Petition for Writ of Certiorari — Lal v. Goshen Valley Valley One One (I) & Goshen Valley Valley Two Two (II) (Nos. 07-165, 07-166)

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D recess

07-165MAY 05 2007

No. OFFICE OF THE CLERK

IN THE

Supreme Court Of The GAnited States

October Term, 2007

AMRIT LAL, Ph.D.

Petitioner

VS.

GOSHEN VALLEY ONE (I) &

GOSHEN VALLEY TWO (Il)

CONDOMINIUM ASSOCIATIONS,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

(in No. 330 MAL 2006)

PETITION FOR WRIT OF CERTIORARI

Thomas R. Kellogg, Esquire

Strong Stevens & Wyant

1250 W. Germantown Pike,

Suite 300

Piymouth Meeting, PA. 19462-2444

(610) 832-5900 Extension 229

Attorney for Petitioner

QUESTIONS PRESENTED

1. Is 68 Pa.C.S.A. # 3315, a provision of the Uniform

Condominium Act as enacted in Pennsylvania, awarding

counsel fees to a condominium association incurred in

collecting management fees from condominium owners

unconstitutional because (1) it is framed so that it can be

unreasonably and arbitrarily applied, (2) it has been

unreasonably and arbitrarily applied in the case at bar, (3) it is

unconstitutionally vague and (4) it creates a civil penalty which,

as applied, amounts to cruel and unusual punishment in

violation of U.S. Constitution?

TABLE OF CONTENTS

CORDON UNIO i ees 1

SIE Be eT 1

CONSTITUTIONAL & STATUTORY PROVISIONS .......1

STATEMENT OF THE CASE. occcicsicescsecscssscccsesscssreccorae 2

REASONS FOR GRANTING THE WRIT ....sscssssssssssssseseees 3

CI ne ll

INDEX TO APPENDICES

Appendix A (Supreme Court of Pennsylvania):

Order of the Supreme Court of Pennsylvania

Dated February 7, 2007

Order of the Supreme Court of Pennsylvania

Dated November 1, 2006

Appendix B (Commonwealth Court of Pennsylvania)

Order of the Commonwealth Court of Pennsylvania dated

April 3, 2006

Opinion and Order of the Commonwealth Court of Pennsylvania

dated February 6, 2006

Appendix C (Court of Common Pleas of Chester County, Pennsylvania)

Opinion and Order of the Chester County Common Pleas Court

dated March 7, 2005

Opinion and Order of the Chester County Common Pleas Court

dated March 2, 2005

Appendix D (Constitutional and Statutory Provisions

U.S. Const., Amends. V, VIII and XIV

68 Pa.C.S.A. # 3315

eee

TABLE OF AUTHORITIES CITED

CASES: Page

Ashcroft v, ACLU, 535 U.S. 564, 122 S.Ct. 1700 (2002)........... 10

Beckett v. Laux, 395 PA. Super. 563, 577 A.2d 134 (1990).......... *

Borough of Bedford Woods y. Platts,

799 A.2d 984 (PA. Cmwilch. 2002) ...........cccccccccsccssscscecsssessonssees 6

In re Estate of Burch, 402 PA. Super. 314, 586 A.2d 986 (1991).....7

Centennial Station Condo. Ass’n v. Schaefer Co. Builders,

Be Ely Be Ee ie”, Ree 1) 2 5 Me RS OA i i net re RE 9

Cooper Industries, Inc. v. Leatherman Tool Group, Inc.,

i BOE ALS, A: BEA DAA BOF Ct irc stewrihcsitsndrscineconscivelssntanes 10

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Cr. 518 (1966)...... 10

Gideon v. Wainwright, 332 U.S. 535, 83 S.Ct. 792 (1963).......... 9

Glen-Gery Corporation v. ZHB of Dover Tp.,

York Co., PA, et al., 589 Pa. 135, 907 A.2d 1033 (2006) .......... 5

Hagar v. Reclamation Dist. No. 108,

DEE ies Fa We ay I CI rashes iadecenscccckvccvccocccctciderened 9

International Union, UMW of America v. Bagwell,

Sis US: Gli, TAG Gh Fa CE iviireviverhchcceccectalsctsctiiess 10

Kelly v. Milner Hotels, 176 PA. Super. 316, 106 A.2d 636 (1954).....7

Klopper y. North Carolina, 386 U.S. 213, 87 S.Ct. 988 (1967)...9

In re LaRocca’s Trust Estate, 431 PA. 542, 246 A.2d 337 (1968)....8

iv

BEF TA AFF GOO aes QUAD sitinvisctnivinshtseiivsyaicieiicessnersssstebsiesinies 6

Logan v. Marks, 704 A.2d 671 (PA. Super. 1997)...........s.sscceseeees 8

2000 PA. Super. 134, 751 A.2d 683 (PA. Super. 2000)............- 8

Sewak v. Lockhart, 699 A.2d 755, 763 (PA. Super. 1997) .......... 11

Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541 (1988)........ 5

Roadway Express v. Piper, 447 U.S. 752, 100 S.Ct. 2455 (1980).....7

United States v. Ward, 448 U.S. 242, 100 S.Cr. 2636 (1980).....10

Wr ld Ho ers. iation, Inc. v. De Yo

410 Pa. Super. 621, 600 A.2d 960 (1991) ..ccsccsssssssssssssssssseseecee 8

CONSTITUTIONS

Og IE OE III ssc scceeesmsnnecnbcisseduiaorsbianecaspiaisanans 9

ee aa IIIS, Waits dcicivninconsoentnmsexcrssundcebnobebcsouainocaiesiion 1,9

Re My PUNE. HOE sik siviatnnsesovieroeesniuicidbaatbicisbabesiensosiads 1, 10

Say FINN: FEE Y siceccctursecociscorssiitoeonicatibbicdidisensonionann oe

an I PUNIINI SAIN Dr aicicevvnncesvevestusirvecesiondciosanvancnbuicinaseubiocl 10

STATUTES

ENR WF BARN sic Sicssnsds scsi intra hetGiomttsiccalcsgninionbdicioasiegabecilonedlclae l

IT TE Shs sin chika seceoeeshandipba sieht spa ddnuicecscscsstionien 5

SAO BG Methaisiatickatanstikpitccenstndcsndapenoncrekabubnsetal 1, 4, 5, 11

RULES

Saran mens Cte NMI Bassin ain cacceseaneonisisenesevaieesatesoinonibigionc 3

43

PARTIES

All parties to this action are listed in the caption of the case.

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Amrit Lal, respectfully prays that a writ of

certiorari issue co review the Orders of the Supreme Court of

Pennsylvania in No. 330 MAL 2006 wherein the Respondent is

Goshen Valley One (I) Condominium Association denying

leave to appeal from the Order of the Commonwealth Court of

Pennsylvania affirming the Judgment of the Court of Common

Pleas of Chester County, Pennsylvania awarding damages, coun-

sel fees and costs to the Respondent.

