IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 1783 C.D. 2017

: Submitted: November 15, 2018

Richard J. Silverberg & Associates, :

P.C. and Richard J. Silverberg, :

:

Appellants :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 4, 2019

Richard J. Silverberg & Associates, P.C. (Law Firm) and Richard J. 

Silverberg (Silverberg) (collectively, Appellants) appeal from an order of the Court 

of Common Pleas of Philadelphia County (trial court) denying their motion for 

judgment of non pros, or alternatively, to enjoin enforcement of a default judgment 

based on the doctrine of laches. We affirm. 

The relevant facts are as follows. On March 11, 2008, the City of 

Philadelphia (City) filed a four-count complaint against Appellants asserting that 

although Appellants filed tax returns, they failed to fully pay self-assessed business 

privilege taxes1 and wage and net profits taxes2 at various times between 1992 and

 

1 Section 19-2603(1) of the Philadelphia Code states that “[i]n accordance with the 

provisions of . . . the First Class City Business Tax Reform Act, [Act of May 30, 1984, P.L. 345, 

(Footnote continued on next page...)
2

2004.3 The City served the complaint upon Appellants’ receptionist at the Law 

Firm on March 28, 2008. Appellants did not file a response. The City then served 

 

(continued...)

as amended, 53 P.S. §§16181–16193,] a tax is hereby imposed upon every person engaging in 

any business in the [City] beginning with the tax year 1985, and annually thereafter.” Phila. 

Code §19-2603(1). Section 19-2603(3) states that “[a]ny person having an active presence in the 

City is subject to the tax imposed by this Section,” and Section 19-2604 states that “[e]very 

business shall pay an annual tax on each dollar of annual receipts at the millage rate” stated 

therein. Phila. Code §§19-2603(3), 19-2604.

2 Section 19-1502(1)(a) of the Philadelphia Code states that “[a]n annual tax on salaries, 

wages, commissions and other compensation earned by residents of [the City] is imposed for 

general revenue purposes for the following periods at the following rates . . . stated therein.” 

Phila. Code §19-1502(1)(a). Additionally, Section 19-1502(1)(b) states, “An annual tax on 

salaries, wages, commissions and other compensation earned by non-residents of [the City] for 

work done or services performed or rendered in [the City] is imposed for general revenue 

purposes for the following periods at the following rates . . . ” stated therein. Phila. Code §19-

1502(1)(b). Finally, Section 19-1502(1)(c) provides, “The tax imposed under § 19-1502(1)(a) 

and (b) shall relate to and be imposed upon salaries, wages, commissions, and other 

compensation paid by an employer or on his behalf to any person who is employed by or renders 

services to him.” Phila. Code §19-1502(1)(c). 

Likewise, Section 19-1502(2)(a) states that “[a]n annual tax on the net profits earned in 

businesses, professions or other activities conducted by residents of [the City] is imposed for 

general revenue purposes for the following periods at the following rates . . . ” stated therein. 

Phila. Code §19-1502(2)(a). Section 19-1502(2)(b) states that “[a]n annual tax on the net profits 

earned in businesses, professions or other activities conducted in [the City] by non-residents is 

imposed for general revenue purposes for the following periods at the following rates . . . .”

Phila. Code §19-1502(2)(b). Finally, Section 19-1503(c) provides, “The tax levied under § 19-

1502(2)(a) and (b) shall relate to and be imposed on the net profits of any business, profession, 

or enterprise carried on by any person as owner or proprietor, either individually or in association 

with some other person or persons.” Phila. Code §19-1503(c). 

3 As the trial court has explained:

In this case, the City is seeking unpaid business privilege 

and wage taxes. Unlike municipal claims, business privilege and 

wage taxes are self-assessed taxes, which are collected by the City 

(Footnote continued on next page...)
3

a notice to enter default judgment upon Appellants at the Law Firm on April 21, 

2008. Again, Appellants did not file a response. On June 3, 2008, the 

prothonotary entered a default judgment of $310,586.534 at the City’s request.

5

 

(continued...)

in cooperation with the Commonwealth of Pennsylvania. Though 

not required, a claimant may recover self-assessed taxes under the 

Self-Assessed Tax Lien Act [(Tax Lien Act), Act of December 1, 

1959, P.L. 1673, as amended, 53 P.S. §§7501-7505,] which 

implicates a different set of procedures than those required to 

recover municipal claims.

The [Tax Lien Act] treats a lien filed to enforce a selfassessed claim as though it were a judgment without addressing 

liability on the underlying tax claim. See [Section 4 of the Tax 

Lien Act, 53 P.S. §7504]. Issues relating to an underlying tax 

assessment must be raised in a separate appeal of the assessment 

and “shall not be subject to review in any proceeding on the lien.” 

