Roderick G. Strohl, Jr., et al. v. South Annville Township, et al. - 2162 & (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Roderick G. Strohl, Jr., Richard E. Houser, and similarly situated individuals including individuals known as Concerned Citizens of South Annville v. South Annville Township, South Annville Township Authority, Dale L. Hoover, Donald H. Umberger, Sr., Roy A. Meyer, Jeffrey A. Steckbeck and Engineering [& Surveying, Inc.] Appeal of: Jaromir Kovarik Roderick G. Strohl, Jr., Richard E. Houser, and Similarly Situated Individuals Including Individuals Known as Concerned Citizens of South Annville Township v. South Annville Township, South Annville Township Lebanon County, Authority, Dale L. Hoover, Donald H. Umberger, Sr., Roy A. Meyer, Jeffrey D. Steckbeck, and Steckback Engineering & Surveying, Inc. Appeal of: South Annville Township, Lebanon County, Pennsylvania; South Annville Township, Lebanon County, Authority; Dale L. Hoover; Donald H. Umberger Sr.; and Roy A. Meyer : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 2162 C.D. 2009 No. 2324 C.D. 2009 Submitted: October 29, 2010 BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÃ E COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: April 13, 2011 The cross-appeals before this Court stem from an order of the Court of Common Pleas of Lebanon County (trial court), dated October 27, 2009, which awarded sanctions in the form of attorney s fees to South Annville Township (Township), South Annville Township Authority (Authority), Dale L. Hoover, Roy A. Meyer, and Donald H. Umberger, Sr. (collectively, Municipal Defendants) and Jeffrey D. Steckbeck and Steckbeck Engineering (collectively, Steckbeck) against plaintiffs Roderick G. Strohl, Jr. (Strohl) and Richard E. Houser (Houser), and their original counsel, Jaromir Kovarik (Kovarik). Kovarik and the Municipal Defendants filed the subject cross-appeals. At issue in the case are the manner and timeliness of Municipal Defendants request for sanctions. Suffice it to say, this case has a long and tortured procedural history. The underlying dispute in this matter arose out of the Township s adoption of a sewage facilities plan under the Pennsylvania Sewage Facilities Act (Act 537), Act of January 24, 1966, P.L. (1965) 1535, as amended, 35 P.S. §§ 750.1-.20a. Strohl, Houser, and Concerned Citizens of South Annville (collectively, Plaintiffs),1 represented by Kovarik, were opposed to the Township s Act 537 Plan. Plaintiffs commenced this action with the filing of a civil complaint against the Township on July 8, 2005. The complaint purported to be a class action2 and alleged that the Township had violated the Local Government Unit Debt Act (the Debt Act)3 and 1 Kovarik describes the group known as Concerned Citizens of South Annville as a loosely organized association of persons affected by the Act 537 Plan. (Kovarik s Brief at 6.) The only indication in the record of this group s membership is a witness list submitted by Kovarik on January 28, 2009. (Plaintiffs/Respondents Witness List for February 26, 2009 Hearing on Sanctions, January 28, 2009, Exhibit A.) 2 Plaintiffs styled the complaint and the first five amended complaints as a class action; however, it does not appear from the record that the action was ever certified as a class action. 3 53 Pa. C.S. §§ 8801-8271. 2 the Right-to-Know Act (RTKA).4 Original service of the complaint was not properly effected upon the Township. In conjunction with the complaint, Plaintiffs filed a motion for preliminary injunction, which prompted the trial court to issue a rule to show cause upon the Township and schedule a hearing for July 12, 2005. During the hearing, the trial court chastised Kovarik for failing to name necessary parties and failing to effectuate original service of process of the complaint. The trial court further informed Kovarik that it had no jurisdiction to hear the Plaintiffs Debt Act claim and that Plaintiffs had failed to follow the statutory requirements for an appeal under the RTKA. The trial court warned Kovarik that it has the power to award counsel fees for his failure to follow the Pennsylvania Rules of Civil Procedure, and that the trial