        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Gary Kalmeyer,                              :
                                            :
                    Appellant               :
                                            :
             v.                             :   No. 967 C.D. 2017
                                            :   Argued: October 16, 2018
Municipality of Penn Hills                  :


BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY
SENIOR JUDGE COLINS                                      FILED: November 15, 2018

             This is an appeal filed by Gary Kalmeyer (Kalmeyer) from an order of
the Court of Common Pleas of Allegheny County (trial court) denying a petition to
enforce settlement that he filed in an action that had been discontinued 18 years
earlier. Because we conclude that the trial court did not have jurisdiction to act on
this filing in a discontinued action, we vacate the trial court’s order and remand for
the trial court to dismiss Kalmeyer’s petition for lack of jurisdiction.
             In 1988, Kalmeyer filed a civil action in the trial court, docketed as No.
GD 88-20904 (the 1988 action), against the Municipality of Penn Hills
(Municipality) challenging the Municipality’s sewage fee ordinance that was in
effect at that time, Ordinance No. 1848. (Trial Court Op. at 2; Petition to Enforce
Settlement ¶¶1-2 & Ex. A, Reproduced Record (R.R.) at 4a, 9a-11a; Answer to
Petition to Enforce Settlement ¶¶1-2, Supplemental (Supp.) R.R. at 2a.) Kalmeyer
alleged that Ordinance No. 1848 imposed a flat sewer usage fee on all commercial
and industrial properties that was five times the flat rate that it imposed on residential
properties and over three times the flat rate that it imposed on public buildings,
schools, churches, hospitals, and nursing homes. (Petition to Enforce Settlement Ex.
A ¶¶3-8, R.R. at 9a.) Kalmeyer contended that this commercial flat rate was
unconstitutional and in excess of the Municipality’s authority, as applied to his
property at 410 Rodi Road, which was a single-family dwelling converted to two
professional offices and was served by a private well rather than the public water
line. (Id. ¶¶1, 9-16, R.R. at 9a-11a.) Kalmeyer did not pay the full sewage fees that
were billed to him for the property under Ordinance No. 1848 and as of January
1994, this delinquency totaled over $3,000. (Trial Court Op. at 2; Petition to Enforce
Settlement Exs. B, C & D, R.R. at 12a-14a.) In January 1994, Kalmeyer and the
Municipality agreed to settle the 1988 action and Kalmeyer discontinued the action.
(Trial Court Op. at 2-3; Petition to Enforce Settlement ¶3 & Exs. B, C & D, R.R. at
3a, 12a-14a; Answer to Petition to Enforce Settlement ¶3, Supp. R.R. at 2a;
Kalmeyer Dep. at 4-5, R.R. at 44a-45a.)
              The settlement was documented by two letters, a January 14, 1994 letter
from the Municipality’s counsel and a January 28, 1994 letter from Kalmeyer. (Trial
Court Op. at 2; Petition to Enforce Settlement Exs. B & C, R.R. at 12a-13a;
Kalmeyer Dep. at 5, R.R. at 45a.) The Municipality’s January 14, 1994 letter stated
in its entirety:

              Your proposal of paying one-half the delinquent sewage through
              December 15th is acceptable to the Municipality of Penn Hills.
              A review of Centax indicates your delinquent bill, as of
              December 15, 1993, was $3,395.59. We will accept one-half of
              that amount and mark all bills current and paid through that date.
              I assume that all bills will remain current from this point forward.
              If this is acceptable, please send a check made payable for
              $1,697.79. Also, please enclose a Prothonotary’s receipt
              indicating that the case filed at GD88-20904 has been settled and
              discontinued. Any questions, please call.


