IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D. Keith Dixon :
Heather Merritt-Dixon (wife), :
Appellants :
:
v. : No. 943 C.D. 2017
: Submitted: April 13, 2018
Amity Township Board of Supervisors, :
Amity Township, Pennsylvania :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 23, 2018
D. Keith Dixon and Heather Merritt-Dixon (Appellants), pro se, appeal
from an order of the Court of Common Pleas of Berks County (trial court), dated
June 8, 2017. The trial court granted Amity Township Board of Supervisors (Board)
and Amity Township’s (Township) (collectively, Appellees) motion for summary
judgment (Motion), thereby dismissing Appellants’ Complaint with prejudice. For
the reasons set forth below, we affirm.
Appellants are the owners of real property (Property) located at 639 Old
Airport Road in the Township. The Property contains an on-lot sewage disposal
system. On January 17, 2006, the Board adopted Ordinance No. 221, known as the
“Amity Township On-Lot Sewage Disposal System Management Ordinance”
(Ordinance).1 The Board adopted the Ordinance pursuant to The Second Class
Township Code (SCTC),2 The Clean Streams Law (CSL),3 and the Pennsylvania
Sewage Facilities Act (PSFA),4 all of which, according to the Township, grant the
Township “the authority and the obligation to provide for adequate sewage treatment
facilities and for the protection of public health by preventing the discharge of
untreated or inadequately treated sewage.” Section 201(b) of the Ordinance. The
stated purpose of the Ordinance includes, inter alia, “to provide for the regulation,
inspection, maintenance, and rehabilitation of on-lot sewage disposal systems within
[the] Township[.]” Section 201(c) of the Ordinance.
The Ordinance requires that all preexisting on-lot sewage disposal
systems “be inspected by a Township Sewage Enforcement Officer [(SEO)] or [a
Pennsylvania Department of Labor and Industry] Certified Plumbing Inspector
every three (3) years in conjunction with a pumping schedule and regions established
by the Township.” Section 205(a) of the Ordinance. In connection with the
inspection, owners of on-lot sewage disposal systems are required to pay a
maintenance inspection fee of $65. (Supplemental Reproduced Record (Supp. R.R.)
at 126b.) The Ordinance also requires that all individuals owning a building that is
serviced by an on-lot sewage disposal system “have the septic tank pumped by a
licensed Pumper/Hauler . . . at least once every three (3) years in accordance with a
schedule and regions developed by the Township.” Section 207(a) of the Ordinance.
1
The Ordinance amended and restated Part 2, entitled “On-Lot Sewage Disposal Systems,”
of Chapter XXIII, entitled “Sewers and Sewage Disposal,” of the Township’s Code of Ordinances.
2
Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701.
3
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-.1001.
4
Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§ 750.1-.20a.
2
An owner of an on-lot sewage disposal system that is convicted in a summary
proceeding for a violation5 of the Ordinance is liable to pay a fine in an amount not
less than $500 nor more than $5,000. Section 213 of the Ordinance. An owner that
fails to pay such fine may be subject to imprisonment for a period not to
exceed 90 days. Section 213 of the Ordinance.
Appellants refused to permit the Township’s SEO to perform an
inspection of their on-lot sewage disposal system or to pay the $65 maintenance
inspection fee.6 As a result, on March 13, 2009, the Township issued a notice of
violation to Appellants. Appellants appealed the notice of violation to the Board,
which denied Appellants’ appeal. In so doing, the Board concluded that Appellants
violated the Ordinance by failing to consent to the inspection of their on-lot sewage
disposal system. Appellants did not appeal the Board’s decision to the trial court.
On September 16, 2009, Appellants filed this declaratory judgment
action, seeking a declaration that the Ordinance is invalid and unconstitutional.
Appellants alleged, inter alia, that: (1) the Ordinance’s penalty provisions subject a
person who violates the Ordinance to imprisonment without a trial by jury and a
monetary fine that is not authorized by existing law; (2) the Ordinance grants
authority to the Township to perform a warrantless search and seizure of
privately-owned property—i.e., an inspection of an on-lot sewage disposal system
(search) and the payment of a $65 inspection maintenance fee (seizure); and (3) the
5
“Each day or portion thereof in which a violation exists shall be considered to be a
separate violation, and each Section [of the Ordinance] which is violated shall be considered to be
a separate violation.” Section 213 of the Ordinance.
