           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Palmyra                             :
                                               :
                      v.                       :    No. 1111 C.D. 2015
                                               :    Submitted: May 6, 2016
Raymond U. Brandt,                             :
                             Appellant         :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                             FILED: July 8, 2016


       Raymond U. Brandt, proceeding pro se, appeals from the May 28, 2015,
Order of the Court of Common Pleas of Lebanon County (common pleas)
approving a settlement agreement (Agreement) between the Borough of Palmyra
(Borough) and Mr. Brandt related to municipal liens based on the use of the public
sewer system and trash/recycling collection at property owned by Mr. Brandt. On
appeal, Mr. Brandt argues that the Agreement should be set aside because, when
approving the Agreement, common pleas did not ask Mr. Brandt or his counsel
whether the Agreement was accurate, Mr. Brandt never approved of the
Agreement, and there was a “mutual mistake” regarding the amount Mr. Brandt
owed the Borough.1 Discerning no error, we affirm.

       1
          On April 22, 2016, Mr. Brandt filed what appears to be a reply brief and attached
thereto a letter that was not included in the record certified to this Court by common pleas. Mr.
                                                                                (Continued…)
       Mr. Brandt owns property in the Borough.                    On January 14, 2011 and
October 9, 2012, the Borough filed municipal liens for unpaid charges in the
amount of $32,532.38 and $7,074.14, respectively, associated with the use of the
Borough’s public sewer system and trash/recycling collection.2 The Borough filed
a writ of scire facias in July 2013 pursuant to the Municipal Claims and Tax Liens
Act.3,4 Mr. Brandt, represented by counsel, filed an affidavit of defense wherein he

Brandt’s reply brief is untimely, having been filed more than 14 days after the Borough’s brief
was served. See Rule 2185 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2185
(stating that “[a] party may serve and file a reply brief permitted by these rules within 14 days
after service of the preceding brief”). The Borough does not object to our consideration of that
document, which, other than attaching the extra-record document, does not assert any new
arguments. Thus, we will not strike the reply brief. However, we cannot consider the attached
document, as it is well-settled that “[a]n appellate court is limited to considering only those facts
that have been duly certified in the record on appeal. For purposes of appellate review, that
which is not part of the certified record does not exist. Documents attached to a brief . . . may
not be considered” if “they are not part of the certified record.” B.K. v. Dep’t of Public Welfare,
36 A.3d 649, 657 (Pa. Cmwlth. 2012) (citations omitted).
        2
          The two liens, which were separately docketed, were consolidated.
        3
          Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.
        4
          This Court has described a writ of scire facias as follows:

               A writ of scire facias is a writ authorized to be issued as a means of
       enforcing payment of a municipal claim out of the real estate upon which such
       claim is a lien. Black’s Law Dictionary 1208 (5th ed. 1979). Technically, it is a
       judicial mandate which recites the occasion upon which it issues, which directs
       the sheriff to make known to the parties named in the writ that they must appear
       before the court on a given day, and which requires the defendant to appear and
       show cause why the plaintiff should not be permitted to take some step. Shapiro
       v. Center Township, Butler County, . . . 632 A.2d 994[, 997 n.3] ([Pa. Cmwlth.]
       1993). The object of the writ of scire facias is ordinarily to ascertain the sum due
       on a lien of record and to give the defendant an opportunity to show cause why
       the plaintiff should not have execution. Id.
               In Pennsylvania, municipal claim procedure in general and scire facias
       procedure in particular, is purely statutory. Id. [at 997]. Once the municipality
       files a claim for services, the claim becomes a lien on the property. Section
       3(a)[(1)] of the Municipal Claims and [Tax] Liens Act, 53 P.S. § 7106(a)[(1)]. If
       the owner does not dispute the claim and assessment, the owner simply pays and
                                                                                   (Continued…)
                                                 2
agreed that he was liable for some of the charges but disputed the amounts
asserting that he had been improperly charged. Common pleas scheduled a bench
trial for May 28, 2015. On the day of trial, the parties, via their counsel, reached a
settlement and common pleas engaged in a settlement colloquy on the record. On
the record, the Agreement was read and common pleas asked various questions to
counsel, Mr. Brandt, and the Borough’s representatives regarding the Agreement.
Following the colloquy, common pleas issued the Order approving the settlement.
That Order states:

       And now, this 28th day of May, 2015, after agreement of the parties
       the Court directs the following to be the settlement in this matter:

       Judgment will be entered in favor of the Plaintiff, the Borough of
       Palmyra, and against the Defendant, Raymond U. Brandt in the
       amount of $36,823.48.

       Within 60 days of today’s date, Mr. Brandt will pay $25,000 towards
       the $36,823.48 leaving a balance of $11,823.48.

