                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Valley Forge Sewer Authority                  :
                                              :
               v.                             :
                                              :
Brian Hipwell, Chris Hipwell,                 :
David Tober and Wanda Warner,                 :    No. 1924 C.D. 2013
                        Appellants            :    Submitted: January 30, 2015


BEFORE:        HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE ANNE E. COVEY, Judge


OPINION BY
JUDGE COVEY                                        FILED: July 31, 2015

               Brian Hipwell, Chris Hipwell, David Tober and Wanda Warner
(collectively, Hipwell) appeal from the Chester County Common Pleas Court’s (trial
court) October 8, 2013 order striking and dismissing Hipwell’s Affidavit of Defense
to the Valley Forge Sewer Authority’s (Authority) Writ of Scire Facias Sur Municipal
Claim,1 and entering judgment in favor of the Authority for its municipal claim
together with interest and attorney’s fees. There are two issues for this Court’s
review: (1) whether the trial court erred in finding that the municipal claim filed
against Hipwell’s property was valid under what is commonly referred to as the
Municipal Claims and Tax Liens Act (MCTLA);2 and (2) whether the trial court erred
when it awarded the Authority attorney’s fees and interest. After review, we affirm.
               On or about May 24, 2006, Hipwell became the owner of property
located at 133 Orchard Lane, Phoenixville, Pennsylvania (Property). The Property
       1
           “A writ of scire facias sur municipal claim is a writ used to enforce payment of a
municipal claim out of the real estate upon which such claim is a lien.” Fox Chapel Sanitary Auth.
v. Abbott, 384 A.2d 1012, 1013 n.1 (Pa. Cmwlth. 1978).
       2
         Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
had been connected to the Authority’s sanitary sewer system since 1977, and the
Authority’s records reflected that the Property was improved as a single-family
dwelling. Section 165-16 of the Authority’s Code of Rules and Regulations (Code)
imposes a $75.00 quarterly sewer fee per equivalent dwelling unit (EDU). Since
acquiring the Property, Hipwell received quarterly bills from the Authority and paid
the $75.00. Although the Authority issued regular quarterly $75.00 invoices based
upon its understanding that the Property was a one-unit dwelling, in reality, the
Property had been a multi-family dwelling unit for many years before Hipwell’s
acquisition. In July 2009, the Authority investigated a sewage smell complaint at the
Property and discovered for the first time that the Property was improved as a multi-
family dwelling containing four EDUs. Until that time, Hipwell did not know the
Authority was unaware that the Property contained four EDUs, and never concealed
that fact from the Authority.
             By letter dated September 17, 2009, the Authority informed Hipwell that
it changed its records to accurately reflect that the Property was a multi-family
dwelling, and requested an additional $2,925.00 (Amount in Controversy) by
September 30, 2009 for the three EDUs not billed in the prior invoices. Hipwell
disputed the Amount in Controversy, asserting that since purchasing the Property, he
had paid the quarterly invoices in full. Beginning October 1, 2009, Hipwell paid
quarterly $300.00 invoices reflecting $75.00 charges for all four EDUs. By March
23, 2010 letter, the Authority notified Hipwell that it intended to forward the unpaid
Amount in Controversy to its Solicitor for the filing of a municipal lien and other
collection efforts in the amount of $3,108.82. On May 4, 2010, a municipal claim
was filed against the Property for the Amount in Controversy, along with associated
fees and costs in the amount of $3,469.29. On November 10, 2010, the Authority




                                          2
filed a Writ of Scire Facias Sur Municipal Claim. 3 Hipwell filed an Affidavit of
Defense on November 29, 2010.
              The matter was submitted to the trial court based upon the parties’ Joint
Stipulations of Fact (JSOF) and trial briefs. On October 8, 2013, the trial court issued
its decision striking and dismissing Hipwell’s Affidavit of Defense, and entering
judgment in favor of the Authority’s Writ of Scire Facias Sur Municipal Claim,
together with interest and attorney’s fees. Relying on the case of West Penn Power
Co. v. Nationwide Mutual Insurance Co., 228 A.2d 218 (Pa. Super. 1967), the trial
court held that the Authority was entitled to payment for the sewer service Hipwell
received. Hipwell appealed to this Court.4
              Hipwell first argues that the trial court failed to give proper weight to the
JSOF. Hipwell further contends that Nationwide is not determinative of the instant
matter, and that the trial court was required to consider his valid defenses.




