            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Lou Doherty,                                :
                 Appellant                       :
                                                 :
               v.                                :   No. 836 C.D. 2016
                                                 :   SUBMITTED: November 10, 2016
Radnor Township                                  :



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


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                                FILED: March 30, 2017



               Mary Lou Doherty, an attorney, appeals pro se from an order of the
Court of Common Pleas of Delaware County (common pleas) that dismissed her
local agency appeal to Radnor Township’s Rental Housing Board of Appeals for
failure to exhaust administrative remedies.1 The court’s dismissal followed this
Court’s February 2016 remand for resolution of a factual dispute as to whether
Doherty paid the $3500 filing fee on July 16, 2015, when she appeared at the


    1
      It is well established that, “[t]he doctrine of exhaustion of administrative remedies requires
that the person challenging an administrative decision must first exhaust all adequate and
available administrative remedies before seeking relief from the courts.”                  Funk v.
Commonwealth, 71 A.3d 1097, 1101 (Pa. Cmwlth. 2013). Further, “[t]he purposes of this
exhaustion requirement are to prevent premature judicial intervention in the administrative
process and ensure that claims will be addressed by the body with expertise in the area.” Id.
Township’s offices prepared to submit her appeal and, purportedly, a check for
$3500.    After conducting a hearing and rendering credibility determinations,
common pleas concluded that Doherty did not make the $3500 payment to the
Township on July 16 and, therefore, dismissed her appeal. We affirm.
             The facts as found by the court are as follows. The rental properties at
issue are located at 949, 951, and 961 Glenbrook Avenue in Bryn Mawr,
Pennsylvania, and Doherty is one of three joint owners with a right of survivorship.
When she applied to renew the rental housing licenses for the properties in June
2015, the township code official refused to renew them, citing Doherty’s refusal to
permit the properties to be inspected, code violations, and numerous health, safety,
and welfare violations. Accordingly, in the July 2015 notification of non-renewal
status of rental licenses, the code official advised Doherty that she had fifteen
calendar days from July 2 in which to file an appeal with the township secretary.
             On July 16, 2015, Doherty went to the township building with her
appeal paperwork and, purportedly, a check for $3500. At that time, however, the
Township advised her that her appeal was incomplete because she failed to include
a $3500 fee for each property and that she owed $10,500 in appeal fees. After
Doherty refused to submit $10,500, she ultimately left her appeal paperwork on the
counter. On July 21, the Township sent Doherty a letter advising her that, after
further consideration, she could file a single appeal for all three properties, that the
filing fee was $3500 for a single appeal, and that, should she wish to continue with
her appeal, the filing date had been extended to August 4, 2015. On August 18,
however, the Township via its solicitor returned to Doherty all of the appeal
documents that she left with the Township in July, stating as follows:
             I am returning to you your Appeal dated July 16, 2015 as
             incomplete. As you know or should have known, there is


                                           2
              a filing fee for a rental housing appeal pursuant to the
              Township’s consolidated fee schedule. No fee was ever
              filed with the application which was left in the Township
              Building on or about July 16, 2015. Despite the lack of a
              fee, Mr. Kochanski [director of community development]
              sent you a letter dated July 21, 2015 clarifying that the
              Township would accept a single Appeal for all three of
              your rental properties . . . . Mr. Kochanski also extended
              the appeal period until August 4, 2015. Despite this
              extension of time you have still failed to file the required
              fee and accordingly your appeal is being returned to you.
              Please advise any tenants to whom you have rented any
              of the three properties that there is no current rental
              housing license issued for any of the three properties.
              Please also advise any tenants of the existing property
              code, health, safety and welfare ordinance violations
              which are existing at the three properties.
Common Pleas’ June 17, 2016, Opinion at 2.
              In response, Doherty filed a petition for review with common pleas
seeking review of the solicitor’s August 18 letter and requesting that it enter an
order precluding the Township from prosecuting the property owners for any
alleged violations of its ordinances. Subsequently, the court entered an October
2015 order sustaining the Township’s preliminary objections and dismissing
Doherty’s petition for review. In February 2016, this Court in a single-judge
memorandum opinion and order vacated common pleas’ order and remanded for
resolution of the factual dispute regarding whether Doherty made a payment of the
filing fee on July 16.
              As common pleas observed, although Doherty raises numerous issues
on appeal, they address only the legality of the Township’s actions against her and
have no relevance to the issue of payment of the filing fee.2 As it further noted,

    2
      As stated in her statement of errors complained of on appeal, Doherty’s issues on appeal
were as follows:
(Footnote continued on next page…)


                                              3
this Court in remanding the matter on the limited factual issue stated as follows:
“[I]f the Township’s claim were credited that payment of the filing fee was not
made, Common Pleas properly dismissed Doherty’s local agency appeal for failure
to exhaust administrative remedies.” Common Pleas’ June 17, 2016, Opinion at
11-12 (quoting Commonwealth Court’s February 26, 2016, Memorandum Opinion