                                           2
(Petition to Enforce Settlement Ex. B, R.R. at 12a.) Kalmeyer’s January 28, 1994
letter in response stated in its entirety:

              Shortly after receipt of your letter dated 1-14-94, I received the
              enclosed bill for sewage fees in the amount of $3,563.85.
              Pursuant to our agreement, I enclose a check for one half that
              amount, payable to the Central Tax Bureau. I would appreciate
              your forwarding this check and statement to them, confirming
              that this should bring our account current.
              In the meanwhile, I have already satisfied the docket, but have
              misplaced my receipt.
              Finally, I would like to get the water meter installed as soon as
              possible. Could you or someone from the municipality contact
              me and advise if they make meters available, and any other
              concerns they may have.
(Id. Ex. C, R.R. at 13a.) Following this settlement, Kalmeyer installed a water meter,
and from 1994 to 2008 the Municipality billed him for sewage based on the usage
shown by the meter. (Trial Court Op. at 2; Petition to Enforce Settlement ¶¶6, 9-13,
15-18 & Exs. E-FF, R.R. at 4a-6a, 15a-42a; Answer to Petition to Enforce Settlement
¶¶9-13, 15, 17, Supp. R.R. at 3a; Kalmeyer Dep. at 4, 8, R.R. at 44a, 48a.)
              In 2008, the Municipality enacted a new sewage fee ordinance that
included flat rates for commercial users not connected to public water lines and
began billing Kalmeyer in accordance with this new ordinance. (Trial Court Op. at
2; Petition to Enforce Settlement ¶¶20-21 & Ex. GG, R.R. at 6a, 43a; Answer to
Petition to Enforce Settlement ¶¶20-21, Supp. R.R. at 3a-4a.) Kalmeyer did not pay
the amounts that he was billed for sewage fees under the 2008 ordinance. (Trial
Court Op. at 2; Kalmeyer Dep. at 9, R.R. at 49a.)
              On February 29, 2012, Kalmeyer filed the instant petition to enforce
settlement in the 1988 action. Kalmeyer alleged in the petition that the settlement
of the 1988 action included an agreement that his sewage fees would be based on his
water usage and that the 2008 change to billing him a flat fee violated that settlement
                                             3
agreement.    (Petition to Enforce Settlement ¶¶4, 20-22, R.R. at 4a, 6a-7a.)
Kalmeyer’s petition also alleged, as an alternative ground for relief, that application
of a flat fee to his property was illegal, even if it was not barred by the settlement.
(Id. ¶¶27-28, R.R. at 7a-8a.)
             Depositions were taken in 2014 and 2015 of Kalmeyer and Wayne
DeLuca, the attorney for the Municipality who had been involved in the settlement.
Kalmeyer testified that the terms of the settlement included both the compromise of
the past due sewage fees set forth in the January 14, 1994 and January 28, 1994
letters and an agreement that he would install a water meter approved by the
Municipality and that the Municipality would bill him based on the meter reading.
(Kalmeyer Dep. at 7-9, R.R. at 47a-49a.) Kalmeyer, however, admitted that the
January 14, 1994 and January 28, 1994 letters set forth the parties’ entire settlement
agreement and were the only settlement documents. (Id. at 5, 7, R.R. at 45a, 47a.)
Kalmeyer also admitted that there was no agreement that the Municipality would not
raise its sewage fees in the future. (Id. at 5, 11, R.R. at 45a, 51a.) DeLuca testified
that he did not recall any agreement beyond the compromise of past due amounts,
and that if there was any agreement with respect to future billing, it would have been
put in writing. (DeLuca Dep. at 5-11, Supp. R.R. at 13a-19a.) Kalmeyer did not
attach the 2008 ordinance or Ordinance No. 1848 to his petition to enforce
settlement, and neither Kalmeyer nor the Municipality put either ordinance in
evidence before the trial court. Because the 1988 action was discontinued in 1994,
the original record and the trial court’s index and docket entries do not include any
documents from that action and the record contains only documents from 2012 on,
beginning with the petition to enforce the settlement agreement.
             On April 5, 2017, the trial court denied the petition to enforce
settlement on the ground that the settlement agreement did not include an agreement