OPINIONS BELOW

The Orders and Opinions of the Supreme Court of

Pennsylvania in No. 330 MAL 2006, the Commonwealth Court

of Pennsylvania and the Court of Common Pleas of Chester

County, Pennsylvania are not reported, and appear as

Appendices to this Petition.

JURISDICTION

The Order of the Supreme Court of Pennsylvania deny-

ing leave to appeal in No. 330 MAL 2006 was filed on

November 1, 2006. A timely Application for Reargument was

filed on or about November 14, 2006. The Order of the

Supreme Court of Pennsylvania denying the Application for

Reargument was filed on February 7, 2007. This Court's juris-

diction is invoked under Title 28 U.S.C. # 1257(a).

CONSTITUTIONAL & STATUTORY PROVISIONS

INVOLVED

Amendments V, VIII and XIV to the United States Constitution

are set forth in Appendix D. Also included in Appendix D is 68

PA.C.S.A. # 3315.

STATEMENT OF THE CASE

This matcer is a companion case with the Petition for a

Writ of Certiorari to review the Orders of the Pennsylvania

Supreme Court in No. 331 MAL 2006 wherein the Respondent

is Goshen Valley Two (II) Condominium Association which

were entered on the same date and involve for the most part the

same issues of law. The underlying facts of these two cases are

simple. They concern collection of a small amount of assess-

ments pertaining to two condominiums owned by the

Petitioner. The reason it is before this Honorable Court is

because the attorney fees awarded were way out of proportion to

the amounts of the assessments charged by the associations.

Both condominiums were situated in Goshen Valley

Condominiums, Chester County, PA. The condominium

involved in this Petition was Unit No. 907 Goshen Valley (1).

On April 19, 2002 petitioner made the successful bid for Unit

907 in Goshen Valley (1). A sheriff’s deed was issued dated June

19, 2002, but the former owner remained in possession of the

property unit the first week of July, 2002 through no fault of the

purchaser. The former owner was not evicted until the first week

of July, 2002. The Respondent association took no steps in mak-

ing demand for fees from the former owners or from the sher-

iff’s schedule of distribution. The petitioner was billed from the

date of sheriff sale although he did not have possession of the

unit until several months thereafter.

Suit was brought by the condominium associations to

recover the relatively minor charges and both condominium

matters were consolidated for trial. At the trial, Respondent's

bookkeeper admitted that the greater part of this claim of

$13,013.73 (reduced to $12,913.73) was legal fees. The

Petitioner's requests for separate trials was denied. The case was

tried to a jury, but no testimony was presented with respect to

the attorneys fees except just to show what they were. The jury

became confused and informed the judge that they could not

decide on legal fees. The trial court then gave written instruc-

tions to the jury as to how and what the jury should decide.

This error was referred to in post-trial motions. Shortly after the

judge had given written instructions the jury returned verdicts

for the Respondents in both cases including attorney fees.

Post-trial motions and a motion for reconsideration were

denied. The Commonwealth Court affirmed and an application

for reargument was denied on April 3, 2006. A Petition for

Allowance of Appeal was filed in the Supreme Court of

Pennsylvania. The Petition was denied and an Application for

Reargument was filed which was also denied. This Petition for

a Writ of Certiorari is filed because of the vague and jumbled

language of the statute which gives a blank check for the impo-

sition of attorneys fees on the unit owners without due process

of law. Furthermore, in this case the extraordinary amount and

size of the counsel fees claimed in relation to the underlying

claims for condominium charges is so grossly out of proportion

that the counsel fee award is a violation of the United States

Constitution.

REASONS FOR GRANTING THE WRIT

The following reasons are advanced for the granting of a writ of

certiorari in this matter in accordance with the guidelines set

forth in Rule 10 of the Rules of the Supreme Court of the

United States.

THE AWARD OF COUNSEL FEES BY THE TRIAL

COURT IN THIS CIVIL ACTION IN AN AMOUNT OF

MANY MULTIPLES OF THE SMALL AMOUNT OF THE

CLAIM, ITSELK WAS A CONSTITUTIONAL

VIOLATION BECAUSE:

(1) IT WAS AN UNREASONABLE, ARBITRARY AND

OPPRESSIVE CONSTRUCTION OF THE STATUTE

AUTHORIZING COUNSEL FEES,

(2) PROOF OF REASONABLENESS OF COUNSEL FEES

AS REQUIRED BY THE STATUTE WAS NOT INTRO-

DUCED,

(3) THE COURT DID NOT PROPERLY INSTRUCT THE

JURY ON THE NECESSITY FOR PROOF OF REASON-

ABLENESS AND

(4) THE STATUTE WAS TOO VAGUE AND IMPRECISE.

The principal issue in this matter is whether it is proper for a

court, acting under a statute allowing "reasonable counsel fees"

incurred in collecting amounts due a condominium association

from a condominium owner, to award counsel fees in an amount

approximately 15 times the amount of the claim for which liti-

gation was instituted. The governing statute, 68 Pa.C.S.A. #

3315, in relation to attorney fees is neither separate nor precise

in that it allows only "reasonable" counsel fees to a condomini-

um association incurred in collecting charges owed by an indi-

vidual owner. That statute provides, in applicable part:

“(a) GENERAL RULE.-- ....Unless the declaration otherwise

provides, fees, charges, late charges, fines and interest charged

pursuant to section 3302(a)({10), (11) and (12) (relating to

powers of unit owners’ association) and reasonable costs and

expenses of the association, including legal fees, incurred in

nnection with ion of s e the iation

by the unit owner or enforcement of the provisions of the dec-

laration, bylaws, rules or regulations against the unit owner are

enforceable as assessments under this section. ..."

In the usual case, counsel fees are some fraction of the

principal sum at issue. However, in the case at bar the charges

of the Associations were astoundingly less than the counsel fees

awarded. The record indicates that judgment was entered for

the plaintiff in Goshen Valley (1) for $9,940.12 and in Goshen

Valley (II) for $12,913.73. Respondents admit that by far the

greater part of each of these judgments was for counsel fees.

Respondents claim counsel fees by virtue of 68

Pa.C.S.A.3315 which provides that a unit owner in a condo-

minium is responsible for “reasonable legal fees" incurred by a

condominium association in attempting to collect assessments

owed by the unit owner. It is not too late under Pennsylvania

procedure to show the constitutional defectiveness of the statute

and the way it was applied in this case. Glen-Gery Corporation

v. ZHB of Dover Township, York Co., PA, et al., 589 Pa. 135,

907 A.2d 1033 (2006).

As plaintiff the Respondents bore the burden of proving

by the preponderance of the evidence that the claimed counsel

fees were reasonable. The trial transcript shows no effort to

prove the reasonableness of the counsel fees. There were simply

no facts in the record upon which a finding of reasonableness

could be based. Moreover, the judge’s charge contained no

explanation to the jury of need for proof of the reasonableness

of the fees nor any exposition of the applicable standard of rea-

sonableness. In Pierce v. Underwood, 487 U.S. 552, 108 S.Cr.

2541 (1988), an analogous case, this Court held that an award

for attorney fees under the Equal Access to Justice Act, 28

U.S.C. 2412, was subject to an abuse of discretion standard on

review. The EAJA allowed attorney fees based on the prevailing

rates for the kind and quality of services furnished, but not in

excess of $75 per hous unless inflation or particular special cir-

cumstances could be shown which justified a higher rate.

The counsel fees are grossly out of proportion to the

amount sought to be collected. In Borough of Bedford Woods

v. Platts, 799 A.2d 984 (Pa. Cmwlth. 2002) the court implied

that where an attorney is only recovering of a specific monetary

sum, the amount of the sum should be considered in determin-

ing the reasonableness of the fees claimed.

The Respondents produced no time records nor was

there testimony as to how his hourly rate or other method of

determining the fee. There was no expert testimony on the issue

of whether his rate was reasonable and in accord with local prac-

tice. There was no proof that the time charged by the attorney

was appropriate. There was no proof that the services rendered

were necessary and competently rendered.

Not only did the Respondents’ lawyer fail to produce an

expert to justify his fees, the Respondent did not even present a

fact witness on the reasonableness of his fees and the necessity

for the work. The Respondent should have been subject to the

usual cross-examination appropriate in a civil jury trial.

Nothing is said in the record about any efforts to settle the

underlying quite small amounts at issue. Perhaps the litigation

could have been headed off by a good faith effort to settle. The

failure of the Associations’ attorney to work out a reasonable set-

tlement on such small matters calls into question the necessity

of his legal services and the reasonableness of his charges.

In LaSalle Nat'l Bank v. First Conn. Holding Group,

287 F.3d 279 (3d. Cir. 2002), it was said that in reviewing for

abuse of discretion of the imposition of sanctions upon an attor-

ney under 28 U.S.C. 1927, abuse of discretion occurs when the

court bases its opinion on a clearly erroneous finding of fact, an

erroneous legal conclusion, or an improper application of law to

fact. The analogy is clear to this case wherein sanctions in the

form of excess attorney fees were imposed upon the Petitioner.

An abuse of discretion appears to have occurred in the case

presently before the Court because the amount of counsel fee

compared to the amount of the principal claim is facially unfair.

Furthermore, it resulted from an erroneous conclusion about the

meaning of the term "reasonable" and an improper application

of the statute authorizing award of counsel fees to the facts

before the court.

The allowance of counsel fees to the winning party in

civil legal action in Pennsylvania is in derogation of the common

law. Statutes in derogation of the common law should be strict-

ly construed. Kelly v. Milner Hotels, 176 Pa. Super. 316, 106

A.2d 636 (1954). The important term in the statute is “reason-

able". The statute should have been construed to require con-

crete proof of the reasonableness of the counsel fees. Beckett v.

Laux, 395 PA. Super. 563, 577 A.2d 134 (1990).

In Roadway Express v. Piper, 447 U.S. 752, 100 S.Ct.

2455 (1980), the Court said (at p. 766 of 447 U.S.), "Like other

sanctions, attorney's fees certainly should not be assessed lightly

or without fair notice and an opportunity for a hearing on the

record." The trial court did not afford a hearing on the reason-

ableness of counsel fees on the record as required by Roadway

Express v. Piper. The record is devoid of any indication that a

standard of reasonableness was introduced to the jury or consid-

ered by them. In determining reasonableness the trial court

should have considered the amount and character of the work,

the difficulty of the problems, the amount or value in question,

the degree of responsibility and the professional skill and stand-

ing of the attorney. In re Estate of Burch, 402 Pa. Super. 314,

586 A.2d 986 (1991). It would be harmful to jurisprudence

involving award of counsel fees if the decision were allowed to

become precedent.

In McCauslin v. Reliance Finance Co., 751 A.2d 683

(Pa. Super. 2000) the court held that an award of counsel fees

more than twice the actual damages raised a question regarding

the reasonableness of the fee award. In Logan v. Marks, 704

A.2d 671 (Pa. Super. 1997) the court pointed out that the

degree of success of the attorney is the critical consideration in

determining whether counsel fees were reasonable. The success

of the attorney in relation to the fees charged in the case at bar

was meager. The criteria for determining reasonableness of

counsel fees were established by the Pennsylvania Supreme

Court in LaRocca’s Trust Estate, 431 Pa. 542, 246 A.2d 337

(1968), yet they were not mentioned to the jury in the judge's

charge. This resulted in a deprivation of the Petitioner's proper-

ty without Due Process of Law.

In Wrenfield Homeowners’ Association, Inc. v. De

Young, 410 Pa. Super. 621, 600 A.2d 960 (1991), the court

required proof of the reasonableness of the total time expended.

The court’s opinion indicates the type of evidence that should

have been presented on the issue of reasonableness of counsel

fees.

As in McCauslin v. Reliance Finance Co., supra the

defendant in the case at bar was not afforded a fair opportunity

to address the attorney fee issue and as in McCauslin more than

twice the amount of actual damages was awarded. The

McCauslin court held that this fee certainly raised a question as

to the reasonableness of the award of counsel fees. In McCauslin

the court said (at p. 686 of 751 A.2d): "...the term ‘reasonable’

does impart a sense of proportionality between an award of

damages and an award of attorney's fees....". The court also

wanted to avoid creating an environment which would encour-

age attorneys to spend extensive time on relatively small cases in

order to receive large attorney fee awards. Such an environment

may develop if this decision is allowed to stand. This would pro-

vide an open license to attorneys to charge anything they want.

A statute which authorizes a court to award counsel fees

in a simple collection case which are a multiple of the sum

sought to be collected should be considered per se unconstitu-

tional. Such a statute impedes the litigant from taking full

advantage of the legal process affording him civil defenses and is

therefore in violation of U.S. Const., Amend. XIV. The protec-

tion afforded by the Bill of Rights of U.S. Const. must be given

by the states in both the substantive and procedural mode.

Klopper v. North Carolina, 386 U.S. 213, 87 S.Ct. 988 (1967);

Gideon v. Wainwright, 372 U.S. 535, 83 S.Ct. 792 (1963). The

Fourteenth Amendment, itself, also requires directly the provi-

sion of substantive and procedural due process by the states.

Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 4 S.Ct. 663

(1884), wherein the Court said that due process means that

there can be no proceeding resulting in the deprivation of prop-

erty without the observance of the general rules established in

our system of jurisprudence for the security of private rights.

In the case at bar the normal rules governing burden of

proof were not followed because no evidence of the reasonable-

ness of the fees charged was presented as required by state law as

expressed in Centennial Station Condo. Ass'n v. Schaefer Co.

Builders, 800 A.2d 379 (Pa. Cmwlth. 2002) wherein the court

held that the trial court had to receive evidence to establish the

amount of attorney's fees. The Respondent did not give the

Petitioner the opportunity required by the Due Process Clause,

U.S. Const., Amend. V to explain his objections to the charges.

The Petitioner's right to use his financial resources to defend

himself against claims he believed to be unfounded should not

have been discouraged by the threat of exorbitant legal fees

chargeable against him by his opponents.

The Excessive Fines Clause of U.S. Const., Amend. VIII

applies to the states. Cooper Industries, Inc. v. Leatherman Tool

Group, Inc., 532 U.S. 424, 121 S.Ct. 1678 (2001). Where a

statute is so punitive in purpose or effect that it cannot reason-

ably be considered civil, it should be deemed a criminal statute

for purposes of constitutional protections. U.S. v. Ward, 448

U.S. 242, 100 S.Ct. 2636 (1980). The application of 68

Pa.C.S.A. 3315 in the case at bar with respect to counsel fees was

so severe that it should be treated as a criminal statute for pur-

poses of Constitutional protections. International Union,

UMW of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552

(1994).

PA. Const., Article I, sec. 26 forbidding the denial to

any person the enjoyment of any civil right or the discrimination

against any person in the exercise of any civil right was also

ignored by the trial court and the state reviewing courts. The

failure to impose a standard of reasonableness upon the award of

counsel fees infected the proceeding with discrimination against

the Petitioner in violation of both the U.S. and the Pennsylvania

Constitutions.

It is recognized in Federal jurisprudence that undue

vagueness in a statute may render it unconstitutional. Ashcroft

v. ACLU, 535 U.S. 564, 585, 122 S.Ct. 1700 (2002). In

Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518 (1966), the

U.S. Supreme Court held that a law fails to meet the require-

ments of due process when it is so vague and lacking in stan-

dards that the public is left uncertain as to the statute’s require-

ments and judges and juries are free to decide cases without any

legally fixed standards. That is exactly what happened in the

case at bar. The lower court felt authorized to award outrageous-

ly high counsel fees because there were no standards but the

vague term "reasonable" in 68 Pa.C.S.A. 3315. The

10

hii

vagueness and jumbled nature of the language can be seen

readily in the following quote from the statute.

"(a) GENERAL RULE.-- ....Unless the declaration otherwise

provides, fees, charges, late charges, fines and interest charged

pursuant to section 3302(a)(10), (11) and (12) (relating to

powers of unit owners’ association) and reasonable costs and

expenses of the association, including legal fees, incurred in

connection with collection of any sums due the association by

the unit owner or enforcement of the provisions of the decla-

ration, bylaws, rules or regulations against the unit owner are

enforceable as assessments under this section...."

At the trial a more concrete standard was suggested by

the Petitioner, but his request was not honored. Specific guide-

lines such as set forth in Sewak v. Lockhart, 699 A.2d 755, 763

(Pa. Super. 1997) could have been given to the jury.

CONCLUSION

The above reasons make it clear that a precise standard relating

to attorney's fees is absent from the statute and that the statute

should be declared unconstitutional as written and as applied in

this case. Therefore, Petitioner respectfully requests that this

Court grant a Writ of Certiorari directed to the Supreme Court

of Pennsylvania.

Respectfully submitted,

Thomas R. Kellogg, Esq.

Strong Stevens & Wyant

1250 W. Germantown Pike

Suite 300

Plymouth Meeting, PA 19462-2444

610-239-8600 ext. 229

11

tes On

ier ig lea

APPENDIX A

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

GOSHEN VALLEY ONE (1)& GOSHEN : No. 330 MAL 2006

VALLEY TWO (ii) CONDOMINIUM :

ASSOCIATION,

Application for Reargument

Respondent

v.

AMRIT LAL AND RST PARTNERS

PETITION OF: AMRIT LAL

PER CURIAM:

AND NOW, this 7th day of February, 2007, Petitioner's Application for

Reargument is DENIED.

TRUE & CORRECT COPY

NORINA K. BLYNN

CHIEF CLERK

ATTEST: FEB - 7 - 2007

12

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

GOSHEN VALLEY ONE (1)& GOSHEN: No. 330 MAL 2006

VALLEY TWO (il) CONDOMINIUM :

ASSOCIATION,

Petition for Allowance of

v. ; Appeal from the Order of

the Commonwealth Court

AMRIT LAL AND RST PARTNERS

PETITION OF: AMRIT LAL

ORDER

PER CURIAM:

AND NOW, this 1st day of November, 2006, the Petition for Allowance

of Appeal is DENIED.

TRUE & CORRECT COPY

NORINA K. BLYNN

CHIEF CLERK

ATTEST: NOV - 1 - 2006

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GOSHEN VALLEY ONE (1) & - — No.: 1429 CD 2005

GOSHEN VALLEY TWO (il) :

CONDOMINIUM ASSOCIATION

V.

AMRIT LAL

APPELLANT

GOSHEN VALLEY ONE (1) & - No.: 1574 CD 2005

GOSHEN VALLEY TWO (ii)

CONDOMINIUM ASSOCIATION

V.

AMRIT LAL AND RST PARTNERS

APPEAL OF: AMRIT LAL

NOW, April 3, 2006, having considered appellant's application

for reconsideration before the Court en banc, the application is DENIED.

BY THE COURT:

JAMES GARDNER COLINS

PRESIDENT JUDGE

Certified from the Record

14

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GOSHEN VALLEY ONE (1) &

GOSHEN VALLEY TWO (ii)

CONDOMINIUM ASSOCIATION

Vv. Pn

AMRIT LAL : No.: 1429 CD 2005

APPELLANT :

GOSHEN VALLEY ONE (1) &

GOSHEN VALLEY TWO (i)

CONDOMINIUM ASSOCIATION

V.

AMRIT LAL AND RST PARTNERS

- — No.: 1574 CD 2005

APPEAL OF: AMRIT LAL : Submitted: December 23, 2005

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE JAMES R. KELLEY, Senior Judge

OPINION NOT REPORTED:

MEMORANDUM OPINION

BY JUDGE McGINLEY FILED: FEBRUARY 6, 2006

Amrit Lal (Lal) appeals pro se from judgments entered by the Court

of Common Pleas of Chester County (trial court) after denial of Lal’s post-trial

motion attacking jury verdicts in favor of Goshen Valley One Condominium

Association (Goshen Valley |) in the amount of $12,913.73 and in favor of

Goshen Valley Two Condominium Association (Goshen Valley II) in the amount

of $9,940.12.

15

Lal and RST Partners' purchased a condominium unit known as 907

Valley Drive at a sheriff’s sale on April 19, 2002. All owners and members of

Goshen Valley (I) must adhere to the condominium documents, rules and reg-

ulations approved by Goshen Valley (I). By letter dated July 11, 2002, Goshen

Valley I through its attorney Glenn M. Ross (Attorney Ross) informed Lal that

he owned Goshen Valley (1) $956.53, which amount represented the unpaid bal-

ance of condominium fees and late fees due for the period of April 19, 2002,

through June 2002, of $423.65, plus February 2002 Condominium fees of

$157.88, a late fee of $25.00 for February 2002, and a legal fee of $350.00. Lal

was informed that if he brought his account current before the deadline stated in

the letter the legal fees would be reduced to $100. Letter from Glenn M. Ross,

July 11, 2002, at 2. By letter dated July 24, 2002, Attorney Ross informed Lal

that he confirmed with the sheriff that the date of sheriff’s sale was April 19,

2002, and that he was responsible for condominium fees from that date forward.

- Attorney Ross acknowledged that he made an error in the July 11, 2002, letter

and that instead of owing money for February 2002, it should have stated July

2002. Letter from Glenn M. Ross, July 24, 2002, at 1.

After Lal declined to pay the alleged delinquency, Goshen Valley I insti-

tuted a complaint with a district justice on October 4, 2002. On January 22,

2003, the district justice entered judgement in favor of Goshen Valley I in the

amount of $1,929.36. Lal appealed to the trial court. On March 11, 2003,

Goshen Valley I filed a complaint with the trial court and alleged that Lal owed

$2,773.60.

'

RST Partners is not a party to this case. Any references to the ownership of the

unit in Goshen Valley I are to Lal.

16

On March 31, 2003, Lal preliminarily objected. On September 9, 2003, the trial

court overruled Lal's preliminary objections. On October 24, 2003, a panel of

arbitrators designated by the trial court entered an award, after hearing, in favor

of Goshen Valley I in the amount of $5,197.72.

Lal then moved to amend or vacate the order of September 9, 2003, on

the ground that the order actually pertained to Goshen Valley II, not the litiga-

tion involving Goshen Valley 1. On November 6, 2003, the trial court denied the

motion. On November 19, 2003, Lal moved to clarify the order of November 6,

2003, and to strike the judgment which he alleged was entered before the plead-

ings closed. On November 24, 2003, Lal moved to strike the arbitration award

and reduce it to zero. On November 24, 2003, the trial court granted the motion

to strike the award and vacated the award of the arbitrators. On November 29,

2003, the trial court vacated its November 6, 2003, order that denied the motion

to vacate the arbitrators’ order, granted the motion to vacate, vacated the order

of September 9, 2003, granted Lal’s request for a ruling on preliminary objec-

tions, and scheduled oral argument on the preliminary objections for December

8, 2003. The trial court determined that Lal had not been permitted to present

his oral argument with respect to his preliminary objections. On December 8,

2003, the trial court overruled the preliminary objections and also denied

Goshen Valley I's motion for reconsideration of the trial court’s order vacating

the arbitration award. Lal answered and raised a counterclaim in which he alleged

that Goshen Valley I failed to require the previous owner of the unit to keep it

clean and requested $2,700.00 in damages. Goshen Valley I denied chat it had

any responsibility for the condition of che condominium at the time Lal pur-

chased. On January 20, 2004, a panel of arbitrators entered an award in favor of

Goshen Valley I in the amount of $9,263.63. Lal appealed to the trial court on

February 19, 2004. By letter dated July 9, 2004, Lal requested that the case be

continued until November or December 2004, because he was recovering from

bypass surgery. The trial court scheduled the trial for December 2, 2004.

17

Lal owned a condominium unit at 1813 Valley Drive, West Chester and

was member of Goshen Valley II. As a member, Lal was subject to the condo-

minium documents, rules and regulations of the Association. By letter dated

December 12, 2002 Goshen Valley II, through Attorney Ross, informed Lal chat

he owed Goshen Valley II $1,123.84, which consisted of $773.84 in unpaid con-

dominium fees, late fees, and fines through November 2002 and a legal fee of

$350.00. Goshen Valley II instituted an action with a district justice for the

amount then due and owing. After hearing before the district justice on March

27, 2003, the district justice entered judgment in favor of Goshen Valley II in the

amount of $1,208.24. Lal appealed to the trial court. On May 15, 2003, Goshen

Valley II filed its complaint with the trial court. Lal perliminarily objected. On

July 19, 2003, Lal’s motion for injunctive relief was denied. On September 5,

2003, the trial court heard oral arguments on the preliminary objections. On

September 22, 2003, Lal filed an answer to Goshen Valley II's complaint, new

matter, and counterclaim. In the counterclaim, Lal alleged chat Goshen Valley II's

refusal to allow his tenant's children to use the swimming pool was recially moti-

vated and chat Goshen Valley II's action was an abuse of process. On October 14,

2003, the trial court deemed the preliminary objections moot because Lal filed

iil. The Trial.

The trial court consolidated the cwo cases, in the interest of judicial

economy for tiral by one jury. Shortly before trial, Lal’s request for a continuance

was denied. The trial court informed the jury that there were two cases which

were required two different verdicts. Notes of Testimony, December 2, 2004,

(N.T.) at 6; Reproduced Record (R.R.) at R.6. Veronica Temple (Temple), an

employee of Robert H. Wise Management, the management company for

Goshen Valley I and Goshen Valley II, stated there was a problem with Lal’s ten-

ants in Goshen Valley II. The children who lived in the unit vandalized the hall-

way and caused other residents to complain. Goshen Valley II had its attorney

contact Lal who agreed to remove the tenants. Lal was billed for the legal expenses

18

Goshen Vallcy II incurred. Also, Lal did not get his chimney inspected in a time-

ly manner as required by the rules and regulations of Goshen Valley II and was

fined. N.T. at 22-24; R.R. at R.22-R.24. Temple further testified that Goshen

Valley II’s rules and regulations permitted Goshen Valley II to assess reasonable

attorney fees in connection with the collection of any assessment. N.T. at 25-26;

at R.25-R.26. Templeton identified a summary of Lal’s payments and charges

and indicated that Goshen Valley II sought $9,940.12 N.T. at 40; R.R. at R.40.

With respect to Goshen Valley I, Templeton identified the "demand for

payment” letters from Attorney Ross sent on July ll, and July 24, 2002.

Templeton identified a summary of Lal's payments and charges for Goshen

Valley I and that Goshen Valley I sought $12,913.73 from Lal. The majority of

the amount was for legal fees. Templeton verified that Goshen Valley I's rules and

regulations authorized Goshen Valley I to assess reasonable attorney fees com-

piled as a result of delinquencies. N.T. at 42, 51, 54; R.R. at R.42, R.51, R54.

Lal objected to the submission to the two summaries for Goshen Valley I and Il

on the basis that the documents were confusing and were biased against him. The

objection was overruled. N.T. at 85; R.R. at R.85.

Lal testified chat he purchased the unit in Goshen Valley I at a sheriff's

sale on April 19, 2002, and the deed was recorded on June 19, 2002. He did not

obtain the deed until july 2002. Lal did not make any payments until he received

a coupon book on August 18, 2002. N.T. at 92-94; R.R. at R.92-R.94. Wich

respect to Goshen Valley II, Lal testified that he persuaded his tenant to leave the

premises. He agreed a new tenant had to be acceptable to Goshen Valley If He

informed Temple that the chimney was inspected by letter dated November 6,

2002. N.T. at 106-107; R.R. at R.106-R.107.

When the trial court inquired if Lal had any points for charge, Lal

replied, “to the extent I understood the law, I have obeyed it.” N T. at 114; R.R.

at R.114. The crial court refused this request. After deliberating, the jury

returned a verdict in the amount of $9,940.12 for Goshen Valley I and

$12,913.73 for Goshen Valley II.

19

On December 13, 2004, Lal moved? for post-trial relief? On December

15, 2004, Goshen Valley I and Goshen Valley II each praeciped the

prothonotary to enter judgment. After judgment was entered, Lal filed a

2 In the motion Lal alleged that the trial court erred when it consolidated

Goshen Valley | and Goshen Valley II and denied him a continuance, when it admitted the state-

ment summaries for Goshen Valley I and II over Lal's objection, when it allowed the amount of

attorney fees to be determined by the jury based on pure speculation, without any foundation from

an expert, when it failed to instruct the jury that an award for attorney fees that was twice the award

for actual damages raised a question whether the fee was reasonable, and when it failed to provide

any instruction on how to determine what was reasonable. Lal also asserted that the crial court erred

when it allowed the issue of attorney fees to be decided without any apportionment of the fees

between the two cases and without any foundation that those fees were either paid or were due and

owing to counsel, when it allowed the issue and amount of attorney fees co be decided by the jury

based on the unsworn statements of counsel in support of the request for attorney fees with DO

testimony by any sworn witness, when it allowed the jury to rely or- Section 3315 of the Uniform

Condominium Act (Act), 68 Pa.C.S. §3315, to determine an award and amount of attorney fees

without providing the jury with any standard or methodology for the determinations of those fees

and without a sworn declaration offered to the jury during the deliberations and prior to the ver-

dict, and when the trial court instructed the jury without permitting Lal to review the charge and

foreclosed any objection during the charge. Lal further asserted the trial court erred when it direct-

ed hun not to object during Attorney Ross's rebuttal to the jury and when it refused to instruct the

jury to disregard Attorney Ross's prejudicial statement that “you have to understand that when a

person purchases a property at sheriffs [sic] sale, you're usually getting a great buy. They're getting

it much less expensively than if you bought it from a sural sale," N.T. at 117-118; R.R at R.117-

R.118., which confused the jury. Lal further argued inat the trial court erred when it refused to

charge using the language of the Act regarding “use and occupancy” as the “governing time and date

when the liability of the new unit owner begins and instead instructed the jury to accept as fact

that Defendant [Lal] was toe owner as of April 2002.” Defendant's Motion for Post-Trial Relief,

Paragraph 12 at 3; R.R. at R.R.21-R.R.23. in addition, Lal challenged the cial court's refusal to

submit into evidence portions of the Act. Lal also stated that Goshen Valley I and II did not pres-

ent sufficient evidence upon which the jury could arrive at che amount of damages to be awarded,

and he was denied access to the points for charge prior to the charge. Finally, Lal asserted that his

motions to compel discovery and his motion for sanctions were never resolved through a hearing

or court order.

3 On the motion, he listed che docket numbers for both Goshen Valley I and

Goshen Valley II. It appears that the prothonotary filed the motions under one docket number.

20

supplementary motion for post-trial relief and asserted that Goshen Valley I and

Goshen Valley II violated Pa. R.C.P. No. 227.4 when they praeciped for the entry

of judgment despite his timely post-trial motion, and when they prevailed upon

TA Title Company to release Lal’s funds to them.‘

On March 7, 2005, in Goshen Valley I, the trial court denied the post-

trial motion, granted the supplementary motion for post-trial relief, and struck

the judgment entered on December 15, 2004, without prejudice to the right of

Goshen Valley I to proceed to judgment. On March 7, 2005, the trial court in

Goshen Valley II denied the motion for post-trial relief.*

In each case Lal moved for reconsideration of the March 7, 2005, orders

and requested a new trial. On April 6, 2005, Lal appealed both cases to the

Superior Court of Pennsylvania. On April 9, 2005, the trial court denied the

motions for reconsideration in both cases because they were mooted by the

appeal. The cases were subsequently transferred to this Court and consolidated.

V.__Araument.

Lal argues® that the trial court abused its discretion when it denied him

the right to legal representation, that the trial court abused its discretion and com-

mitted an error of law when it consolidated the two cases, when it prematurely

5) It is unclear from the record exactly what these funds represent.

5 Lal concedes that the judgment was also struck in Goshen Valley II.

6 In reviewing an appeal from the denial3 of post-trial motions, this Court's

review is limited to a determination of whether the trial court abused its discretion or committed

an error of law. Milan v, Department of Transportation, 620 -2d 721 (Pa. Cmwith.), petition for

allowance of appeal denied, 535 Pa 650, 633 A.2d 154 (1993).

21

entered judgments, and when it submitted written instructions to the jury after

the jury asked the trial court how to determine attorney fees.’

V,____A. Trial Procedures

Initially, Lal contends that the trial court abused its discretion with it

refused to grant a continuance for Lal to obtain representation.

7 In his Statement of Questions Involved, Lal raises three issues that he failed to

address in his post-trial motions: “Should violations by Appellee (Goshen Valley I and Il) of its own

Rules and Documents by not giving proper notice and opportunity for a hearing cause reversal of

lower court judgments,” “Did the court abuse its discretion not to dismiss Goshen Valley cases

when they did not act according to their own Rules, Regulations and condominium documents in

failing to give proper notice of assessments and providing an opportunity for a hearing to resolve

issues, “ and “Is che language of 68 PS. Isic] 3315 too vague and convoluted in mixing attorney

fees with condominium fees and assessments without a clear requirement of competent evidence

on that account. And did the court err in failing to declare that section prima facie ultra vires.”

Because he failed to raise these issues in his post-trial motions, they are waived. See Browne v.

Department of Transportation, 843 A2d 429 (Pa. Cmwith.), petition for allowance of appeal

denied, 581 Pa. 681, 863 A.2d 1149 (2004). Additionally, Lal lists rwo issues in his Statement of

Questions Involved which he did not address in the argument section of his brief: "When the

appellant is unable co obtain possession of a unit because the former owner has not been evicted

by the appellee Goshen Valley, is che appellant liable for assessment of fees 1) upon obtaining pos-

session, 2 upon the recording of the deed or from the date of bidding at Sheriff Sale, and Did the

court err in failing co mold the verdict and prompdy strike premature judgments entered by the

appellees without waiting for three months.” Because he failed to address these issues in the argu-

ment section of his brief they are waived. Di Vito v. City of Philadelphia, 601 A.2d 397 (Pa.

Cmwith. 1991), petition for allowance of appeal denied sub nom., 533 Pa. 613, 618 A.2d 403

(1992). Further, Lal raises cwo issues in the argument section of his brief which he did not list in

the Scatement of Questions Involved: the need to reverse the judgment of the trial court because

Goshen Valley I and II waived their right to attorney fees because they failed to utilize administra-

tive remedies and provide Lal with a hearing and chat Goshen Valley I and II illegaily obtained

judgments and then illegally executed on trust funds held by a title insurance company. Because

Lal failed to list these issues in his Statement of Questions Involved, they are waived. Coraluzzi v.

Commonwealth, 524 A.2d 540 (Pa. Cmwith. 1987).

The trial court® determined in Goshen Valley II that:

Defendant [Lal] urges as error our refusal to grant

another continuance of trial in order to permit him to

retain counsel. Defendant [Lal] had more than suffi-

cient time to retain counsel had he chosen to do so.

Defendant (Lal} waited until the very eve of trial and his

request for a further continuance was merely a ploy to

avoid trial. “The grant or denial of a motion for a con-

tinuance is within the sound discretion of the trial court

and will be reversed only upon a showing of an abuse of

discretion. Commonwealth v. McAleer, 561 Pa. 129,

135, 748 A.2d 670, 673 (2000).

Trial Court Opinion, Goshen Valley II, May 2, 2005 (Goshen Valley II Opinion)

at 3. The trial court’s comment is factually supported by the record, and this

Court finds no abuse of discretion.

Next, Lal contends that the trial court erred when it consolidated the

two cases and the result would have been quite different if the trials were not held

before a jury because the jury was confused.

In the Goshen Valley II, the trial court explained its decision:

This case was tried together with an action between sim-

ilar (but not identical) parties. ..At no time were the two

(2) cases ever consolidated for all purposes. Indeed, the

cases were not consolidated for any purposes except

joint trial. The jury was clearly instructed that it was

hearing two (2) separate cases. The cases involve com-

mon questions of law and fact and are, therefore, prop-

erly cried together pursuant to Pa. R.C.P No.

8 Although the trial court wrote separate opinions for Goshen Valley I and

Goshen Valley II, Lal does not differentiate between them.

23

213(a).©! The decision to try these cases togeth-

er rests within the discretion of the trial court. Feldman

v. Lafayette Green Condominium Association, 806

A.2d 497, 502 (Pa Cmwith. 2002). The two cases here

in question clearly fit within the confines of Pa.R.C.P.

No. 213(a) and defendant [Lal] had demonstrated no

prejudice from the trial of these two actions together.

Goshen Valley II Opinion at 3. This Court finds no legal error by the trial court.

Further, Lal fails to explain why the jury was confused or how he was prejudiced.

V.__B. Argument Regarding Jury Instructions

Lal also contends that the trial court committed error when it provided

written instructions to the jury to assist in the deliberative process. Lal alleges

that the jury was confused over how to determine entitlement to attorney fees

and turned to the trial court for guidance. According to Lal, the trial court pro-

vided the jury with written instructions. The record contains neither the jury's

question nor the trial court’s written instructions.

With respect to the issue, the trial court stated:

Defendants [Lal] argue that we erred by responding in

writing to the jury’s written questions. The record does

not reflect the actions of which defendants [Lal] com-

plain and, in any event, this alleged error was not raised

by post-trial motion and is, therefore, waived.

Defendants [Lal] have not identified what question was

9 Pa.R.C.P. No. 213(a) provides:

In actions pending in a county which involve a common question of

law or fact or which arise from the same transaction or occurrence,

the court on its own motion or on the motion of any party may

order a joint hearing or trial of any matter in issue in the actions,

may order the actions consolidated, and may make orders that avoid

unnecessary cost or delay.

24

Asked, what answers was given, whether defendants [Lal]

objected to the alleged written answer at the time of trial

and how, if at all, such alleged error was prejudicial.

Goshen Valley I, Opinion May 2, 2005, at 2-3. Assuming arguendo that Lal pre-

served the issue in his post-trial motion, the trial court accurately noted that the

record did not contain any reference to written jury instructions, that Lal did not

specifically identify the question, did not identify the answer, did not cite where

he objected, and did not explain how he was harmed by the instruction. There

was no error by the trial court. "

Accordingly, we affirm.

BERNARD L. McGINLEY, Judge

10 Lal also contends that the hasty entry of judgment requires censure and rever-

sal. Lal references that Goshen Valley I and II praeciped for judgment, though his post-trial

motions were outstanding; in violation of Pa.R-C.P. No. 227.4. Lal concedes that the trial court

struck these judgments. Lal does not point to any rule, statue or case law which requires this Court

to reverse.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

GOSHEN VALLEY ONE (1) &

GOSHEN VALLEY TWO (Il)

CONDOMINIUM ASSOCIATION

V. :

AMRIT LAL : No.: 1429 CD 2005

APPELLANT :

GOSHEN VALLEY ONE (1) &

GOSHEN VALLEY TWO (Il)

CONDOMINIUM ASSOCIATION

Vv.

AMRIT LAL AND RST PARTNERS

No.: 1574 CD 2005

APPEAL OF: AMRIT LAL

ORDER

AND NOW, this 6th day of February, 2006 the orders of the

Court of Common Pleas of Chester in the above-captioned matters are

affirmed.

BERNARD L. McGINLEY

JUDGE

Certified from the Record

FEB. 6 - 2006 and Order Exit

26

APPENDIX C

IN THE COURT OF COMMON PLEAS CHESTER COUNTY, PENNSYLVANIA

GOSHEN VALLEY (1)

CONDOMINIUM ASSOCIATION

Plaintiff

vs. : No.: 03-01408

AMRIT LAL, et al., :

Defendent : CIVIL ACTION - LAW

Glenn M. Ross Esquire,

Attorney for Plaintiff

Defendant, Pro se

ORDER

AND NOW, this 7th day of March, 2005, upon considera-

tion of defendants’ motion for Post-Trial Relief in plaintiff's response

thereto and defendants’ supplementary motion for post-trial relief and

to correct plaintiff's errors and to strike an out-of-time reply and the

briefs of the parties and arguments of defendant Lal, it is hereby

ORDERED that the defendants’ motion for post-trial relief and to

strike out-of-time reply are DENIED and defendants’ motion for

post-trial relief is GRANTED and the judgment entered in this action

of December 15, 2004, is hereby STRICKEN, without prejudice to

the right of plaintiff to re-enter judgment now that the motion for

post-trial relief has been denied.

27

IN THE COURT OF COMMON PLEAS CHESTER COUNTY, PENNSYLVANIA

GOSHEN VALLEY (1)

CONDOMINIUM ASSOCIATION

Plaintiff

VS. : No.: 03-01408

AMRIT LAL, et ai., :

Defendent > CIVIL ACTION - LAW

Glenn M. Ross Esquire,

Attorney for Plaintiff

Defendant, Pro se

FILED: 05 MAY 2005

OPINION

Defendants have filed an appeal from our order of March 7,

2005, wherein we granted in part and denied in part defendants’

motion for post-trial relief. Pursuant to Pa.R.A.P No. 1925(a), we

herewith file this brief statement in the form of an opinion of the rea-

sons for our order.

Following the filling of the appeal, plaintiffs were directed to

file a concise statement of the matters complained of. To the extent

that we can comprehend the matters being raised by defendants, we

shall try to deal with them. TO the extent that the concise statement

is too vague to allow the court to identify the issues raised on appeal, -

the statement is the functional equivalent of no statement at all and

the issues which are not clearly raised and waived.

Commonwealth v. Seibert, 799 A.2d 54 (Pa.Super.2002);

Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super.2001) (When

trial court has to ‘guess’ what issues an appellant is appealing, the

28

concise statement is insufficient to preserve the issues for appeal.)

"{W]hen an appellant fails co address the issues pursued on appeal in a

concise manner, the trial court is clear impeded in its preparation of

legal analysis. In. re Estate of Daubert, 757 A.2d 962 (Pa.Super.2000)."

Caln Nether Co., L.P.v. Board of Supervisors, Thornbury Township 840

A.2d 484, 490 (Pa.Cmwlth. 2004). We think that the Superior Court

could easily review defendants’ concise statement and find all appellate

issues to have all been waived.

Nevertheless, we will attempt to respond to as many of the (9)

issues set forth in defendants’ concise statement as we can understand.

First and second, defendants argue that we abused our discre-

tion in consolidating these cases for trial. “Actions pending in a county

which involve common questions of law or fact may be ordered consol-

idated by the court or in the motion of any party. Pa. R-C.P. No. 213(a).

The decision to consolidate, however, rests within the discretion of the

trial court and is not a mater of right. Id". Feldman v. Lafayette Green

Condominium Association,806 A.2d 497, 502 (Pa.Cmwlth 2002). The

two cases here in question clearly fit within the confines of Pa.R.C.P.

No. 213(a) and the defendants have demonstrated no prejudice from

the trial of thsese two actions together.

Defendants urge as error our refusal to grant another continu-

ance of trial in order to permit chem to retain counsel. Defendants had

more than sufficient time to retain consul had they chosen to do so.

Defendants waited until the very eve of trial and their request for a fur-

ther continuance was merely a ploy to avoid trial.

Defendants argue that we erred by responding in writing to the

jury's written question. The record does not reflect the actions of which

defendants complain, and, in any event, this alleged error was not raised

by post-trial- motion and is, therefore, waived. Defendants have not

29

_ Identified what question was asked, what answer was given, whether

defendants objected to the alleged written answer at the time of trial

and how, if at all, such alleged error was prejudicial.

Defendants argue that we erred in failing to declare 68.

PS._ 3315 “unlawful and unconstitutional." This issue was not raised

by defendants in cheir post-trial motion and is, therefore, waived.

Defendants assert that we erred by not molding the verdict

but we have not suggested the manner in which it should have been

molded nor the reason why it should have been molded. We are sat-

isfied that the verdict is based upon the evidence, and, therefore, our

failing to mold the verdict is no error. In addition, we were not

requested to mold the verdict, nor were this issue raised in defendants’

motion for post trial relief.

Defendants argue that we used "contradictory standards of

treatment” for him because he is "an immigrant citizen of Asiatic-

Indian-origin.” Defendants offer no evidence in support of their con-

tention that such contradictory standards have ever been applied nor

were this issue ever previously raised. Defendants claim that we

abused their discretion in failing to sustain their preliminary objec-

tions but offer no argument as to why the preliminary objections mer-

itorious. Defendants also claim that we erred by ascertaining that the

plaintiff had cooperated during discovery. This claim by defendants it

as much a mystery to the Court as is most of defendants’ statements.

Again, any such claim has been waived.

Defendants claim that we erred in failing to strike the judg-

ment that plaintiff prematurely entered against them. But we ruled in

favor of defendants that issue and did strike che judgment which has

been improperly entered.

Finally, defendants claim that we erred by ruling that the con-

dominium declaration was binding upon defendants from the time

they became quotable owners of the premises. Contrary

30

to defendants’ assertion, defendants had the opportunity to object to

our instruction to the jury on this issue and failed to do so. In any

event, we are satisfied that the instructions were correct.

For the foregoing reasons we entered the order form which

this appeal has been taken.

BY THE COURT

Date: May 1, 2005

31

APPENDIX D

LEXSTAT 68 PA.C.S.A. 3315

PENNSYLVANIA STATUES, ANNOTATED BY LEXISNEXIS®

*THIS DOCUMENT IS CURRENT THROUGH ACT 19 OF THE REG

SESSION AND ACT 1 OF THE SP. LEGISLATIVE SESSION*

***APRIL 5, 2007 ANNOTATION SERVICE ***

PENNSYLVANIA CONSOLIDATED STATUES

TITLE 68. REAL AND PERSONAL PROPERTY

PART II REAL PROPERTY

SUBPART B. CONDOMINIUMS

CHAPTER 33. MANAGEMENT OF THE CONDOMINIUM

68 Pa. C.S. & 3315 (2006)

3315. Lien for assessments

(a) GENERAL REULE- The association has a lien on a unit for any assessment

levied against that unit or fines imposed against its unit owner from the time the

assessment or fine becomes due. The association's lien may be foreclosed in like

manner as a mortgage on real estate. A judicial or other sale of the unit in execu-

tion of a common element lien or any other lien shall not affect rhe lien of mort-

gage thereon, except the mortgage for which the sale is being held, if the mort-

gage is or shall be prior to all other liens upon the same property except those

liens identified in 42 Pa. C.S. # 8152 (a) (relating to judicial sale as affecting lien

of mortgage) and liens for condominium assessments created under this section.

Unless the declaration otherwise provides, fees, chargers, late charges, fines and

interest charged pursuant to section 3302(a)(10), (11) and (12) (relating to pow-

ers of unit owners association) and reasonable costs and expenses of the associa-

tion, including legal fees, incurred in connection with collection of any sums due

the association by the unit owner or enforcement of the provisions of the decla-

ration, bylaws, rules or regulations against the unit owner are enforceable as

assessments under this section. If an assessment is payable in installments and

one or more installments is not paid when due, the entire outstanding balance of

the assessment becomes effective as a lien from the due date of the delinquent

installment.

32

APPENDIX D

CONSTITUTIONAL AMENDMENTS

AMENDMENT V:

No person shell. ..be deprived of life, liberty, or property, without due

process of law, nor shall private property be taken for public use, with-

Out just compensation.

AMENDMENT VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

AMENDMENT XIV:

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty or proper-

ty, without due process of law; nor deny to any person its jurisdiction

the equal protection of the laws.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2007

AMRIT LAL, Ph.D.

Petitioner

vs.

GOSHEN VALLEY ONE (I) &

GOSHEN VALLEY TWO (Il)

CONDOMINIUM ASSOCIATIONS,

Respondents

PROOF OF SERVICE

Thomas R. Kellogg, Esquire, a member of the Bar of the Supreme Court of the

United States, hereby certifics that on the 29th day of June, 2007, he caused to

be served by United States first class mail, postage prepaid, three copies of the

Petition for a Writ of Certiorari in this matter co the attorney for Respondent at

the address set forth below:

Glenn M. Ross, Esq.

706 Ridge Avenue

Lafayette Hill, PA 19444

(610) 828-9454

This satisfies the requirements of Supreme Court Rule 29 (3)

Thomas R. Kellogg, Esq.

Strong Stevens & Wyant

1250 W. Germantown Pike,

Suite 300

Plymouth Meeting, PA 19462-2444