6
While Appellants also initially refused to provide the Township with proof that they had
the septic tank serving their on-lot sewage disposal system pumped as required by the Ordinance,
they eventually produced a receipt indicating that the septic tank was pumped on June 1, 2007.
3
SCTC, the CSL, and the PSFA did not provide the Township with the necessary
authority to enact the Ordinance.
On August 15, 2012, Appellees filed their Motion.7 In their Motion and
supporting memorandum of law, Appellees argued that they were entitled to
summary judgment because the Ordinance is constitutionally valid and there is no
genuine issue of material fact that would require Appellants’ claims to be submitted
to a fact finder. In opposition to Appellees’ Motion, Appellants argued that the trial
court should deny Appellees’ Motion because there were numerous material facts in
dispute.8 By order dated June 8, 2017, the trial court granted Appellees’ Motion and
dismissed Appellants’ Complaint with prejudice. This appeal followed.
On appeal,9 Appellants argue that the trial court erred by failing to deem
Appellees’ responses to the averments set forth in their Complaint as admissions in
accordance with Pennsylvania Rule of Civil Procedure No. 1029(b). Appellants
argue further that the trial court erred by granting Appellees’ Motion because, in
7
Shortly after Appellees filed their Motion, the case entered a 4-year period of inactivity.
On May 20, 2016, the trial court notified Appellants that it intended to terminate the case for
inactivity unless Appellants filed a statement of intention to proceed. Appellants filed their
statement of intention to proceed on July 14, 2016. Thereafter, on April 4, 2017, Appellants filed
a motion for judgment on the pleadings, which the trial court denied by order dated May 1, 2017.
Appellants did not appeal the trial court’s denial of their motion for judgment on the pleadings as
part of this appeal.
8
In their filing entitled “Plaintiffs’ Opposition to Defendants’ Motion for Summary
Judgment with Verified Issues of Material Facts in Dispute,” Appellants identify 62 of what they
refer to as “verified genuine issues of material fact.”
9
“The scope of this Court’s review of a grant or denial of summary judgment is limited to
determining whether the trial court committed an error of law or an abuse of discretion.”
Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736, 738 n.2 (Pa. Cmwlth. 1997). “Summary judgment
is appropriate only when, after examining the record in the light most favorable to the non-moving
party, there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Guy M. Cooper, Inc. v. E. Penn Sch. Dist., 903 A.2d 608, 613 (Pa. Cmwlth. 2006),
appeal denied, 918 A.2d 748 (Pa. 2007).
4
light of such admissions, Appellees essentially admitted all of Appellants’ claims
and, therefore, were not entitled to judgment as a matter of law. In response,
Appellees argue that their responses to the averments set forth in Appellants’
Complaint “were sufficient to avoid the occurrence of any deemed admissions.”
(Appellees’ Br. at 21.) More specifically, Appellees argue that the averments set
forth in Appellants’ Complaint constituted “conclusions of law, naked conclusions,
evidentiary allegations, expressions of opinion or other argumentative allegations,”
and, therefore, the Township was “not required to responsively plead in detail.”
(Appellees’ Br. at 18.) Appellees also argue that the trial court properly granted their
Motion because Appellants have failed to “identify any disputed material facts that
could support a verdict in [Appellants’] favor” or “develop any substantive legal
argument . . . to support the propositions that the Ordinance and its enforcement
upon [Appellants] and the [Property] is unconstitutional or improper.” (Appellees’
Br. at 16, 22.)
Pennsylvania Rule of Civil Procedure No. 1029 provides, in pertinent
part:
(a) A responsive pleading shall admit or deny each
averment of fact in the preceding pleading or any part
thereof to which it is responsive. A party denying only a
part of an averment shall specify so much of it as is
admitted and shall deny the remainder. Admissions and
denials in a responsive pleading shall refer specifically to
the paragraph in which the averment admitted or denied
is set forth.