       Effective July 1, 2015, the property owned by Mr. Brandt will have
       charged against it three units for sewer and three units for refuse.




       removes the lien. Shapiro[, 632 A.2d at 997]. To contest the claim or amount of
       assessment and to force the issue to an original hearing, the owner may file and
       serve a notice upon the claimant municipality to issue a writ of scire facias. Id.
       In the proceeding commenced by the writ of scire facias, the owner then files an
       “affidavit of defense.” Id. In that affidavit the owner may raise all defenses he or
       she has to the municipal claim. Id.; LCN Real Estate, Inc. v. [Borough of]
       Wyoming, . . . 544 A.2d 1053 ([Pa. Cmwlth.] 1988).
               Alternatively, the municipality may pursue a writ of scire facias without
       waiting for prompting by the owner . . . . Shapiro[, 632 A.2d at 998]. In response
       to the writ, the owner may file an affidavit of defense raising all defenses. Id.

W. Clinton Cnty. Mun. Auth. v. Estate of Rosamilia, 826 A.2d 52, 56 (Pa. Cmwlth. 2003).

                                                3
       Effective July 1, 2015, Mr. Brandt will pay on the balance of
       $11,823.48 a monthly amount of $656.86 for 18 months. Mr. Brandt
       will also pay the current charges for sewer and refuse, which total
       $125.00 per month. The total of those two on a monthly basis starting
       July 1, 2015[,] is $781.86 that will continue for 18 monthly payments
       by Mr. Brandt. At the end of that period, presuming Mr. Brandt has
       made full payments, his rate will go down to whatever the standard
       rate was for sewer and refuse at that time. The current rate for sewer
       for three units is $210.00 per quarter. The current rate for refuse for
       three units is $165.00 per quarter. The Borough reserves the right to
       increase the rates for all rate payers at any time.

       If Mr. Brandt makes payment for the full 18 months as well as the
       down payment, the Borough will waive interest and penalties during
       that time.

(Order, May 28, 2015.)
       Mr. Brandt appealed pro se, and common pleas directed him to file a
Concise Statement of Errors Complained of on Appeal (Statement) pursuant to
Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure,5 Pa. R.A.P.
1925(b). In his Statement, Mr. Brandt argued that: (1) his counsel did not explain
to him the terms of the Agreement; (2) common pleas did not ask him “if he
understood and agreed to the details of the [A]greement” or “if the [m]athematics
[were] correct within the [A]greement”; and (3) that the Agreement did not reflect
credits for charges issued against him for units that Mr. Brandt did not own, which
he was prepared to prove at the bench trial. (Statement.)

       5
           Rule 1925(b) provides, in pertinent part,

       If the judge entering the order giving rise to the notice of appeal (“judge”) desires
       clarification of the errors complained of on appeal, the judge may enter an order
       directing the appellant to file of record in the trial court and serve on the judge a
       concise statement of the errors complained of on appeal (“Statement”).

Pa. R.A.P. 1925(b).

                                                  4
       Noting that “‘[t]here is a strong judicial policy in favor of voluntarily
settling lawsuits,’” and that “‘a court must enforce the terms of the agreement’” if
it “‘contains all of the requisites for a valid contract,’” common pleas held that the
hearing transcript revealed that Mr. Brandt was advised of the Agreement’s terms,
he did not indicate that he disagreed with those terms or the amounts therein, and
the only question he had was related to penalties and interest, and not the sums
involved. (1925(a) Op. at 4-5 (quoting Step Plan Services, Inc. v. Koresko, 12
A.3d 401, 408-09 (Pa. Super. 2010).) Moreover, common pleas observed that Mr.
Brandt did not assert in his Statement that there was any fraud, duress, or mutual
mistake in reaching the Agreement, which is required for setting aside a settlement
agreement. (Id. at 4, 6 (citing Step Plan Services, Inc., 12 A.3d at 409).) Finally,
common pleas indicated that it believed that all of Mr. Brandt’s claims asserted in
his appeal were waived because Mr. Brandt did not file a petition to set aside the
settlement raising these issues and requesting common pleas to set aside the
Agreement. (Id. at 6.) Accordingly, common pleas concluded that the Agreement
must be upheld.6 This matter is now ready for our review.
       On appeal,7 Mr. Brandt first argues that he never approved the Agreement
and it “was entered into among counsel.” (Mr. Brandt’s Br. at 4.) He further
asserts that although common pleas asked the Borough’s counsel about the
accuracy of the Agreement, common pleas did not ask Mr. Brandt or his counsel if

       6
         Mr. Brandt’s brief indicates that he is appealing from an Order dated August 24, 2015;
however, common pleas issued that Order with its 1925(a) Opinion and the Order indicates that
common pleas was affirming its May 28, 2015, Order. It is the May 28, 2015, Order that
approved the Agreement from which Mr. Brandt filed his notice of appeal.
       7
         “This Court reviews a trial court’s acceptance or rejection of a settlement proposal for
abuse of discretion.” BPG Real Estate Investors-Straw Party II, L.P. v. Bd. of Supervisors of
Newtown Twp., 990 A.2d 140, 145 (Pa. Cmwlth. 2010).