       3
              A property owner that is aggrieved by a municipal lien that is not
              defective on its face may obtain an adjudication as to the validity of
              the lien by serving notice upon the claimant municipality to issue a
              writ of scire facias on the claim. A writ of scire facias to ascertain
              the amount due on a lien is ordinarily requested by a property owner
              to give him the opportunity to show why the lienholder should not be
              allowed to execute on his property. After the lienholder issues the
              writ, the owner may file an affidavit raising his defenses to the lien.
              Proper defenses to the writ include actual payment of taxes, a
              defective claim or lien, fraud, or lack of process or notice. In a sci[re]
              fa[cias] proceeding, the trial court ultimately determines the
              appropriate amount of the lien, including any interest or costs.
Radhames v. Tax Review Bd., 994 A.2d 1170, 1178 (Pa. Cmwlth. 2010) (citations and footnote
omitted).
       4
          “This Court’s scope of review of a trial court’s order disposing of a petition to strike a
municipal claim is limited to a determination of whether the court abused its discretion or
committed an error of law or whether constitutional rights were violated.” Penn Twp. v. Hanover
Foods Corp., 847 A.2d 219, 222 n.10 (Pa. Cmwlth. 2004).
                                                  3
            In Nationwide, West Penn Power Company (West Penn) brought an
action in assumpsit for electric service supplied to Nationwide Insurance Company
(Nationwide Insurance). Due to a billing error, Nationwide Insurance was billed for
less than the amount of service actually supplied. Although the bills had been paid,
West Penn sought the difference between the amount that had been billed and paid,
and the amount that should have been billed and paid. In new matter, Nationwide
Insurance averred facts supporting the defenses of accord and satisfaction, payment,
estoppel and breach of contract. West Penn filed preliminary objections

            alleging that the only issue that the court could consider was
            the amount or quantity of service rendered by the public
            utility and whether or not payment for said service had been
            made in accordance with the effective tariff of the public
            utility as filed with the Public Utility Commission. The
            court below sustained the motions to strike and the
            demurrer and permitted the appellant twenty days to file
            [an] amendment to the new matter.

Id. at 219. Thereafter, Nationwide Insurance filed an amended answer in which it
restated portions of an earlier answer which had been stricken pursuant to the trial
court’s previous order. The trial court concluded that

            [t]he only issue presented by the pleadings relates to the
            quantity of electricity . . . served by [West Penn] to
            [Nationwide Insurance] during the 31[-]month period. The
            tariff or rate is established by law. The amount paid during
            the 31[-]month period is admitted. The alleged additional
            service above that originally billed by [West Penn] is
            denied by [Nationwide Insurance]. This creates the issue.

Id. at 219-20 (quotation marks omitted). On review, the Superior Court stated:

            We agree with the court below that the only issue is
            whether the appellant has paid in full for electricity
            furnished it by the utility. A utility can only charge the
            customer the lawful rate as tariffed. It cannot make a
            special contract with the customer. There can be no favored
            treatment for a customer. It cannot demand or receive

                                          4
             directly or indirectly a greater or lesser rate than specified in
             its tariff.
Id. at 220. The Nationwide Court further explained:
             The statement of an account does not work an estoppel. It
             is prima facie an accurate showing of the standing of the
             parties as to a particular matter, but it has never been held to
             be so conclusive that one is bound to an account shown to
             be unjust or fraudulent[.] . . . If the meter showed that the
             defendant consumed the amount of electricity now alleged
             by the plaintiff the latter’s right is unquestionable . . . [.]