(b) Averments in a pleading to which a responsive
pleading is required are admitted when not denied
specifically or by necessary implication. A general denial
or a demand for proof, except as provided by
subdivisions (c) and (e) of this rule, shall have the effect
of an admission.
....
5
(d) Averments in a pleading to which no responsive
pleading is required shall be deemed to be denied.
“While averments of fact require a denial, conclusions of law do not compel a
response.” Rohrer v. Pope, 918 A.2d 122, 129 (Pa. Super. 2007). In other words, a
party’s failure to file a responsive pleading to a “pure conclusion of law” or “a
conclusion as to the central legal issue in the case” does not result in a deemed
admission. Michener v. Montgomery Cty. Tax Claim Bureau, 671 A.2d 285, 288
(Pa. Cmwlth. 1996). “A legal conclusion is a statement of a legal duty without
stating the facts from which the duty arises.” Kaiser v. W. States Adm’rs,
702 A.2d 609, 614 (Pa. Cmwlth. 1997). “A statement of the existence of a fact could
be a legal conclusion if the fact stated is one of the ultimate issues in the
proceeding.” Id.
Here, Appellants contend that all of Appellees’ responses to the
averments set forth in their Complaint, except for those that Appellees expressly
admitted, are non-responsive, general denials and should have been deemed
admitted by the trial court in accordance with Pennsylvania Rule of Civil Procedure
No. 1029(b). Despite their contention, however, Appellants have cited only a few
examples of Appellees’ alleged non-responsive, general denials—i.e., Appellees’
responses to paragraphs 1, 10, 92, 101, 110, 136, and 138 of Appellants’
Complaint.10 Our review of paragraphs 1, 10, 92, 101, 110, 136, and 138 of
Appellants’ Complaint and Appellees’ responses thereto reveals that Appellees’
responses comply with Pennsylvania Rule of Civil Procedure No. 1029 and,
therefore, are adequate to deny Appellants’ averments. Paragraphs 1, 10, 92, 101,
110, 136, and 138 of Appellants’ Complaint do not contain any factual averments
10
Appellants have waived any argument that Appellees’ remaining responses to their
Complaint were insufficient and should have been deemed admitted, because they failed to
specifically identify or address Appellees’ remaining responses in their brief to this Court.
6
that require a responsive pleading. See Pa. R.C.P. No. 1029(a). Rather, such
paragraphs set forth legal conclusions, quote written documents, and/or provide
Appellants’ characterizations of written documents. Appellees could have
completely ignored or denied these paragraphs without any explanation because they
do not require a responsive pleading. See Pa. R.C.P. No. 1029(a), (d). For these
reasons, we cannot conclude that the trial court erred by failing to deem Appellees’
responses to the averments set forth in Appellants’ Complaint as admissions.
In addition, even assuming, arguendo, that Appellees’ responses to the
averments set forth in Appellants’ Complaint are deemed admitted, Appellants have
failed to either: (1) identify any genuine issues of material fact that remain for a fact
finder to consider; or (2) develop any legal argument that establishes how Appellees’
deemed admissions prove that the Ordinance and its application to Appellants and
the Property is invalid, unconstitutional, and/or improper. In other words,
Appellants have failed to demonstrate why, in light of Appellees’ deemed
admissions to the averments set forth in Appellants’ Complaint, the trial court should
have denied Appellees’ Motion. For these reasons, we cannot conclude that the trial
court erred by granting Appellees’ Motion.
Accordingly, we affirm the trial court’s order.
P. KEVIN BROBSON, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
D. Keith Dixon :
Heather Merritt-Dixon (wife), :
Appellants :
:
v. : No. 943 C.D. 2017
:
Amity Township Board of Supervisors, :
Amity Township, Pennsylvania :
ORDER
AND NOW, this 23rd day of August, 2018, the order of the Court of
Common Pleas of Berks County is hereby AFFIRMED.
P. KEVIN BROBSON, Judge