IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Duquesne City and Duquesne School :
:
v. : No. 1088 C.D. 2019
: Submitted: January 24, 2020
Burton Samuel Comensky, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: May 6, 2020
Burton Samuel Comensky (Appellant), pro se, appeals from an Order of the
Court of Common Pleas of Allegheny County (trial court), denying his “Petition to
[E]nforce Pa. Statute[s] 42 [Pa.C.S. §] 5522 [and] 42 [Pa.C.S. §] 8103(d)”
(Petition) and barring Appellant, without leave of court, from filing anything
further that relates to the judicial sale of property Appellant formerly owned.
Appellant argues he had the legal right to file the Petition after Duquesne City and
Duquesne School (collectively, Taxing Authorities) failed to petition the trial court
to fix the fair market value of the property under Section 8103 of the act commonly
known as the Deficiency Judgment Act (DJA), 42 Pa.C.S. § 8103. The trial court
found the DJA did not apply because Taxing Authorities were not seeking to
recover a deficiency judgment. However, by its own terms, the DJA applies to the
judgment at issue here, and so whether Taxing Authorities were seeking to recover
a deficiency judgment has no effect on a debtor’s right to seek to have a judgment
marked satisfied, released, and discharged. Accordingly, we reverse the trial
court’s Order and remand the matter for the trial court to direct the clerk to mark
the judgment satisfied, released, and discharged.
The litigation between the parties involving this real property located at 32
South Sixth Street in the City of Duquesne has spanned more than a decade and
has been the subject of many legal actions. We set forth only the relevant facts
here.1 This matter was commenced on October 30, 2007, when Taxing Authorities
filed a Praecipe for Writ of Scire Facias Sur Tax Lien and Statement, alleging
$12,154.98 was owed in real estate tax liens for delinquent school taxes for the
years 1990 and 1995-2006 and delinquent city taxes for the years 1991 and 1995-
2006. (Record (R.) Item 1.) After some legal wrangling, including an
interlocutory appeal to this Court that was quashed, Duquesne City School District
v. Comensky (Pa. Cmwlth., No. 1587 C.D. 2010, filed February 24, 2012)
(Comensky I), the trial court, in December 2013, granted Taxing Authorities’
Motion for Judgment on the Pleadings and entered judgment in Taxing
Authorities’ favor in the amount of $28,003.15 plus additional penalties, interest,
and costs that would accrue from the date of judgment. (R. Item 30.) In February
2014, Taxing Authorities filed a Praecipe for Writ of Execution, which was
reissued multiple times, before a sheriff’s sale was scheduled for September 2015.
(R. Items 31-39, 43-44.) When no bids were received on the property, Taxing
Authorities filed a “Petition for Rule to Show Cause Why Property Should Not be
Sold Pursuant to Section 31.1 of what is commonly known as the Municipal
1
A more complete recitation of the facts leading up to the judicial sale may be found in
Duquesne City v. Comensky (Pa. Cmwlth., No. 389 C.D. 2016, filed February 1, 2017).
2
Claims and Tax Liens Act,[2] 53 P.S. § 7282,” which was ultimately granted. (R.
Items 45, 51.)
A judicial sale was held on January 4, 2016, at which Duquesne City
purchased the property for a bid of costs in the amount of $1882.92. (R. Item 65.)
Appellant moved to set the sale aside on a number of grounds, including improper
service, which the trial court denied. (R. Items 52-53, 58.) This Court upheld the
judicial sale in Duquesne City v. Comensky (Pa. Cmwlth., No. 389 C.D. 2016, filed
February 1, 2017), appeal denied (Pa., No. 22 WM 2017, filed April 24, 2017)
(Comensky II). On July 14, 2017, Duquesne City requested a sheriff’s deed for the
property. (R. Item 65.) A sheriff’s deed was recorded on August 8, 2017. 3 (R.
Item 66.)
On July 16, 2018, Appellant filed the Petition. Following briefing and
argument, the trial court issued its Order dated July 9, 2019 denying Appellant’s
Petition as moot, with prejudice. Therein, the trial court also ordered that
Appellant was “barred from filing, without prior leave of court, new actions,
motions or petitions against [Taxing Authorities] or their designees for the same
claims or claims related to the Sheriff’s Sale of the property” that was previously
litigated before this Court and in federal court. (Order, R. Item 74.) According to
the trial court’s Order, any such actions would be “dismissed as frivolous pursuant
to P[a].R.C.P. No. 233.1,[4] and [Appellant] shall be subject to sanctions as the
2
Act of May 16, 1923, P.L. 207, as amended, added by Section 1 of the Act of May 22,
1945, P.L. 844, 53 P.S. §§ 7101-7455.
3
Appellant alleges the deed was recorded on September 29, 2017, but we see no
indication in the record of this date.
4
Rule 233.1 of the Pennsylvania Rules of Civil Procedure provides:
(Footnote continued on next page…)
3
[trial c]ourt deems appropriate.” (Id.) In its opinion issued pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a) (1925(a)
Opinion), the trial court further explained the reasoning behind its Order.
Specifically, the trial court found the DJA is inapplicable because “Taxing
Authorities have not attempted to obtain a deficiency judgment.” (1925(a) Opinion
at 3.) The trial court further found that because Taxing Authorities are not
pursuing a deficiency judgment, the DJA does “not require Taxing Authorities to
petition the court to set the fair market value of the property at issue.” (Id.)
Accordingly, the trial court stated Appellant’s Petition was frivolous. (Id.) In
terms of its Order barring Appellant from filing anything further related to the
_____________________________
(continued…)
(a) Upon the commencement of any action filed by a pro se plaintiff in the court
of common pleas, a defendant may file a motion to dismiss the action on the basis
that
(1) the pro se plaintiff is alleging the same or related claims which the pro se
plaintiff raised in a prior action against the same or related defendants, and
(2) these claims have already been resolved pursuant to a written settlement
agreement or a court proceeding.
(b) The court may stay the action while the motion is pending.
(c) Upon granting the motion and dismissing the action, the court may bar the pro
se plaintiff from pursuing additional pro se litigation against the same or related
defendants raising the same or related claims without leave of court.
(d) The court may sua sponte dismiss an action that is filed in violation of a court
order entered under subdivision (c).
(e) The provisions of this rule do not apply to actions under the rules of civil
procedure governing family law actions.
Pa.R.C.P. No. 233.1.
4
property, the trial court noted “[t]here has already been lengthy litigation in this
matter since [Appellant] has continuously challenged service and attempted to set
aside the sale of the [p]roperty.” (Id. at 3-4.) Citing Comensky II, the trial court
stated the 2013 judgment is final. (Id. at 4.) As a result, the trial court reasoned
“[i]t was appropriate to bar [Appellant] from future filings without leave of court . .
. .” (Id.)
Appellant appealed the trial court’s Order to this Court. On appeal,5
Appellant argues the sale price of the property was less than the judgment owed,
and when Taxing Authorities failed to file a petition seeking to set the fair market
value of the property within six months, under the DJA, he had the legal right to
file his Petition. Appellant asserts Section 8103 of the DJA affords debtors, such
as himself, the opportunity to have a judgment against the debtor marked satisfied,
and he was denied due process when the trial court denied his Petition. Appellant
also disputes assertions that Taxing Authorities are not pursuing a deficiency
judgment, pointing to a writ of execution that was reissued, which refers to
garnishment. Appellant further denies that he is seeking to relitigate the judgment
against him; instead, he asserts, he is simply trying to enforce his rights.
Taxing Authorities respond that the DJA is inapplicable because this is an
action in rem, not an action in personam.6 Further, Taxing Authorities argue that
because the sale was pursuant to the Municipal Claims and Tax Liens Act, the
5
Our scope of review is limited to determining whether the trial court abused its
discretion, rendered a decision unsupported by the evidence, or erred as a matter of law.
McElvenny v. Bucks Cty. Tax Claim Bureau, 804 A.2d 719, 721 (Pa. Cmwlth. 2002).
6
“[I]n rem” is defined as “[i]nvolving or determining the status of a thing, and therefore
the rights of persons generally in respect to that thing.” In rem, Black’s Law Dictionary (11th
ed. 2019). “[I]n personam” is defined as “[i]nvolving or determining the personal rights and
obligations of the parties.” In personam, Black’s Law Dictionary (11th ed. 2019).
5
property was sold free and clear, and all tax and municipal liens were extinguished.
To the extent Appellant is attempting to redeem the property, Taxing Authorities
assert Appellant has no right to redemption. Taxing Authorities further deny that
they are seeking to recover additional sums from Appellant, explaining that the
writ of execution is a “boilerplate form” and no garnishee is listed. (Taxing
Authorities’ Brief at 11.) As for the trial court’s Order barring Appellant from
filing anything further related to the property, Taxing Authorities point out this
matter has been litigated before the trial court, this Court, the Pennsylvania
Supreme Court, a bankruptcy court, and a federal district court; thus, Rule 233.1
permits the trial court to bar Appellant from pursuing further action.