court was considering doing so if the Township requested sanctions. By order filed July 13, 2005, the trial court denied Plaintiffs motion for preliminary injunction. By letter dated July 13, 2005, the Township demanded that Plaintiffs voluntarily discontinue their cause of action to avoid the filing of preliminary objections and the pursuit of sanctions. On July 27, 2005, Plaintiffs filed an amended complaint, adding the remaining Municipal Defendants to the action. Notwithstanding the defects identified by the trial court during the July 12, 2005 hearing, Plaintiffs continued to advance claims against all Municipal Defendants for their alleged violations of the Debt Act and the RTKA. The amended complaint also added a third claim for alleged negligent misrepresentation. By letter dated July 27, 2005, Municipal Defendants informed Kovarik of their 4 Act of June 21, 1957, P.L. 390, as amended, formerly 65 P.S. §§ 66.1-66.4, repealed by the Right-to-Know Law, Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104. 3 intention to seek damages for wrongful use of civil proceedings under the Dragonetti Act, 42 Pa. C.S. §§ 8351-55, and attorney s fees under Section 2503 of the Judicial Code, 42 Pa. C.S. § 2503,5 if Plaintiffs continued to pursue their cause of action. Municipal Defendants then filed preliminary objections to the amended complaint, in which they requested sanctions in the form of attorney s fees and costs incurred. In response, Plaintiffs filed a second amended complaint on August 30, 2005, which continued to advance claims for alleged violations of the Debt Act and the RTKA and for negligent misrepresentation. Plaintiffs did not address the jurisdictional or legal defects that were identified in Municipal Defendants preliminary objections; however, Plaintiffs included in the second amended complaint twelve (12) new claims directed at Municipal Defendants, relating to civil conspiracy, breach of fiduciary duty, violation of federal and state environmental law, violation of Pennsylvania s Wiretapping and Electronic Surveillance Act,6 and violation of Plaintiffs First Amendment rights. Municipal Defendants filed preliminary objections to the second amended complaint, again requesting that sanctions be imposed. In response, Plaintiffs filed a third amended complaint on October 7, 2005. Plaintiffs deleted 5 Section 2503 of the Judicial Code provides, in pertinent part: The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: (7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. .... (9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith. 6 18 Pa. C.S. §§ 5703-5728. 4 three claims but continued to assert twelve (12) claims that were virtually identical to those previously asserted in the second amended complaint. Municipal Defendants filed preliminary objections to the third amended complaint, again requesting sanctions. Plaintiffs responded by filing a fourth amended complaint on November 14, 2005. The only changes from the third amended complaint to the fourth amended complaint involved the deletion of five paragraphs of factual allegations and the consolidation of four First Amendment claims into one claim. Municipal Defendants filed preliminary objections to the fourth amended complaint, yet again requesting sanctions. Thereafter, Municipal Defendants sent another letter to Kovarik, warning of their intention to pursue damages under the Dragonetti Act and attorney s fees under Section 2503 of the Judicial Code if Plaintiffs did not voluntarily discontinue their cause of action. In response, Plaintiffs filed a fifth amended complaint on December 16, 2005, in which Plaintiffs added new defendants, Steckbeck. The substance of the claims asserted in the fifth amended complaint was unchanged from the third and fourth amended Complaints with respect to the factual averments and legal claims directed at Municipal Defendants. Municipal Defendants filed preliminary objections to the fifth amended complaint, in which they again requested sanctions. By order dated December 30, 2005, the trial court sustained Municipal Defendants preliminary objections and dismissed Plaintiffs fifth amended complaint with prejudice. As part of