                                          4
not to impose a flat fee in the future. (Trial Court Order; Trial Court Op. at 3.)
Kalmeyer timely appealed the trial court’s order to the Superior Court, which
transferred the appeal to this Court because it involves an action against a
municipality. Kalmeyer raises as the sole issue in this appeal whether the trial court
erred in its interpretation of the settlement agreement, contending that the meter-
based billing after the settlement showed that the Municipality agreed that it would
not impose a flat sewage fee in the future.1
              We conclude that the trial court did not have jurisdiction to adjudicate
the petition to enforce settlement and therefore do not address the parties’ arguments
on the merits of this appeal. This is a question of law as to which the standard of
review is de novo and the scope of review is plenary. Mazur v. Trinity Area School
District, 961 A.2d 96, 101 (Pa. 2008). Although neither party raised the issue of
jurisdiction in their briefs, subject matter jurisdiction is not waivable and may be
raised at any stage of a proceeding sua sponte by the Court. Blackwell v. State Ethics
Commission, 567 A.2d 630, 636 (Pa. 1989); Ness v. York Township Board of
Commissioners, 123 A.3d 1166, 1169 n.2 (Pa. Cmwlth. 2015). The parties were
ordered to address at oral argument whether the trial court had jurisdiction and did
address the jurisdictional issue at argument.
              Kalmeyer sought enforcement of the settlement as a petition for a rule
to show cause filed in the 1988 action, and did not file a complaint or writ of

1
   Kalmeyer also argues in his brief that the trial court erred in denying his petition because
application of the 2008 flat sewage fee to his property is unreasonable. Kalmeyer, however, did
not include this issue in his Statement of Questions Involved. (Appellant’s Br. at 4.) Issues not
included in the Statement of Questions are waived and need not be considered by the Court even
if they are addressed in the argument section of the brief. Pa. R.A.P. 2116(a); Dunn v. Board of
Property Assessment, Appeals and Review of Allegheny County, 877 A.2d 504, 510 n.13 (Pa.
Cmwlth. 2005), aff’d without op., 936 A.2d 487 (Pa. 2007); Mione v. Pennsylvania Board of
Probation and Parole, 709 A.2d 440, 443 n.6 (Pa. Cmwlth. 1998). In any event, we need not
address this issue because we vacate the trial court’s order for lack of jurisdiction.

                                               5
summons to commence an action for breach of the settlement. (Petition to Enforce
Settlement ¶1, R.R. at 4a; Answer to Petition to Enforce Settlement ¶1, Supp. R.R.
at 2a; Petition to Enforce Settlement Cover Sheet, Original Record Docket Entry No.
1 at 1; Docket Entries, R.R. at 1a-2a.) The 1988 action, however, was discontinued
in January 1994, 18 years before the petition to enforce settlement was filed.
             Ordinarily, where an action is discontinued, there is no longer any
proceeding in which the trial court may exercise jurisdiction. American Express
Bank, FSB v. Martin, __ A.3d __, __ (Pa. Super., No. 181 EDA 2018, September 5,
2018), slip op. at 3; Camp Horne Self Storage LLC v. Lawyers Title Insurance Corp.,
150 A.3d 999, 1001 (Pa. Super. 2016); Motley Crew LLC v. Bonner Chevrolet Co.,
Inc., 93 A.3d 474, 476 (Pa. Super. 2014). “‘The general effect of a discontinuance is
to terminate the action without an adjudication of the merits and to place the plaintiff
in the same position as if the action had never been instituted.’ … Absent a pending
action or controversy, the court has no matter over which to exercise jurisdiction.”
American Express Bank, __ A.3d at __, slip op. at 3 (emphasis omitted) (quoting
Motley Crew); see also Camp Horne Self Storage, 150 A.3d at 1001.