Id. (quoting Allegheny Cnty. v. Thomas, 31 Pa. Super. 102, 103 (1906)).
             Hipwell acknowledges the Nationwide holding, but contends that it must
not be read to preclude his right to assert valid defenses to the lien. Hipwell relies on
West Penn Power Co. v. Piatt, 592 A.2d 1306 (Pa. Super. 1991), wherein our
Superior Court clarified its earlier holding in Nationwide, explaining:

             In Nationwide . . . West Penn sought to recover funds lost
             as a result of its underbilling of a customer, Nationwide
             Insurance . . . . In its defense, Nationwide Insurance
             averred facts to constitute defenses of accord and
             satisfaction, payment, estoppel and breach of contract. The
             trial court ruled that the only issue was whether Nationwide
             Insurance had paid in full for the electricity furnished by
             West Penn. On appeal, this court agreed that the only issue
             properly raised concerned whether Nationwide Insurance
             had paid in full for the electricity. We also held that
             Nationwide Insurance had failed to sustain its defenses.
             In so holding, we noted that a utility can only charge the
             customer the lawful rate as tariffed, and cannot provide
             customers with preferential treatment. However, we went
             on to evaluate the defenses raised by Nationwide Insurance,
             and rejected them because they were without merit on the
             facts alleged. The important point to be drawn from the
             analysis in Nationwide is that this Court did not suggest that
             there is a general prohibition against the assertion of
             defenses to a public utility’s attempt to recover amounts it
             undercharged a customer. Furthermore, our examination of
             Nationwide indicates that no such prohibition exists. The
             Nationwide court merely held that a utility is entitled to

                                            5
              recover amounts it undercharged a customer, at least when
              that customer failed to allege sufficient facts in its defense
              to raise a disputed issue of material fact or show that the
              utility is not entitled to judgment as a matter of law.
              Nationwide leaves open the question of whether a utility is
              entitled to recover amounts it undercharged a customer
              when that customer asserts a meritorious defense. Thus, the
              trial court could properly have granted appellee summary
              judgment and judgment on the pleadings based on
              Nationwide only if the pleadings indicated that appellee was
              entitled to judgment as a matter of law on appellant’s
              counterclaim . . . and the counterclaim was clearly and
              without a doubt meritless.

Piatt, 592 A.2d at 1308-09 (footnotes omitted; emphasis added).
              Hipwell asserts contractual defenses against the lien.              Specifically,
Hipwell contends that he had a contractual relationship with the Authority, whereby,
the Authority provided him a service and he paid for the service on a quarterly basis.
According to Hipwell, “[w]hen payment was rendered and accepted by [the
Authority], a quarterly contract was completed.” Hipwell Br. at 13. Because all
invoices were paid, Hipwell argues that there could be no delinquency. Hipwell
further maintains that it would be unreasonable to permit the Authority to
retroactively bill for additional amounts due to the Authority’s unilateral mistake.5




       5
         “Courts may take judicial notice of local government ordinances.” In re Appeal of Moyer,
978 A.2d 405, 407 n.2 (Pa. Cmwlth. 2009); see also 42 Pa.C.S. § 6107(a) (“[t]he ordinances of
municipal corporations of this Commonwealth shall be judicially noticed.”). Although it does not
appear to be part of the record, this Court takes judicial notice of Section 165-17 of the Code.
Section 165-17 of the Code states:
              If the use or classification of any improved property should change,
              the owner must notify the Authority in writing within 15 days after
              the occupancy occurs or the occupancy permit is issued. A full month
              of service will be charged if the use or classification has changed after
              the 10th day of the month.
The Authority believed that the unit was a single-family unit because it had been so advised by a
prior owner and was never notified of any change.
                                               6
                   Section 5607(d)(9) of the Municipality Authorities Act (Act) permits the
Authority

                   [t]o fix, alter, charge and collect rates and other charges in
                   the area served by its facilities at reasonable and uniform
                   rates to be determined exclusively by it for the purpose of
                   providing for the payment of the expenses of the authority,
                   the construction, improvement, repair, maintenance and
                   operation of its facilities and properties and, in the case of
                   an authority created for the purpose of making business
                   improvements or providing administrative services, a
                   charge for such services which is to be based on actual
                   benefits and which may be measured on, among other
                   things, gross sales or gross or net profits, the payment of the
                   principal of and interest on its obligations and to fulfill the
                   terms and provisions of any agreements made with the
                   purchasers or holders of any such obligations, or with a
                   municipality and to determine by itself exclusively the
                   services and improvements required to provide adequate,
                   safe and reasonable service, including extensions thereof, in
                   the areas served.