the December 30, 2005 order, the trial court scheduled a hearing for January 31, 2006, to address Municipal Defendants repeated request for sanctions 5 under Pa. R.C.P. No. 1023.17 and Section 2503 of the Judicial Code. This hearing was later continued to March 1, 2006. Plaintiffs appealed the December 30, 2005 order on January 5, 2006. During the pendency of the appeal, sanctions proceedings continued in the trial court. Although Steckbeck had not requested sanctions previously, Steckbeck filed a motion for sanctions on February 6, 2006, in anticipation of the March 1, 2006 hearing. Municipal Defendants and Steckbeck subsequently filed briefs in support of their respective requests for sanctions. Plaintiffs, represented by new counsel, 7 Pa. R.C.P. No. 1023.1 provides, in pertinent part: (c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law, (3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual allegations are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (d) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (c) has been violated, the court may, subject to the conditions stated in Rules 1023.2 through 1023.4, impose an appropriate sanction upon any attorneys, law firms and parties that have violated subdivision (c) or are responsible for the violation. 6 filed a brief in opposition, arguing, inter alia, that Municipal Defendants request for sanctions was improperly raised via preliminary objections and that Steckbeck s motion for sanctions was untimely. At the March 1, 2006 hearing, the trial court, recognizing that Municipal Defendants had made their request for sanctions via preliminary objections, continued the sanctions hearing to a later date and granted Municipal Defendants leave to file a separate motion for sanctions pursuant to Pa. R.C.P. No. 1023.2.8 On March 6, 2006, Municipal Defendants filed a motion for sanctions, requesting attorney s fees under Pa. R.C.P. No. 1023.1 and Section 2503 of the Judicial Code, to which Plaintiffs filed an answer on March 23, 2006. By order dated December 13, 2006, this Court, in connection with Plaintiffs January 5, 2006 appeal, vacated the trial court s December 30, 2005 8 Pa. R.C.P. No. 1023.2 provides: (a) An application for sanctions under this rule shall be made by motion, shall be made separately from other applications and shall describe the specific conduct alleged to violate Rule 1023.1(c). (b) No such motion shall be filed unless it includes a certification that the applicant served written notice and demand to the attorney or pro se party who signed or filed the challenged pleading, motion or other paper. The certification shall have annexed a copy of that notice and demand, which shall identify with specificity each portion of the document which is believed to violate the provisions of this rule, set forth the basis for that belief with specificity, include a demand that the document or portion of the document, be withdrawn or appropriately corrected. An application for sanctions may be filed if the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected within twenty-eight days after service of the written demand. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. (c) A motion requesting sanctions under this rule shall be filed in the trial court before the entry of final judgment. (Emphasis added.) 7 order and remanded the matter back to the trial court with instructions to afford Plaintiffs an opportunity to respond to Municipal Defendants preliminary objections to Plaintiffs fifth amended complaint. Thereafter, the trial court reinstated Municipal Defendants preliminary objections to Plaintiffs fifth amended complaint and stayed sanctions proceedings until resolution of the underlying case. Plaintiffs filed an answer and preliminary objections to Municipal Defendants preliminary objections, along with a proposed sixth amended complaint. By order dated April 3, 2007, the trial court again sustained Municipal Defendants preliminary objections and dismissed Plaintiffs fifth amended complaint with prejudice. Plaintiffs appealed the April 3, 2007 order on May 2, 2007. Municipal Defendants and Steckbeck filed motions to lift the stay and renew their motions for sanctions on May 16, 2007, and May 18, 2007, respectively. In response, the trial court continued the stay of the sanctions proceedings until resolution of Plaintiffs appeal. By order dated June 20, 2008, this Court affirmed the trial court s April 3, 2007 order. Plaintiffs did not seek allocatur from our Supreme Court, thereby ending the underlying case, and the trial court lifted the stay on July 31, 2008. On October 3, 2008, Kovarik s counsel filed a motion to dismiss Municipal Defendants and Steckbeck s motions for sanctions.9 Thereafter, Municipal Defendants and Steckbeck filed briefs in opposition to Kovarik s motion to dismiss. On January 29, 2009, Kovarik, acting on behalf of Plaintiffs, filed a second motion to dismiss the motions for sanctions. A hearing was scheduled for February 26, 2009. 9 At the time of the October 3, 2008 motion to dismiss, Kovarik s counsel was counsel of record for Kovarik only. On March 3, 2009, he entered his appearance for Plaintiffs. 8 The parties filed a stipulation of facts and briefs in support of their respective positions. Plaintiffs argued, inter alia, that they were immune from sanctions pursuant to statute, that the record did not support an award of sanctions, and that the motions for sanctions were not properly before the trial court pursuant to either Pa. R.C.P. No. 1023.2 or Section 2503 of the Judicial Code. Municipal Defendants and Steckbeck contended that sanctions were justified due to the egregious nature of Plaintiffs actions. A hearing was held on June 25, 2009. By order dated October 5, 2009, the trial court granted in part and denied in part Municipal Defendants and Steckbeck s motions for sanctions, awarding attorney s fees against Plaintiffs. The trial court held that Plaintiffs were not immune from sanctions pursuant to statute and that sanctions were appropriate because Plaintiffs behaved in a vexatious manner by unduly delaying proceedings and advancing meritless claims. After reciting the lengthy procedural history of the matter, the trial court explained: We warned Plaintiffs as early as July 12, 2005 that persistent meritless filings and procedural mistakes could lead to an award of counsel fees and costs to all Defendants. Further, we warned Plaintiffs in open court on the same date to research the Pennsylvania Rules regarding Civil Procedure. [Municipal] Defendants also continuously warned Plaintiffs the unwarranted advancement of a meritless and defective case would cause them to seek monetary sanctions. . . . Plaintiffs simply failed to heed the many warnings they were given. (Trial Court Opinion, dated October 5, 2009, attached to Kovarik s Brief, Appendix A-1 at 9-10.)10 10 It is unclear whether the trial court awarded attorney s fees pursuant to Pa. R.C.P. No. 1023.1, Section 2503 of the Judicial Code, or both. 9 Having found sanctions to be appropriate, the trial court next determined the specific amount of sanctions to be imposed. Although Municipal Defendants and Steckbeck requested a collective total of $143,419.93, the trial court awarded a sum of only $25,000.00 in attorney s fees.11 (Id. at 13-14.) The trial court reasoned: [T]he amounts awarded are fair and allow [Municipal] Defendants [and Steckbeck] to recover a portion of their attorneys fees and costs, yet Plaintiffs are still put on alert to refrain from engaging in this type of conduct again in the future. (Id. at 14.) On October 27, 2009, Kathy G. Wingert, Esq. filed a motion for clarification of the trial court s October 5, 2009 order.12 Attorney Wingert argued that the identity of the parties responsible for paying the sanctions awarded in the October 5, 2009 order was unclear, pointing out that Concerned Citizens of South 11 Municipal Defendants requested $17,535.98 for Josele Cleary, Esq., Township Solicitor; $20,742.50 for Samuel G. Weiss, Jr., Authority Solicitor; and $51,975.84 for Frank J. Lavery, Esq. and Cheryl L. Kovaly, Esq. Steckbeck requested $53,165.61 for Matthew L. Owens, Esq. These amounts represent the total fees and costs incurred from the initial filing of the complaint through the completion of the June 25, 2009 sanctions hearing. (Trial Court Opinion, dated October 5, 2009, attached to Kovarik s Brief, Appendix A-1 at 13-14.) The trial court awarded Municipal Defendants a total of $22,500.00: $5000.00 for Attorney Cleary s services; $5000.00 for Attorney Weiss services; and $12,500.00 for Attorneys Lavery and Kovaly s services. The trial court awarded Steckbeck a total of $2,500.00 for Attorney Owens services. (Trial Court Order, dated October 5, 2009, attached to Kovarik s Brief, Appendix A-2 at 11-12.) 