                                               5
it was accurate. Mr. Brandt also claims that he informed his attorney almost a year
before the Agreement that the amount claimed by the Borough was incorrect by
over $7,000. Accordingly, he asserts there was a “mutual mistake” when the
Agreement was entered into for an amount that he did not owe and, therefore,
common pleas’ Order should be reversed and a new hearing be held to address Mr.
Brandt’s claims.
      The Borough argues that Mr. Brandt waived these arguments pursuant to
Rule 302(a) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 302(a),
because they could have been made to common pleas either during the discussion
of the Agreement at the May 28, 2015, trial, or in a petition to set aside the
settlement, and were not. Either way would have provided common pleas the
opportunity to take evidence and consider Mr. Brandt’s assertions but, instead, he
raised them to this Court in the first instance in this appeal. The Borough also
asserts that Mr. Brandt did not make the required showing of fraud, duress, or
mutual mistake, or that his counsel approved the Agreement without Mr. Brandt’s
authorization and, therefore, common pleas’ approval of the Agreement was not
erroneous.
      We first address the question of whether Mr. Brandt has waived his issues
for failing to raise them before common pleas. Rule 302(a) provides that “[i]ssues
not raised in the lower court are waived and cannot be raised for the first time on
appeal.” Pa. R.A.P. 302(a). Thus, an issue not raised before common pleas cannot
be raised at the appellate level. Thoman v. Dep’t of Transp., Bureau of Driver
Licensing, 965 A.2d 385, 389 (Pa. Cmwlth. 2009). For the purposes of Rule
302(a), an issue has been defined as a “disputed point or question on which the
parties to an action desire the court to decide.” Pa. Liquor Control Bd. v. Willow


                                        6
Grove Veterans Home Ass’n, 509 A.2d 958, 961 (Pa. Cmwlth. 1986), disapproved
on other grounds by Appeal of Borough of Churchill, 575 A.2d 550 (Pa. 1990).
Requiring that issues be raised prior to the appeal “ensure[s] that the trial court or
agency that initially rules on such matters has had an opportunity to consider the
issue.” Lincoln Phila. Realty Assoc. I v. Bd. of Revision of Taxes, 758 A.2d 1178,
1186 (Pa. 2000).
      At the hearing, at which Mr. Brandt and his counsel were present, the terms
of the Agreement were read into the record by the Borough’s counsel. Following
the recitation of the terms, the following exchange occurred:

      The Court: [Mr. Brandt’s counsel], anything further?

      [Mr. Brandt’s counsel]: No, I don’t have anything to add.

      The Court: Mr. Brandt, did you hear that, sir?

      [Mr. Brandt]: Yes. I wonder about the continuing interest and
      penalties on that money in the future.

      The Court: Well, if - - did you discuss that with him?

      [Borough’s counsel]: If Mr. Brandt makes payment for the full 18
      months as well as down payment, the [B]orough will waive interest
      and penalties during that time period.

      The Court: All right. Does that answer your question?

      [Mr. Brandt]: Yes, it is [sic] does.

      The Court: Very well. And, folks, on behalf of the [B]orough, is that
      your agreement?

      [Borough Representative 1]: Yes.

      [Borough Representative 2]: Correct.


                                             7
      The Court: The Court will direct that be the full settlement of this
      matter of both parties. . . . These are only as good as the people’s
      words that they keep to them. . . . What I . . . want to say is that by
      appearing in court as respectful as you all are and saying, Judge, we
      agree to this, that’s what’s important. . . . The fact that you can finally
      sit together and say, okay, we’ve had our differences, we’re not happy
      but we can agree[,] [t]hat’s important and that’s how good
      government works. . . .

(Hr’g Tr. at 3-5.) From this passage, it is apparent that Mr. Brandt: was advised of
the Agreement’s terms; was asked by common pleas if he heard those terms;
inquired about a particular term that he wanted in the Agreement; received a
satisfactory answer from the Borough’s counsel on that term; and did not object or
otherwise state his disagreement with the Agreement’s terms. The Borough’s
Representatives indicated that the terms read into the record reflected the
Borough’s agreement with Mr. Brandt. At no point did Mr. Brandt express that he
did not understand the Agreement, that he did not approve of the Agreement, or
that his counsel was not authorized to have entered into the Agreement on his
behalf. Thus, we conclude that Mr. Brandt did not raise these issues before
common pleas and, as such, has not preserved them for appellate review.
      Similarly, the terms read into the record included that the amount Mr. Brandt
was agreeing to pay to the Borough was $36,823.48.              Notwithstanding Mr.
Brandt’s current assertions that this sum is too high, a fact of which he indicates he
was aware at least one year before the Agreement and that he had been prepared to
challenge that amount, Mr. Brandt did not question or otherwise challenge that
amount at the May 28, 2015, hearing. The only question Mr. Brandt raised related
to the calculation of continuing penalties and interest on that amount, which was
answered to his satisfaction. (Hr’g Tr. at 4.) If Mr. Brandt believed that the
amount he owed the Borough was less than that asserted by the Borough and set