We begin with Appellant’s argument that the DJA permits him to file the
Petition. The DJA provides that
[w]henever any real property is sold, directly or indirectly, to the
judgment creditor[7] in execution proceedings and the price for which
such property has been sold is not sufficient to satisfy the amount of
the judgment, interest and costs and the judgment creditor seeks to
collect the balance due on said judgment, interest and costs, the
judgment creditor shall petition the court to fix the fair market value
of the real property sold. . . .
42 Pa.C.S. § 8103(a). The DJA further provides that:
[i]f the judgment creditor shall fail to present a petition to fix the fair
market value of the real property sold within the time after the sale of
such real property provided by section 5522 (relating to six months
limitation), the debtor, obligor, guarantor or any other person liable
directly or indirectly to the judgment creditor for the payment of the
debt, or any person interested in any real estate which would, except
for the provisions of this section, be bound by the judgment, may file
a petition, as a supplementary proceeding in the matter in which the
7
“Judgment creditor” is defined as “[t]he holder of the judgment which was enforced by
the execution proceedings.” 42 Pa.C.S. § 8103(g).
6
judgment was entered, in the court having jurisdiction, setting forth
the fact of the sale, and that no petition has been filed within the time
limited by section 5522 to fix the fair market value of the property
sold, whereupon the court, after notice as prescribed by general rule,
and being satisfied of such facts, shall direct the clerk to mark the
judgment satisfied, released and discharged.
42 Pa.C.S. § 8103(d). It is under this provision that Appellant filed his Petition.
Taxing Authorities argue the DJA does not apply here because the action
was commenced by a Praecipe for Writ of Scire Facias Sur Tax Lien and
Statement, which is an in rem action, not an in personam action. Taxing
Authorities provide no support for the proposition that the DJA applies only to in
personam actions. In fact, the DJA itself defines “[j]udgment” as a
judgment which was enforced by the execution proceedings referred
to in subsection (a), whether that judgment is a judgment in personam
such as a judgment requiring the payment of money or a judgment de
terris or in rem such as a judgment entered in an action of mortgage
foreclosure or a judgment entered in an action or proceeding upon
a mechanic’s lien, a municipal claim, a tax lien or a charge on land.
42 Pa.C.S. § 8103(g) (emphasis added). By its very terms, the DJA applies to the
judgment at issue here.
Taxing Authorities further argue that they have not sought any deficiency
judgment against Appellant. We agree with Taxing Authorities that the writ of
execution issued in this case does not seek to garnish Appellant’s personal property
or financial accounts. However, we disagree that Appellant must wait until Taxing
Authorities seek to enforce a deficiency judgment, if ever, to act. The DJA plainly
provides that a debtor, such as Appellant, may seek to have the judgment marked
satisfied, released, and discharged by filing a petition if the judgment creditor does
not seek to fix the fair market value of the property within six months. 42 Pa.C.S.
7
§ 8103(d). That is exactly what Appellant did here. By filing the Petition,
Appellant was not attempting to relitigate his past claims regarding the sale of the
property, nor could he; he was seeking to have the judgment previously entered
against him marked satisfied, released, and discharged, which is within his right to
do. Therefore, Appellant’s Petition was not frivolous and the trial court erred in
barring Appellant from filing anything further without leave of court under Rule
233.1, which governs frivolous litigation by pro se plaintiffs.
Because the DJA does apply to the judgment against Appellant and because
the Petition was not frivolous, we reverse the trial court’s Order. Upon remand of
this matter, the trial court shall direct the clerk to mark the judgment satisfied,
released, and discharged.8
_____________________________________
RENÉE COHN JUBELIRER, Judge
8
Appellant’s application for oral argument is denied.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Duquesne City and Duquesne School :
:
v. : No. 1088 C.D. 2019
:
Burton Samuel Comensky, :
Appellant :
ORDER
NOW, May 6, 2020, the Order of the Court of Common Pleas of Allegheny
County (trial court), dated July 9, 2019, is REVERSED, and this matter is
REMANDED for the trial court to direct the clerk to mark the judgment against
Burton Samuel Comensky (Appellant) satisfied, released, and discharged. The
Application for Oral Argument filed by Appellant is DENIED.
Jurisdiction relinquished.
_____________________________________
RENÉE COHN JUBELIRER, Judge