12 It is unclear from the record on exactly whose behalf Attorney Wingert was acting. From what we are able to glean from the motion for clarification, several residents of South Annville Township contacted Attorney Wingert regarding their potential liability under the October 5, 2009 order after receiving correspondence from Kovaric on October 14, 2009. (R.R. at 705a-16a.) Kovarik s correspondence presumably sent to each individual identified as a Concerned Citizen of South Annville on Kovarik s January 28, 2009 witness list (see Plaintiffs/Respondents Witness List for February 26, 2009 Hearing on Sanctions, January 28, 2009, Exhibit A) informed these residents that they may be liable as a Plaintiff under the October 5, 2009 order by way of being a Concerned Citizen of South Annville. (R.R. at 716a.) 10 Annville is not a defined group and that Kovaric never established a class in which members could opt in or opt out. On October 27, 2009, the trial court issued an order amending the October 5, 2009 order. Without altering the sanctions imposed by the October 5, 2009 order, the October 27, 2009 order provided: AS THE COURT RECALLS THAT IT WAS UNABLE TO DEFINE ANY PLAINTIFFS OTHER THAN [STROHL], [HOUSER], AND THEIR COUNSEL, [KOVARIK], THIS SANCTION ORDER SHALL ONLY BE ENTERED AGAINST [STROHL], [HOUSER], AND [KOVARIK] JOINTLY AND SEVERALLY AND AGAINST NO OTHER PLAINTIFFS. (R.R. at 718a.) These cross-appeals followed. On appeal,13 Kovarik argues, inter alia, that the trial court was without jurisdiction to grant Municipal Defendants and Steckbeck s motions for sanctions pursuant to Section 5505 of the Judicial Code, 42 Pa. C.S. § 5505.14 We agree. Under Section 5505 of the Judicial Code, [a] trial court s jurisdiction generally extends for [30] days after the entry of a final order. . . . After the 30 day time period, the trial court is divested of jurisdiction. Freidenbloom v. Weyant, 814 A.2d 1253, 1255 (Pa. Super. 2003), overruled in part on other grounds by Miller Elec. Co. v. DeWeese, 589 Pa. 167, 907 A.2d 1051 (2006). A trial court, 13 This Court s review of a trial court s order awarding attorney s fees is limited to determining whether the trial court palpably abused its discretion in making a fee award. Thunberg v. Strause, 545 Pa. 607, 614-15, 682 A.2d 295, 299 (1996). A trial court has abused its discretion if it failed to follow proper legal procedures or misapplied the law. Miller v. Miller, 983 A.2d 736, 743 (Pa. Super. 2009), appeal denied, ___ Pa. ___, 998 A.2d 961 (2010). 14 Section 5505 of the Judicial Code provides, in pertinent part: [A] court upon notice to the parties may modify or rescind any order within 30 days after it entry, notwithstanding the prior termination of any term of court, if no appeal from such an order has been taken or allowed. 11 therefore, lacks the authority to act on a motion for sanctions that is filed beyond the 30-day period. See id. at 1256 ( Courts of Common Pleas retain jurisdiction to consider fee petitions filed within a period of 30 days after the entry of a final order. ) Here, the trial court sustained Municipal Defendants preliminary objections and dismissed Plaintiffs fifth amended complaint with prejudice by order dated December 30, 2005. constitutes a final order. The trial court s December 30, 2005 order See Pa. R.A.P. 341. Municipal Defendants and Steckbeck filed their motions for sanctions on March 6, 2006, and February 6, 2006, respectively. Having both been filed more than 30 days after the trial court s December 30, 2005 order, the trial court was without jurisdiction to act on either motion, regardless of whether the trial court was proceeding under Pa. R.C.P. No. 1023.1 or Section 2503 of the Judicial Code. This Court recognizes that Municipal Defendants initially requested sanctions in their preliminary objections to Plaintiffs first through fifth amended complaints; however, a request for sanctions cannot be made via preliminary objections. See Pa. R.C.P. No. 1028; Borough of Conshohocken v. Borough of Conshohocken Auth., 654 A.2d 661, 664 n.7 (Pa. Cmwlth. 