[Section 5 of the Tax Lien Act, 53 P.S. §7505]. Consequently, a 

self-assessed tax lien action does not require prosecution of a writ 

of scire facias to judgment. See 53 [P.S. §7504(b)] (Self-assessed 

tax liens “shall be given the effect of a judgment and a writ of 

execution may issue directly without prosecution to judgment of a 

writ of scire facias.”).

City of Philadelphia v. Wake (C.P. Phila., July Term 2008, No. 00291, filed December 21, 2018), 

slip op. at 6 (citations omitted and emphasis in original).

4 Sections 19-1504(3) and 19-1509 of the Philadelphia Code provide for the imposition of 

interest, penalties, and costs for improperly reported or unpaid business privilege taxes and wage 

and net profits taxes. Phila. Code §§19-1504(3), 19-1509.

5 Section 3 of the Tax Lien Act states, in relevant part:

 (a) Any city of the first class . . . may transmit to the prothonotary 

of its county a certified record of the self-assessed tax of any 

taxpayer who fails to—

(Footnote continued on next page...)
4

On September 25, 2008, with timely service to Appellants, the City 

filed two praecipes for writs of attachment with interrogatories, upon garnishees, 

Commerce Bank and Wachovia Bank, to enforce its judgment against Appellants.6

Only Commerce Bank submitted answers to the interrogatories. The City 

subsequently filed praecipes to dissolve the writs of attachment without prejudice 

 

(continued...)

(1) Compute and file a self-assessed tax return when required to do 

so, or

 

(2) Pay any or all of the declared amount due, or

 (3) Compute correctly or understates the amount of the selfassessed tax due.

 (b) Every certified record shall contain the name of the taxpayer, 

his address, the specific self-assessed tax involved, amount of the 

tax due, penalty and interest thereon, and the year for which the 

said tax has been levied.

53 P.S. §7503.

6 Pennsylvania Rule of Civil Procedure (Pa. R.C.P. No.) 3102 states, “a judgment shall be 

enforced by a writ of execution . . . .” Pa. R.C.P. No. 3103(a) and (e) provides, in relevant part:

 (a) Execution shall be commenced by filing a praecipe for a writ 

of execution with the prothonotary of any county in which 

judgment has been entered.

* * *

 (e) Upon issuance of the writ the prothonotary shall transmit it 

directly to the sheriff to whom it is directed or upon plaintiff’s 

request deliver it to the plaintiff or the plaintiff’s representative for 

transmittal.
5

with Commerce Bank on October 22, 2008, and with Wachovia Bank on 

November 4, 2008. 

The City took no further action from November 4, 2008, until June 3, 

2013, when the City filed a suggestion of non-payment to continue its lien.7 The 

 

7 Section 4 of the Tax Lien Act states, in pertinent part:

 (a) The prothonotary shall enter every certified record in a docket 

maintained in the prothonotary’s office . . . .

 (b) All certified records shall be a lien upon the real estate of the 

taxpayer within the county in which such city of the first class . . . 

is located from the date of entry upon the docket and until paid. 

The lien shall be given the effect of a judgment and a writ of 

execution may issue directly without prosecution to judgment of a 

writ of scire facias . . . .

 (c) The lien shall continue for five years and may be revived and 

continued in the manner now or hereafter provided for revival of 

judgments, or by the filing of a suggestion of nonpayment and 

averment of default . . . within each period of five years 

following—

 (1) The date on which the certified record of self-assessed taxes 

was entered and docketed,

 (2) The date on which a petition and rule was filed,

 (3) The date on which any judgment on the petition and rule was 

entered,

 (4) The date on which a previous suggestion of nonpayment and 

averment of default was filed,

 (5) The date on which a judgment of revival was obtained 

thereon.

* * *

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6

City made no further efforts to enforce the judgment until 2017. On March 29, 

2017, the City’s counsel entered an appearance. In June 2017, the City’s counsel 

wrote a letter to Appellants demanding payment of the judgment and noting that a 

recommendation would be made to the City to direct the sheriff to levy or seize as 

much of Appellants’ property as was necessary to satisfy the judgment.

On July 16, 2017, Appellants filed a motion for judgment of non pros

or, in the alternative, to enjoin enforcement of the judgment based on the doctrine 

of laches. The City filed an answer asserting, inter alia, that a motion for non pros

is not applicable to matters in which judgment has already been entered. On 

August 23, 2017, the trial court denied Appellants’ motion. In its opinion filed in 

support of its order denying the motion, the trial court explained that the doctrine 

of non pros was inapplicable because the City had already fully prosecuted the 

case and a judgment on the merits had been entered. The trial court also rejected 

Appellants’ laches argument because, under Section 5529(a) of the Judicial Code,

 

(continued...)

 (e) The prothonotary shall docket and index the suggestion and 

averment directed therein . . . . The filing and indexing of such 

suggestion and averment within five years of filing the claim . . . or 

any judgment thereon or the filing of any prior suggestion and 

averment of default, shall have the same force and effect for the 

purpose of continuing and preserving the lien of the claim as 

though a writ of scire facias had been issued or a judgment or 

judgment of revival had been obtained within such period. It shall 

be lawful for a writ of scire facias to issue and be prosecuted to 

judgment in the manner in which such writs are now ordinarily 

employed. The above described procedures shall be in addition to 

any other methods of collection that may be or are presently 

authorized.

53 P.S. §7504(a)-(c), (e).
7

42 Pa. C.S. §5529(a), the City had 20 years from the date the judgment was entered 

to execute against Appellants’ personal property. Appellants appealed the trial 

court’s order to the Superior Court, which transferred the appeal to this Court.8 See

Section 5103(a) of the Judicial Code, 42 Pa. C.S. §5103(a) (“If an appeal . . . is 

taken to . . . a court . . . which does not have jurisdiction of the appeal or other 

matter, the court . . . shall not quash such appeal or dismiss the matter, but shall 

transfer the record thereof to the proper tribunal . . . .”).

On appeal,9 Appellants assert that the trial court erred in denying their 

motion for judgment of non pros or to enjoin enforcement of the default judgment 

 

8 Section 762(a)(4)(i)(A) of the Judicial Code vests this Court with exclusive appellate 

jurisdiction from orders of the trial court in actions where the application, interpretation, or 

enforcement of any “statute regulating [the] affairs of political subdivisions, municipalit[ies] and 

other local authorities or other public corporations” is drawn into question. 42 Pa. C.S. 

§762(a)(4)(i)(A).

9 By February 23, 2018 Order, this Court directed the parties to address the appealability 

of the trial court’s order denying Appellants’ motion in their principal briefs on the merits. 

Appellants are, in essence, seeking equitable relief to prevent execution of the previously entered 

default judgment. See, e.g., Wasson v. McClintock, 703 A.2d 726, 727 (Pa. Cmwlth. 1997) 

(“When a party files a petition for a judgment of non pros, that party is seeking equitable relief 

which is based on the equitable doctrine of laches.”) (citation omitted). As this Court has 

explained:

[E]quity has jurisdiction to protect by injunction property or 

personal rights when a fundamental question of legal right is 

involved and when the interests of justice require relief. If a

statute sets forth an adequate procedure by which a party may 

proceed but it is not the exclusive means by which the party may 

seek relief, a court in its discretion may allow an action in equity. 

It is an equally accepted principle that a court in which an 

execution proceeding is pending has the inherent power to stay the 

proceeding upon legal or equitable grounds, when it is necessary to 

protect the rights of a party. [Pa. R.C.P. No.] 3121. A court 

should not stay execution unless the facts of the case warrant such 

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8

based on the doctrine of laches. However, after reviewing the record, Appellants’ 

brief, and the law, we conclude that the appellate issues have been ably resolved in 

the thorough and well-reasoned opinion of Judge Daniel J. Anders, and affirm on 

the basis of his opinion in the matter of City of Philadelphia v. Richard J. 

Silverberg & Associates, P.C. and Richard J. Silverberg. (C.P. Phila., No. 1510

March Term 2008, filed October 24, 2017).

 

MICHAEL H. WOJCIK, Judge

 

(continued...)

an exercise of discretion, which judgment requires balancing the 

rights of the creditor and debtor.

City of Easton v. Marra, 862 A.2d 170, 174 (Pa. Cmwlth. 2004) (citations omitted). Thus, the 

trial court’s order denying Appellants’ motion in the instant matter is a final, appealable order. 

See id. at 172 n.1 (“The court in which an execution proceeding is pending has an inherent right 

to stay execution when it is necessary to protect the rights of a party. On review, an appellate 

court will not disturb a trial court’s determination absent a clear abuse of discretion or error of 

law.”) (citations omitted).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 1783 C.D. 2017

:

Richard J. Silverberg & Associates, :

P.C. and Richard J. Silverberg, :

:

Appellants :

O R D E R

AND NOW, this 4

th day of April, 2019, the order of the Philadelphia 

County Court of Common Pleas dated August 23, 2017, is AFFIRMED.

 

MICHAEL H. WOJCIK, Judge