whether the

[t]rial [c]ourt abused its discretion or committed an error of law or whether [their]

constitutional rights were violated when the [trial c]ourt sustained the Portnoff

Defendants[’ POs] and ordered that [their] Second Amended Complaint [be]

stricken with prejudice.” Id. at 2-3.

As outlined above, the Statement of Questions Involved portion of

Landowners’ appellate brief merely states that the trial court erred or abused its

discretion and violated their constitutional rights in granting the POs and striking

the Second Amended Complaint, without any reference to the manner in which it

committed the error or abused its discretion or “fairly suggest[ing]” the same.

Such generic claims do not preserve any specific issues for our review on appeal.

Pa. R.A.P. 2116(a); Faherty v. Gracias, 874 A.2d 1239, 1245 (Pa. Super. 2005);

Anderson v. Anderson, 544 A.2d 501, 506 n.7 (Pa. Super. 1988).

To the extent that the foregoing Statement of Questions Involved

preserve any appellate issues, Landowners’ constitutional claims were not raised

before the trial court and will not be addressed for the first time in this appeal. See

Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”); In Re Lehigh County Constables, 172 A.3d

712, 717 (Pa. Cmwlth. 2017) (holding that an appellate court may sua sponte

refuse to address an issue raised on appeal that was not raised and preserved

below); Siegfried v. Borough of Wilson, 695 A.2d 892, 894 (Pa. Cmwlth. 1997)

8

(“[Pa. R.A.P.] 302(a) clearly states that issues not raised in the trial court are

waived and cannot be raised for the first time on appeal.”).11

With respect to the remaining appellate claims, the trial court properly

explained its reasoning for sustaining the POs and striking the complaints against

the Borough as none of the asserted claims fall within the exceptions to its

immunity, and against the Portnoff Defendants as the claims were considered and

rejected in the prior Puleo I proceedings, and Landowners failed to allege

sufficient facts in the complaints to support these claims. See S.R.R. at 155b-157b,

159b-160b, 357b, 359b-360b.

11

See also S.R.R. at 372b-375b (Landowners’ Pa. R.A.P. 1925(b) Concise Statement of

Errors Complained of on Appeal); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011), wherein

the Pennsylvania Supreme Court stated, in pertinent part:

Our jurisprudence is clear and well-settled, and firmly

establishes that: [Pa. R.A.P.] 1925(b) sets out a simple bright-line

rule, which obligates an appellant to file and serve a Rule 1925(b)

statement, when so ordered; any issues not raised in a Rule 1925(b)

statement will be deemed waived; the courts lack the authority to

countenance deviations from the Rule’s terms; the Rule’s

provisions are not subject to ad hoc exceptions or selective

enforcement; appellants and their counsel are responsible for

complying with the Rule’s requirements; Rule 1925 violations may

be raised by the appellate court sua sponte, and the Rule applies

notwithstanding an appellee’s request not to enforce it; and, if Rule

1925 is not clear as to what is required of an appellant, on-the-

record actions taken by the appellant aimed at compliance may

satisfy the Rule. We yet again repeat the principle first stated in

[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998),] that must be

applied here: “[I]n order to preserve their claims for appellate

review, [a]ppellants must comply whenever the trial court orders

them to file a Statement of [Errors] Complained of on Appeal

pursuant to Pa. R.A.P. 1925. Any issues not raised in a Pa. R.A.P.

1925(b) statement will be deemed waived.” 719 A.2d at 309.

[(Footnote omitted.)]

9

Moreover, as the trial court noted:

In the instant action as well as the underlying

action, [Landowners] failed to provide any specific

evidence of what they considered to be the correct

amount of the lien. It was not until the Borough filed its

response to [Landowners’] Motion for Reconsideration in

the underlying action that the court had sufficient

evidence of a mistake in the judgment amount. As we

noted in the underlying action, the Motion for

Reconsideration was not properly before the Court when

the Notice of Appeal was filed.

S.R.R. at 379b. In short, Landowners failed to assert valid claims against the

parties in the complaints that were filed in the trial court in this case, and any error

with respect to the amount of the municipal claims was corrected by our remand

order in Puleo I.12

Accordingly, the trial court’s order in this matter is affirmed.

MICHAEL H. WOJCIK, Judge

12

Because Landowners do not address their negligent misrepresentation or fraud causes

of action in the Argument portion of their appellate brief, any purported trial court error in

sustaining the POs and striking these claims has been waived as well. Pa. R.A.P. 2119(a); Puleo

I, slip op. at 15 n.16 (citing Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998)), cert.

denied, 526 U.S. 1070 (1999).

10

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard J. Puleo and Lorraine B. Puleo, :

:

Appellants :

:

v. : No.463 C.D. 2019

:

The Borough of Phoenixville, :

Portnoff Law Associates, Ltd., :

Diane M. Boehret, Esq., :

Robert P. Daday, Esq., and :

James R. Wood, Esq. :

ORDER

AND NOW, this 10th day of July, 2020, the order of the Chester

County Court of Common Pleas dated March 7, 2019, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge