           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                            :
                                                :
                v.                              :   No. 67 C.D. 2019
                                                :   Submitted: January 31, 2020
Agnes Frempong and                              :
Steve Frempong,                                 :
                              Appellants        :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                FILED: August 27, 2020


       Agnes Frempong and Steve Frempong (collectively, Appellants) appeal from
the order of the Court of Common Pleas of Philadelphia County (trial court), dated
December 13, 2018. In its order, the trial court denied Appellants’ motion to set
aside the sheriff’s sale of their property conducted pursuant to what is commonly
referred to as the Municipal Claims and Tax Liens Act (MCTLA).1 For the
following reasons, we will affirm the trial court’s order.
       On June 14, 2016, the City of Philadelphia (City) filed, pursuant to
Section 31.2 of the MCTLA,2 an amended tax petition for unpaid real estate taxes

       1
           Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
       2
         Added by Section 1 of the Act of March 15, 1956, P.L. (1955) 1274, 53 P.S. § 7283.
Section 31.2 of the MCTLA provides, in relevant part:
                     (a) In addition to the remedies prescribed in sections 28, 31
             and 31.1 of this act, in cities of the first class, whenever a claimant
             has filed its tax or municipal claim in accordance with the
             requirements of this act, it may file its petition in the court in which
             the proceeding is pending, setting forth the facts necessary to show
             the right to sell [the property subject to the claim], . . . and thereupon
             the court shall grant a rule upon all parties thus shown to be
             interested, to appear and show cause why a decree should not be
             made that the property be sold, freed and cleared of their respective
             claims, mortgages, ground rents, charges and estates. If upon a
             hearing, the court is satisfied that service had been made of the rule
             upon the parties respondent in the manner provided in this act for
             the service of writs of scire facias to obtain judgments upon tax and
             municipal claims, and that contemporaneously with the service of
             the rule on the parties respondent notice of the rule has been
             published by the claimant in at least one newspaper of general
             circulation in the county, and in a legal periodical published therein,
             if any, and that the facts stated in the petition be true, it shall order
             and decree that the property be sold at a subsequent sheriff’s sale at
             a time to be fixed thereafter by the claimant, clear of all claims, liens,
             mortgages, ground rents, charges and estates, to the highest bidder
             at such sale . . . .
                     ....
                     (e) Upon the delivery by the sheriff of a deed for any
             property sold under the provisions of this section, the judgment upon
             which such sale was had shall thereupon and forever thereafter be
             final and conclusive, and the validity thereof shall not be questioned
             for any cause whatsoever.
       Section 39.3 of the MCTLA, added by Section 4 of the Act of December 14, 1992,
P.L. 859, 53 P.S. § 7193.3, is also relevant to our analysis. It provides:
                     All parties wishing to contest the validity of any sale
             conducted pursuant to section 31.2 of [the MCTLA], including the
             sufficiency of any notice, and any party claiming to have an interest
             in the premises which was not discharged by the sale must file a
             petition seeking to overturn the sale or to establish the interest within
             three months of the acknowledgment of the deed to the premises by
             the sheriff.


                                                 2
on the property located at 1333 East Mount Pleasant Avenue in Philadelphia,
Pennsylvania (Property), naming only Agnes Frempong as defendant. That same
day, in response to the City’s petition and as required by Section 31.2, the trial court
issued a rule requiring Ms. Frempong to show cause why the Property should not be
sold for delinquent taxes (Rule). After granting several continuances spanning
nearly a year, the trial court held the hearing on the Rule on June 27, 2017. The next
day, the trial court issued an order granting the City’s petition and decreeing that the
Property be sold at sheriff’s sale (Decree). (See Supplemental Reproduced Record
(S.R.R.) at 46b.) After the trial court issued the Decree, but before the sheriff’s sale
occurred, Steve Frempong sought to intervene in this matter.3
       Upon Mr. Frempong’s intervention, Appellants commenced a series of
challenges to the City’s attempt to have the Property sold. First, on July 3, 2017,
Ms. Frempong filed a motion for reconsideration of the Decree (Motion for
Reconsideration). (See O.R., Item No. 13.) In the Motion for Reconsideration,
Ms. Frempong claimed that the Decree was invalid because the City failed to adhere
to the MCTLA’s requirements for service of the Rule. Specifically, Ms. Frempong
alleged that the City deliberately served the Rule on her at an incorrect address, failed
to produce documentary evidence in support of its affidavit of service, and failed to
serve Mr. Frempong as an interested party. (See id. at 3-5, 9.) Ms. Frempong also
argued that the trial court lacked jurisdiction to enter the Decree because of a pending

       3
          Mr. Frempong filed a petition to intervene on July 3, 2017, which the trial court granted
on August 9, 2017 (Intervention Order). (See Original Record (O.R.), Item No. 18.) On
September 18, 2017, pursuant to the City’s motion for reconsideration, the trial court struck the
Intervention Order. (See O.R., Item No. 29.) Thus, Mr. Frempong was no longer a party to this
litigation on October 12, 2018—the date Ms. Frempong filed the motion that gave rise to the order
now on appeal. The City has not, however, raised any argument that Mr. Frempong is not a proper
participant in this appeal.


                                                3
petition to appeal the underlying tax liens nunc pro tunc. (See id. at 5.) She also
alleged that the trial court had intentionally and/or fraudulently changed the date of
the Rule hearing without notice to her.4 (See id.) On August 2, 2017, the trial court
denied the Motion for Reconsideration.
       Second, on August 24, 2017, Appellants filed a “Petition to Strike [the
Decree] for Fatal Defects and Irregularities Apparent on the Face of the Record or
to Open Default Judgment and Let into Defense [(Motion to Strike).]” (Reproduced
Record (R.R.) at 43a.)        In the Motion to Strike, Appellants raised arguments
substantially identical to the arguments they raised in the Motion for
Reconsideration. In addition, they argued that the Decree was defective because the
trial court failed to satisfy itself at the hearing, as required by Section 31.2(a) of the
MCTLA, that the City had published the Rule in a newspaper and that the facts in
the City’s petition were true. (Id. at 45a.) Appellants also argued that the City’s
petition—on which the Decree was based—was formally defective because it did
not include exhibits to which the petition referred and because it lacked specificity.
(Id. at 46a-47a.) Finally, Appellants purported to challenge the validity of the tax
liens underlying the City’s petition. (Id. at 47a.) On December 15, 2017, following
a hearing, the trial court denied the Motion to Strike. On January 16, 2018,
Appellants filed an appeal of the trial court’s orders issuing the Decree, denying the
Motion to Strike, and striking the Intervention Order. Thereafter, the trial court
issued a Pa. R.A.P. 1925(a) opinion on February 26, 2018.                    By order dated
March 27, 2018, docketed at Frempong v. City of Philadelphia, No. 96 C.D. 2018


       4
         Appellants allege that Ms. Frempong was not present at the Rule hearing due to the
alleged failure of proper service, but that Mr. Frempong happened to be in court that day for an
unrelated matter and was incidentally able to participate in the Rule hearing. (Appellants’ Br.
at 5-6.)

                                               4
(Frempong I), we dismissed that appeal for Appellants’ failure to comply with our
earlier order directing them to pay the filing fee.
       On April 18, 2018, the Property was sold at a sheriff’s sale pursuant to the
Decree (Sale). Following Mr. Frempong’s unsuccessful attempt to redeem the
Property, on September 24, 2018, the sheriff acknowledged the deed conveying
the Property to the purchaser at the Sale.         Appellants then mounted what is
essentially their third challenge to the validity of the Decree and the resulting Sale
when Ms. Frempong filed a “Motion to Set Aside or Vacate [the Sale]” on
October 12, 2018 (Motion to Set Aside), which is the subject of this appeal.
(R.R. at 92a.) In the Motion to Set Aside, Ms. Frempong did not challenge the
conduct of the Sale itself, but argued only that “the [o]rder [on] which the Sale was
based [(i.e., the Decree)] . . . was obtained by fraud and various irregularities.”
(Id. at 95a.) As to the nature of the alleged irregularities, Ms. Frempong raised issues
identical to those in the Motion for Reconsideration and Motion to Strike. (See id.)
       On December 13, 2018, following the fifth hearing it conducted in this matter,
the trial court denied the Motion to Set Aside. After Appellants filed the instant
appeal of that order, the trial court issued a Pa. R.A.P. 1925(a) opinion. In the
opinion, the trial court simply explained: “On Appeal, [Appellants] raise the same
claims of error regarding the validity of the . . . Decree as they did in their prior . . .
appea1 [in Frempong I].           As such, the trial court incorporates its prior
February 26, 2018 [Pa. R.A.P. 1925(a)] Opinion as fully stated herein . . . .”
(Appellants’ Br., App. 2 at 2 (citation omitted).)




                                            5
       On appeal,5 Appellants essentially argue that the trial court erred in denying
the Motion to Set Aside. The sole basis for their argument is their claim that the
Decree is invalid because of various alleged procedural irregularities. In support of
that claim, Appellants identify the same alleged defects in the Decree that they
articulated in Frempong I—i.e., improper service or proof of service,6 failure to
publish the Rule, absence of evidence supporting the facts in the City’s petition, and
fraudulent rescheduling of the Rule hearing. Appellants then argue that because “the
underlying Decree . . . is invalid and a nullity[,] the . . . Sale is void ab initio and
should be vacated or set aside.” (Appellants’ Br. at 8.) In response, the City broadly
argues that some of the procedural requirements Appellants cite do not apply in this
context, and that those that do apply were satisfied before the trial court granted the
Decree. The City also emphasizes that the trial court has examined the issue of
service on several prior occasions (including in connection with the Motion for
Reconsideration and Motion to Strike) and upheld the Decree. The City further
claims that Appellants’ continued participation in this litigation represents a waiver
of the service issue.
       Before turning to the merits of Appellants’ arguments, we note the trial court’s
observation that Appellants have essentially sought to litigate the same claims—

       5
         “[O]ur scope of review in tax sale cases is limited to determining whether the trial court
abused its discretion, rendered a decision with a lack of supporting evidence, or clearly erred as a
matter of law.” Casaday v. Clearfield Cty. Tax Claim Bureau, 627 A.2d 257, 258 (Pa.
Cmwlth. 1993).
       6
          We previously have noted our confusion at the fact that, “contrary to the plain language
of Section 31.2(a) [(of the MCTLA)], Section 39.2 of the [MCTLA], added by Section 4 of the
Act of December 14, 1992, P.L. 859, 53 P.S. § 7193.2, provides that notice of a rule to show cause
issued pursuant to Section 31.2 is to be made by posting and first class mail to all interested
parties.” City of Phila. v. Manu, 76 A.3d 601, 605 (Pa. Cmwlth. 2013). We will not address any
conflict between these provisions, however, because we will resolve this matter on other grounds,
as we discuss below.

                                                 6
relating to the validity of the Decree—on a number of different occasions. The
doctrine of res judicata—which includes the “related, yet distinct” concepts of
technical res judicata (or claim preclusion) and collateral estoppel (or issue
preclusion)—exists to prevent the unfairness and inefficiency of needlessly
duplicative litigation. Robinson v. Fye, 192 A.3d 1225, 1231 (Pa. Cmwlth. 2018);
see Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 902 A.2d 366, 376
(Pa. 2006) (“[Res judicata] protect[s] the judiciary from the . . . inefficiency and
confusion that re-litigation of a claim would breed.”), cert. denied, 549 U.S. 1054
(2006).   “Res judicata, or claim preclusion, applies only when there exists a
coalescence of four factors: (1) identity of the thing sued upon or for; (2) identity of
the causes of action; (3) identity of the persons or parties to the action; and
(4) identity of the quality or capacity of the parties suing or being sued.” Robinson,
192 A.3d at 1231 (quoting J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa.
Cmwlth. 2002), appeal denied, 818 A.2d 506 (Pa. 2003)). When technical res
judicata applies, “[a]ny final, valid judgment on the merits by a court of competent
jurisdiction precludes any future suit between the parties or their privies on the same
cause of action.” Id. (quoting Balent v. City of Wilkes-Barre, 669 A.2d 309, 313
(Pa. 1995)).
      When determining whether causes of action are identical for res judicata
purposes, we look to, “inter alia, the similarity of the acts complained of, the demand
for recovery, and the facts alleged.” Tobias v. Halifax Twp., 28 A.3d 223, 227
(Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012). This comparison is not
mechanical, and “we keep in mind that a party cannot avoid res judicata simply by
varying the legal theory for relief or by recasting the nomenclature for the relief




                                           7
requested.” Id. “Generally, a cause of action will be considered identical when the
subject matter and the ultimate issues are the same in both proceedings.” Id. at 226.
       Applying these principles to the instant matter, we conclude that Appellants’
claims, as set forth in the Motion to Set Aside, are barred by the doctrine of res
judicata.    Appellants now allege facts that are identical to those at issue in
Frempong I—including the City’s service of Appellants, the trial court’s scheduling
of the hearing, and the City’s failure to publish the Rule. As Appellants make clear,
their complaint is essentially that the Decree—not the Sale per se—is void because
of the irregularities they allege. That complaint is identical to the arguments they
raised before the trial court in the Motion for Reconsideration and Motion to Strike
and was also the only issue on appeal when they sought review of the trial court’s
earlier orders in Frempong I. Thus, the instant cause of action is identical with the
cause of action in Frempong I because both matters involve the same subject matter
(the Decree) and ultimate issues (whether the Decree was valid). See Tobias,
28 A.3d at 226. Although Appellants now attack the validity of the Decree indirectly
by challenging the Sale, simply renaming their challenge to the Decree or relying on
a different statutory provision does not permit them a second opportunity to attack
the Decree.7 See id. at 227. Appellants were parties to Frempong I in the same


       7
         Appellants appear to suggest that Section 39.3 of the MCTLA authorizes their challenge
to the Sale as a proceeding and/or cause of action separate from the Motion for Reconsideration
and Motion to Strike (which challenged the Decree, not the Sale). (See Appellants’ Br. at 28-29.)
Section 39.3 requires parties to bring any challenge to the validity of a sale within three months of
the sheriff’s acknowledgement of the deed, whereas Section 31.2(e) of the MCTLA requires any
challenge to the judgment upon which the sale was based to commence before delivery of the deed.
While these sections appear to contemplate challenges to separate steps in the tax collection
process that occur according to different time limits, no provision in the MCTLA allows a party
two opportunities to challenge the exact same part of the process (i.e., the Decree), as Appellants
attempt to do here. We could imagine a party relying on Section 39.3 to challenge the conduct of


                                                 8
capacities in which they participate in this matter. Because technical res judicata,
therefore, applies, the trial court did not err in denying the Motion to Set Aside
(despite that it did so based on a different rationale than we apply here).
Accordingly, we will affirm the trial court’s order, albeit on alternate grounds.




                                                  P. KEVIN BROBSON, Judge




the sale separately from the decree authorizing the sale, but Appellants raise issues with respect to
the Decree only, just as they did in Frempong I.
        Regardless, even if this proceeding—under the Motion to Set Aside—could be properly
characterized as its own cause of action separate from that in Frempong I, then collateral estoppel
would apply, and we would reach the same result. See Robinson, 192 A.3d at 1231-32 (holding
collateral estoppel applies when present issues were “necessary to [a] final judgment on the merits”
and same party had “a full and fair opportunity to litigate the issue” in prior litigation of separate
cause of action).

                                                  9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


City of Philadelphia                  :
                                      :
            v.                        :   No. 67 C.D. 2019
                                      :
Agnes Frempong and                    :
Steve Frempong,                       :
                        Appellants    :



                                 ORDER


      AND NOW, this 27th day of August, 2020, the order of the Court of Common
Pleas of Philadelphia County, dated December 13, 2018, is AFFIRMED.




                                      P. KEVIN BROBSON, Judge