53 Pa.C.S. § 5607(d)(9). Sections 165-15 and 165-16 of the Code6 contain the
“reasonable and uniform rates” mandated by the Act. Section 165-15 of the Code
states:

                   There is hereby imposed upon and shall be payable by each
                   owner of each property connected to or served by the sewer
                   system a sewer use charge, payable quarterly as hereinafter
                   provided, for the use, whether of the sewer system based on
                   the schedule of use classifications and rates, or charges
                   hereinafter set forth. The Authority utilizes a flat-rate
                   billing system. The flat-rate system must be utilized unless
                   specific permission to utilize another method of calculation
                   is granted by this chapter.

Id. Further, Section 165-16 of the Code imposes upon the owner of each property
served by the sewer system a $75.00 fee per EDU per quarter.


          6
              The Code may be found online at: http://ecode360.com/VA1573?needHash=true


                                                  7
               Here, the trial court determined, and the parties agreed, that a contractual
relationship exists between Hipwell and the Authority. Although it is true that “a
unilateral mistake in the formation of a contract may bar the mistaken party from
relief, thus preserving the benefit of the bargain for the nonmistaken party,” we
discern no such mistake. W.F. Meyers Co., Inc. v. Stoddard, 526 A.2d 446, 449 (Pa.
Super. 1987).
               The flaw in Hipwell’s argument is the lack of evidentiary support for his
purported “contract terms.” Hipwell contends that he agreed to pay $75.00 per
quarter for sewer service (regardless of the number of EDUs), and those terms are
binding on the parties.7 Hipwell offered no evidence to demonstrate written contract
terms inconsistent with the Code and, even if he had, the terms would be ineffective.
Our Supreme Court in Scranton Electric Co. v. School District of Avoca Borough, 37




       7
        Hipwell mischaracterizes the JSOF as stating that “Appellants contracted with Appellee for
sewer services, to be billed at $75.00 per quarter[,]” and “Appellee supplied sewer services to the
Appellants for the cost of $75.00 per quarter.” Hipwell Br. at 21, 17 (emphasis omitted). Rather,
the JSOF states:

               5. Section 165-16 of the Code provides for a quarterly sewer rental
               fee of $75 per [EDU] based on the amount of EDUs assigned to the
               use of the Property. For residential uses, §165-5 of the Code assigns a
               single EDU per dwelling unit.

               ....

               7. For each quarter from the beginning of Hipwell’s ownership of the
               Property up to the invoice issued on October 1, 2009, Authority
               issued regular quarterly invoices to Hipwell for the Property’s sewer
               rental fees in the amount of $75 based on the Authority’s
               understanding that the Property was a one unit residential dwelling or
               one (1) EDU[.]

R.R. at 120.

                                                 8
A.2d 725 (Pa. Super. 1944), recognized:

               Contracts for the service of utilities are presumed to have
               been made subject to the police power of the state[8] . . . and
               it is beyond the power of the contracting parties to fix rates
               or provide for service permanently. Plaintiff’s established
               rates apply to defendant the same as to other consumers
               notwithstanding the existence of any contract providing for
               a different rate or for free service. The principle has been
               definitely and repeatedly stated. The Public Service
               Company Law[9] and the Public Utility Law[10] supplant any
               agreement in so far as rates are involved between the
               consumer and the utility.

Id. at 727 (citations omitted).
               Pursuant to the Act and the Code, each Authority customer agrees that in
exchange for sewer service, that customer will pay a quarterly fee of $75.00 per
EDU. Those terms applied to Hipwell like every other customer in accordance with

       8
         We are aware that the services at issue were provided by a municipal authority as
authorized under the Act. However, this Court has stated:

               [T]he price charged for utility services having been made the subject
               of regulations by the state, individuals cannot, by contract, abridge the
               police powers of the Commonwealth which protect the general
               welfare and the public interest. See Lieper v. Baltimore [&] Phila[.]
               R[.R.] Co[.], . . . 105 A. 551 ([Pa.] 1918); Blythe [Twp.] Mun[.]
               Auth[.] v. P[a.] Pub[.] Util[.] Comm[‘]n, . . . 185 A.2d 628 ([Pa.
               Super.] 1962); Henshaw v. Fayette Gas Co., . . . 161 A. 896 ([Pa.
               Super.] 1932). While the cases just cited have to do with rates subject
               to regulation by the Public Utility Commission we see no reason why
               the principle should not apply in the case of municipal authorities
               whose rates are required by . . . the Municipality Authorities Act of
               1945 [Act of May 2, 1945, P.L. 382, as amended] to be reasonable
               and uniform and made subject to review by the common pleas courts
               which are given jurisdiction ‘to determine all such questions
               involving rates and service.’
Latrobe Mun. Auth. v. Youngstown Borough Mun. Auth., 456 A.2d 234, 239-40 (Pa. Cmwlth. 1983).
        9
          Act of July 26, 1913, P. L. 1374, formerly 66 P.S. §§ 1-1009 (repealed in its entirety by the
Act of May 28, 1937, P.L. 1053).
        10
           Act of May 28, 1937, P. L. 1053, formerly 66 P.S. §§ 1101-1503 (repealed by the Act of
July 1, 1978, P.L. 598).
                                                  9
the Act and the Code. Although the extent of Hipwell’s use (i.e., the number of
EDUs) of the sewer system was unknown to the Authority, there was no mistake in
formation of the contract.        The standard contract terms provided for a uniform
payment that could change based upon the number of EDUs at the location. In
accordance with the Code, Hipwell was bound to pay for the services he used and the
quarterly invoices did not alter that obligation. See Nationwide. Thus, Hipwell
cannot avoid liability based upon his contract defenses.11
              Hipwell also contends the Authority’s lien, imposed pursuant to the
MCTLA, is invalid because his account was not delinquent.
              Section 3(a)(1) of the MCTLA provides that:

              All municipal claims, municipal liens, taxes, tax claims and
              tax liens which may hereafter be lawfully imposed or
              assessed on any property in this Commonwealth, and all
              such claims heretofore lawfully imposed or assessed within
              six months before the passage of this act and not yet liened,
              in the manner and to the extent hereinafter set forth, shall be
              and they are hereby declared to be a lien on said property,
              together with all charges, expenses, and fees incurred in the
              collection of any delinquent account, including reasonable
              attorney fees under subsection (a.1), added thereto for
              failure to pay promptly; and municipal claims and
              municipal liens shall arise when lawfully imposed and
              assessed and shall have priority to and be fully paid and
              satisfied out of the proceeds of any judicial sale of said
              property, before any other obligation, judgment, claim, lien,
              or estate with which the said property may become charged,

        11
         Hipwell’s defense of accord and satisfaction cannot stand. As recognized by this Court in
Nationwide:

              There was no dispute during the period that the utility was accepting
              and endorsing the checks for the account as billed. A dispute is an
              essential element of accord and satisfaction. There was no dispute
              here over an unliquidated claim and the appellee is not estopped from
              correcting an error in billing.

Id. at 220.

                                               10
                or for which it may become liable, save and except only the
                costs of the sale and of the writ upon which it is made, and
                the taxes, tax claims and tax liens imposed or assessed upon
                said property.

53 P.S. § 7106(a)(1).
                Section 1 of the MCTLA defines “municipal claim” as:

                (1) the claim arising out of, or resulting from, a . . . service
                supplied . . . by a municipality, although the amount thereof
                be not at the time definitely ascertained by the authority
                authorized to determine the same, and a lien therefor be not
                filed, but becomes filable within the period and in the
                manner herein provided, (2) the claim filed to recover for .
                . . sewer rates . . . . A municipal claim shall be together with
                and shall include all penalties, interest, costs, fines, charges,
                expenses and fees, including reasonable attorney fees, as
                allowed by this act and all other applicable laws.