             [W]hen an action is discontinued, there no longer is an action
             pending before the trial court. It is self-evident that if there is no
             action pending before a court, there is no matter over which a
             court can or may exert jurisdiction.
Motley Crew, 93 A.3d at 476; see also Camp Horne Self Storage, 150 A.3d at 1001.
             Where there is a consent decree or other court order incorporating
settlement terms that require performance of future acts, an exception to this rule
exists and the trial court retains jurisdiction to enforce its order despite the
discontinuance of the action. Calantzis v. Collins, 269 A.2d 655, 657 (Pa. 1970)
(“The discontinuance of the action, based on a decree requiring a performance of a
series of acts does not oust the court of its jurisdiction to see to the enforcement of
                                           6
that decree”); Advanced Management Research, Inc. v. Emanuel, 266 A.2d 673, 676
(Pa. 1970) (“The power of a court of equity to enforce its own decrees is a necessary
incident to the jurisdiction of the court. … The jurisdiction of the court continues for
the purpose of enforcing the decree”) (quoting Butler County v. Pittsburgh, H., B.
and N.C. Ry. Co., 148 A. 504 (Pa. 1929)); Pennypack Woods Home Ownership
Association v. Regan, 444 A.2d 715, 716 (Pa. Super. 1982). Jurisdiction to enforce
settlement terms that are incorporated in a court order can continue to exist years
after the underlying action is discontinued. Pennypack Woods Home Ownership
Association, 444 A.2d at 716 (trial court retained jurisdiction to enforce settlement
entered as consent decree 10 years later).
             If, however, the action is simply discontinued following the parties’
agreement to a settlement and the settlement terms are not incorporated in a court
order, the trial court loses jurisdiction to act and cannot enforce the settlement on a
petition filed in the original, discontinued action. Camp Horne Self Storage, 150
A.3d at 1001-03 (trial court did not have jurisdiction to rule on the motion to enforce
settlement where the action had been discontinued over 3 years earlier). The filing
of a motion or petition to enforce a settlement that is not incorporated in a court order
does not revive the discontinued action, and a party claiming breach can obtain relief
only by commencing a new action for breach of the settlement agreement by
complaint or writ of summons. Id. at 1002.
             Here, there was no consent decree and the settlement was not
incorporated in a court order. Rather, it consisted of an exchange of two letters
between the parties that were not sent to the trial court at the time of the settlement
and, possibly, out-of-court oral understandings. (Trial Court Op. at 3; Petition to
Enforce Settlement ¶3 & Exs. B, C, R.R. at 4a, 12a-13a; Answer to Petition to
Enforce Settlement ¶3, Supp. R.R. at 2a; Kalmeyer Dep. at 5, R.R. at 45a.) Kalmeyer

                                             7
does not dispute that the 1988 action was discontinued in 1994 and that his petition
to enforce settlement was filed in the discontinued 1988 action and not as a new
action for breach of the agreement.
             Indeed, Kalmeyer at oral argument did not contend that this case is
distinguishable from Camp Horne Self Storage and argued only that this Court
should not follow that decision. Although this Court is not bound by decisions of
the Superior Court, they are persuasive precedent where they address analogous
issues and do not conflict with any decisions or reasoning of this Court or our
Supreme Court. Mazur v. Cuthbert, 186 A.3d 490, 497 n.12 (Pa. Cmwlth. 2018);
Lerch v. Unemployment Compensation Board of Review, 180 A.3d 545, 550 (Pa.
Cmwlth. 2018); In re Superior-Pacific Fund, 693 A.2d 248, 253 (Pa. Cmwlth. 1997).
Kalmeyer does not contend that Camp Horne Self Storage is inconsistent with this
Court’s or the Supreme Court’s precedents, and we find it a persuasive and accurate
statement of the law.
             Because the 1988 action had been discontinued, the trial court lacked
jurisdiction to rule on Kalmeyer’s petition. Camp Horne Self Storage, 150 A.3d at
1001-03. Accordingly, we vacate the order of the trial court and remand this matter
for the trial court to dismiss Kalmeyer’s petition for lack of jurisdiction.




                                        ____________________________________
                                        JAMES GARDNER COLINS, Senior Judge




                                           8
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Gary Kalmeyer,                                 :
                                               :
                      Appellant                :
                                               :
                v.                             :   No. 967 C.D. 2017
                                               :
Municipality of Penn Hills                     :


                                       ORDER


                AND NOW, this 15th day of November, 2018, the order of April 5, 2017
of the Court of Common Pleas of Allegheny County in the above-captioned matter
is VACATED, and this matter is REMANDED to the Court of Common Pleas of
Allegheny County to dismiss Appellant’s petition to enforce settlement for lack of
jurisdiction.
                Jurisdiction relinquished.




                                             ____________________________________
                                             JAMES GARDNER COLINS, Senior Judge