1995) ( [A] request for attorney s fees could not have been properly raised in . . . preliminary objections. ). The trial court apparently was cognizant of this error at the March 1, 2006 hearing when it granted Municipal Defendants leave to file a separate motion for sanctions to avoid an appealable issue. (R.R. at 327a.) Although the trial court purported to disregard this procedural defect pursuant to Pa. R.C.P. No. 126,15 a trial court cannot utilize Pa. R.C.P. No. 126 to enlarge its own jurisdiction. 15 Pa. R.C.P. No. 126 provides: 12 See Frycklund v. Way, 599 A.2d 1332, 1334 (Pa. Super.) ( Where a court lacks jurisdiction to determine the outcome of a cause of action, a court cannot ignore such a defect under Pa. R.C.P. [No.] 126. ), appeal denied, 531 Pa. 654, 613 A.2d 560 (1992). Furthermore, while Municipal Defendants and Steckbeck both filed motions to renew their respective motions for sanctions, these motions were also filed at a time when the trial court was divested of jurisdiction. To recapitulate, the trial court s jurisdiction over this matter was reinstated as a result of Plaintiffs successful appeal of the trial court s December 30, 2005 order. By order dated April 3, 2007, the trial court again sustained Municipal Defendants preliminary objections and dismissed Plaintiffs fifth amended complaint with prejudice. The trial court s April 3, 2007 order constitutes a final order. See Pa. R.A.P. 341. Municipal Defendants and Steckbeck filed motions to renew their motions for sanctions on May 16, 2007, and May 18, 2007, respectively. Because both of these motions were filed more than 30 days after the April 3, 2007 order, the trial court was without jurisdiction to act on either of them. The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. 13 Accordingly, we vacate the trial court s order.16, 17 P. KEVIN BROBSON, Judge 16 Kovarik also argues that (1) the record does not support an award of sanctions; (2) the trial court incorrectly calculated the potential amount of attorney s fees awardable; (3) the trial court erred by not granting Plaintiffs immunity; and (4) the trial court acted with bias and/or partiality against Plaintiffs in adjudicating the motions for sanctions. Municipal Defendants argue that the trial court committed an abuse of discretion in awarding sanctions of an insufficient amount. Having found that the trial court was without jurisdiction to grant the motions for sanctions, this Court need not address these arguments. 17 This Court reaches the above result with regret. Our decision should not be interpreted as condoning Kovarik s conduct below. 14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Roderick G. Strohl, Jr., Richard E. Houser, and similarly situated individuals including individuals known as Concerned Citizens of South Annville v. South Annville Township, South Annville Township Authority, Dale L. Hoover, Donald H. Umberger, Sr., Roy A. Meyer, Jeffrey A. Steckbeck and Engineering [& Surveying, Inc.] Appeal of: Jaromir Kovarik Roderick G. Strohl, Jr., Richard E. Houser, and Similarly Situated Individuals Including Individuals Known as Concerned Citizens of South Annville Township v. South Annville Township, South Annville Township Lebanon County, Authority, Dale L. Hoover, Donald H. Umberger, Sr., Roy A. Meyer, Jeffrey D. Steckbeck, and Steckback Engineering & Surveying, Inc. Appeal of: South Annville Township, Lebanon County, Pennsylvania; South Annville Township, Lebanon County, Authority; Dale L. Hoover; Donald H. Umberger Sr.; and Roy A. Meyer : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : No. 2161 C.D. 2009 No. 2324 C.D. 2009 ORDER AND NOW, this 13th day of April, 2011, the order of the Court of Common Pleas of Lebanon County (trial court), dated October 27, 2009, is hereby VACATED. P. KEVIN BROBSON, Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.