_____________________________
(continued…)
                     1. The Court erred in not deciding that as a matter of law
             John Rice, individually or as [Township Solicitor] was not
             authorized to correct what he viewed to be a mistaken exercise of
             discretion by [Township Secretary] Robert Zienkowski, when [the
             Secretary] deliberately declined to continue an enforcement action
             initiated by his subordinate, [Mr. Kochanski] against the Petitioner.
                      2. The Court erred in deciding that as a matter of law as a
              creature of the legislature in carrying out his official functions,
              [Mr. Kochanski] had a solemn duty to perform his official
              functions in compliance with the dictates of the Ordinances as
              written by [the] Board of Commissioners and the Orders of the
              Delaware County Court of Common Pleas as entered in Docket
              No. 08-0888 and Docket No. 2014-08484 [current Docket No.
              2015-7404], and not as he wished them to have been written based
              upon his personal opinion.
                      3. The Court in not deciding that as a matter of law as a
              creature of the legislature [Mr. Kochanski], in carrying out his
              official functions under [the] Township’s Ordinances, was not
              authorized to contribute provisions not found in Ordinances
              approved by [the] Board of Commissioners] or to undo provisions
              of Orders of Court [at the aforementioned docket numbers].
                      4. The Court erred in not deciding that [Mr. Zienkowski]
              had the final word to continue an enforcement action against the
              Petitioner or not to continue it, and that by deliberately declining to
              continue it, he rendered any enforcement action initiated by his
              subordinate [Mr. Kochanski] withdrawn and ended.
Common Pleas’ June 17, 2016, Opinion at 10-11 (quoting Doherty’s June 13, 2016, Statement of
Errors Complained of on Appeal at 1-2; Reproduced Record (R.R.) at 245-46a).



                                                4
at 5; Reproduced Record at 214a).          Accordingly, we turn to common pleas’
resolution of that dispositive factual issue.
              Following a March 2016 hearing at which Doherty and two witnesses
for the Township testified, common pleas concluded that Doherty did not pay the
filing fee and, therefore, dismissed her appeal. On this point, the court rejected the
testimony of Doherty that she gave the Township a check for $3500 on July 16 and
credited the testimony of Kevin Kochanski, the director of community
development, and Ms. Jennifer DeStefano, the township manager’s executive
assistant. Mr. Kochanski testified that Doherty never handed him or anyone else at
the township building a check for $3500 on July 16. Similarly, Ms. DeStefano
testified that she did not see any check from Doherty or take any appeal paperwork
from her that day. Further, Mr. Kochanski testified that the Township never
received a check for $3500 from Doherty on or before August 4, 2015.
              Moreover, in determining that Doherty’s testimony was not credible,
common pleas noted her admissions regarding the time period after she received
the July 21 letter advising her that, should she wish to continue with her appeal,
she could file a single appeal for $3500 by August 4 that would include all three
properties.   Specifically, Doherty admitted that she never confirmed with the
Township that it already had her check or that it had deposited it. March 22, 2016,
Hearing, Notes of Testimony at 20-21. In that regard, she admitted that she did not
routinely check her bank statements and that she did not ascertain until a month or
two later that the $3500 check was never cashed. Id. at 22. She also admitted that
the solicitor in the August 18 letter rejecting her appeal as incomplete returned
only the appeal paperwork to her and not the check. Id. at 21.




                                           5
              Accordingly, pursuant to common pleas’ credibility determinations in
favor of the Township, we affirm the court’s dismissal of Doherty’s local agency
appeal for failure to exhaust administrative remedies.3              Postgate v. Dep’t of
Transp., Bureau of Driver Licensing, 781 A.2d 276, 279-80 (Pa. Cmwlth. 2001)
(holding that, credibility determinations are within the purview of the trier of fact
and will not be disturbed on appeal).


                                           _____________________________________
                                           BONNIE BRIGANCE LEADBETTER,
                                           Senior Judge




    3
      We briefly address the Township’s request for attorney’s fees and legal costs pursuant to
Section 2503(9) of the Judicial Code, 42 Pa. C.S. § 2503(9), which permits reasonable counsel
fees when “the conduct of another party in commencing the matter or otherwise was arbitrary,
vexatious or in bad faith.” Although we acknowledge the Township’s frustration, we decline its
request. This matter, to a large extent, hinged on a credibility determination. In addition,
matters were not so clear-cut in that the Township retreated from its original imposition of a
$10,500 appeal fee and extended the original appeal deadline.



                                              6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mary Lou Doherty,                   :
                 Appellant          :
                                    :
           v.                       :   No. 836 C.D. 2016
                                    :
Radnor Township                     :




                               ORDER


           AND NOW, this 30th day of March 2017, the order of the Court of
Common Pleas of Delaware County is hereby AFFIRMED.




                                 _____________________________________
                                 BONNIE BRIGANCE LEADBETTER,
                                 Senior Judge