53 P.S. § 7101.
                The JSOF states that the Authority requested payment of $2,925.00 by
September 30, 2009 from Hipwell for unbilled sewer services it provided during the
three prior years for Hipwell’s three additional EDUs. Payment was not made.12
Accordingly, the trial court properly concluded that Hipwell’s account was
delinquent.13
                Relying on Monroe Township Municipal Authority v. Augsburger, 883
A.2d 718 (Pa. Cmwlth. 2005), Hipwell argues that his failure to pay while pursuing a
“reasonable contest” does not render his account delinquent.                  In Monroe, the
municipal authority appealed from a trial court order that struck legal fees from a

       12
           Section 165-18 of the Code states: “The sewer use charge imposed by the Authority shall
be payable quarterly in advance. Each calendar quarter shall be invoiced and payable within 30
days after the invoice date.” See 42 Pa.C.S. § 6107.
        13
           Notably, the MCTLA does not use the word “delinquent” when permitting the imposition
of the lien. Instead, it provides for liens of “municipal claims” that may be “lawfully imposed or
assessed on . . . property.” 53 P.S. § 7106(a)(1). The MCTLA references “delinquent account[s]”
only in the context of permitting recovery of attorney’s fees “incurred in the collection of any
delinquent account.” 53 P.S. § 7106(a.1).
                                               11
judgment arising out of the Augsburgers’ contest of the municipal authority’s claim
for sewer connection fees. The Augsburgers contended that “the distance from their
home to the sewer line exceeded the distance at which the applicable municipal
ordinance mandated connection.” Id. at 718. After the trial court concluded (and this
Court affirmed) that the Augsburgers were required to pay the connection fees, the
municipal authority entered judgment on its lien in the amount of the connection fees
plus interest and attorney’s fees. The Augsburgers refused to make any payment and
filed a petition to strike the interest and attorney’s fees from the judgment. In
affirming the trial court, this Court stated: “we agree with common pleas that failure
to pay while asserting a reasonable contest, such as that asserted by the Augsburgers,
to the validity of the lien does not render an account delinquent. Hence, attorney’s
fees are not justified in this case.” Id. at 719.
             Hipwell argues that the MCTLA permits a lien to be imposed only when
there is a delinquency. However, the MCTLA does not use the term delinquency
when describing the requirements for imposing a valid lien. Because a “reasonable
contest” only has relevancy when it comes to delinquency, the reasonable contest
argument cannot stand in this context. Indeed, in Monroe, the lien was determined to
be valid. Since the Monroe opinion only addresses delinquency in the context of
attorney’s fees, it does not support the invalidity of the Authority’s lien in the instant
matter. Simply put, the Authority provided sewer service, Hipwell accepted the
service, the Authority invoiced its fees for the service, and Hipwell did not timely pay
the fees.
             Finally, Hipwell challenges the trial court’s award of attorney’s fees.
Hipwell asserts that because his account was not delinquent, the MCTLA and the
attorney’s fees awarded thereunder are not applicable. We have already determined
that the trial court correctly found Hipwell’s account delinquent. Further, the trial


                                             12
court concluded that Hipwell’s contest of retroactive billing at standardized rates for
services the Authority provided and Hipwell used was not reasonable.
            This Court has held:

            Pursuant to [Section 20 of the MCTLA,] 53 P.S. § 7187,
            once the trial court rules on a municipal lien and a verdict is
            entered by the [C]ourt, the municipality shall be entitled to
            reasonable attorney fees pursuant to [Section 3 of the
            MCTLA] . . . . Reading both statutes in conjunction with
            one another, as required under the rules, once the trial court
            rules in favor of the municipality on its municipal lien, the
            challenge by the property owner is deemed to be meritless,
            therefore, entitling a municipality to an award of reasonable
            legal fees.

Borough of Walnutport v. Dennis, 13 A.3d 541, 547 (Pa. Cmwlth. 2010). In the
instant action, the trial court ruled in the Authority’s favor, finding Hipwell’s
challenge meritless and thus, properly imposed attorney’s fees.
            For all of the above reasons, the trial court’s order is affirmed.


                                       ___________________________
                                       ANNE E. COVEY, Judge




                                          13
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Valley Forge Sewer Authority            :
                                        :
            v.                          :
                                        :
Brian Hipwell, Chris Hipwell,           :
David Tober and Wanda Warner,           :   No. 1924 C.D. 2013
                        Appellants      :


                                     ORDER

            AND NOW, this 31st day of July, 2015, the Chester County Common
Pleas Court’s October 8, 2013 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