                                          8
forth in the Agreement, that was a “disputed point or question on which [he]
desire[d] the court to decide,” Willow Grove Veterans Home Association, 509
A.2d at 961, he should have raised that issue with common pleas at the May 28,
2015, hearing. Had he done so, common pleas would have “had an opportunity to
consider the issue” before, or in lieu of, approving the Agreement. Lincoln Phila.
Realty Assoc. I, 758 A.2d at 1186. Accordingly, we also conclude that Mr. Brandt
did not preserve this issue for appellate review pursuant to Rule 302(a).
       In addition to failing to object to the trial court at the hearing, Mr. Brandt did
not file a petition to set aside the settlement agreement with common pleas, which
also would have enabled common pleas to consider these claims.8


       8
         Even if these issues had been preserved, we would not be persuaded by Mr. Brandt’s
arguments. Mr. Brandt was made aware of the terms of that Agreement when they were read in
open court, he had an opportunity to ask questions regarding the Agreement (which he did) and
to express his non-approval or disagreement to entering the Agreement. He did not do so. Thus,
we agree with common pleas that Mr. Brandt approved of the Agreement and that Mr. Brandt’s
counsel did not enter into the Agreement on his behalf without authorization.
       Mr. Brandt also has not established that the Agreement was induced by fraud, duress, or
mutual mistake. As observed by common pleas, “[t]here is a strong judicial policy” in this
Commonwealth that favors voluntary settlement agreements between parties “because it reduces
the burden on the courts and expedites the transfer of money into the hands of a complainant.”
Step Plan Services, Inc., 12 A.3d at 408-09 (internal quotation omitted). The principles of
contract law govern the enforcement of settlement agreements; thus, if there is an offer,
acceptance and consideration, i.e., all the requirements of a valid contract, the terms of the
settlement agreement will be enforced. Id. Absent a “clear showing of fraud, duress, or mutual
mistake,” “[a] settlement agreement will not be set aside.” Pennsbury Village Assoc., LLC v.
McIntyre, 11 A.3d 906, 914 (Pa. 2011).
       The doctrine of mutual mistake, relied upon by Mr. Brandt,

       occurs when the parties to the contract have an erroneous belief as to a basic
       assumption of the contract at the time of formation which will have a material
       effect on the agreed exchange as to either party. A mutual mistake occurs when
       the written instrument fails to . . . set forth the “true” agreement of the parties.
               ***
                                                                                 (Continued…)
                                                9
       For these reasons, we affirm.




                                               ________________________________
                                               RENÉE COHN JUBELIRER, Judge




               A contract entered into under a mutual misconception as to an essential
       element of fact may be rescinded or reformed upon the discovery of the mistake if
       (1) the misconception entered into the contemplation of both parties as a condition
       of assent, and (2) the parties can be placed in their former position regarding the
       subject matter of the contract. In other words, mutual mistake occurs when a fact
       in existence at the time of the formation of the contract, but unknown to both
       parties, will materially affect the parties’ performance of the contract.

Step Plan Services, Inc., 12 A.3d at 410 (italicized emphasis added). The party asserting the
mutual mistake must present clear, precise, and convincing evidence of that mistake. Bugen v.
New York Life Ins. Co., 184 A.2d 499, 500 (Pa. 1962). Mr. Brandt claims that a “mutual
mistake” exists in the terms of the Agreement based on his belief that he was overcharged by the
Borough. Mr. Brandt acknowledges, however, in his arguments that he had advised his counsel
of this alleged overcharge at least a year before the Agreement was entered into on May 28,
2015. Because Mr. Brandt was aware of the alleged overcharge, it was not “unknown to both
parties,” at the time of the agreement, and thus not a mutual mistake. Step Plan Services, Inc.,
12 A.3d at 410 (emphasis added).

                                               10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Palmyra                    :
                                      :
                 v.                   :   No. 1111 C.D. 2015
                                      :
Raymond U. Brandt,                    :
                       Appellant      :



                                   ORDER


     NOW, July 8, 2016, the Order of the Court of Common Pleas of Lebanon
County, entered in the above-captioned matter, is hereby AFFIRMED.




                                      ________________________________
                                      RENÉE COHN JUBELIRER, Judge
