Com. v. A.S. Kanofsky ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 1523 C.D. 2016
: No. 1524 C.D. 2016
Alvin S. Kanofsky, : No. 1525 C.D. 2016
Appellant : Submitted: May 5, 2017
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 11, 2017
In these consolidated appeals, Appellant Alvin S. Kanofsky
(Kanofsky), pro se, appeals from three orders of the Court of Common Pleas of
Northampton County (trial court), dated May 25, 2016. Following a de novo
hearing, the trial court found Kanofsky guilty of four summary criminal charges
for violations of certain provisions of the International Property Maintenance Code
(2009 ed.) (IPMC) and the Pennsylvania Uniform Construction Code (UCC),1 both
of which have been made part of the Codified Ordinances of the City of
Bethlehem, Pennsylvania (Ordinance).2 For the reasons set forth below, we affirm
the trial court’s orders.
1
34 Pa. Code §§ 401.1-405.42.
2
Article 1733 of the Ordinance adopted the IPMC with certain additions, deletions, and
modifications as noted therein. Article 1701 of the Ordinance adopted the UCC with certain
additions, deletions, and modifications as noted therein.
Kanofsky is the owner of commercial property located at 30 East
Third Street (Property) in the City of Bethlehem (City). On September 17, 2015,
Craig B. Hynes (Hynes), the City’s chief code official, issued two citations to
Kanofsky, one for failure to obtain a certificate of occupancy for the Property in
violation of Section 403.46 of the UCC3 and another for failure to correct
violations related to the Property’s exterior structure in violation of
Section 304.1 of the IPMC.4 Thereafter, on September 25, 2015, Hynes issued two
more citations to Kanofsky, one for failure to make required repairs to loose and
cracked materials on the Property’s exterior structure in violation of Section 304.6
of the IPMC5 and another for failure to obtain a certificate of occupancy for the
Property in violation of Section 403.46 of the UCC. On February 3, 2016, after
holding a summary trial, a Magisterial District Judge (MDJ) found Kanofsky guilty
of all four violations of the Ordinance and assessed fines and costs against
Kanofsky in the amount of $1,952.50.
3
Section 403.46 of the UCC provides, in relevant part: “(a) A building, structure or
facility may not be used or occupied without a certificate of occupancy issued by a building code
official.”
4
Section 304.1 of the IPMC provides: “General. The exterior of a structure shall be
maintained in good repair, structurally sound and sanitary so as not to pose a threat to the public
health, safety or welfare.” Section 304.1.1 of the IPMC sets forth specific conditions that are
deemed unsafe and must be repaired or replaced. One of the unsafe conditions is: “[r]oofing or
roofing components that have defects that admit rain, roof surfaces with inadequate drainage, or
any portion of the roof framing that is not in good repair with signs of deterioration, fatigue or
without proper anchorage and incapable of supporting all nominal loads and resisting all load
effects.” Section 304.1.1(8) of the IPMC (emphasis in original.)
5
Section 304.6 of the IPMC provides: “Exterior Walls. All exterior walls shall be free
from holes, breaks, and loose or rotting materials; and maintained weatherproof and properly
surface coated where required to prevent deterioration.” (Emphasis in original.)
2
Kanofsky appealed the MDJ’s determinations to the trial court. The
trial court held a de novo hearing on May 25, 2016. At the hearing, the City6
presented the testimony of Lieutenant Benjamin Hackett (Lt. Hackett) of the City’s
police department. Lt. Hackett testified that on March 24, 2015, he and another
police officer responded to the Property based on a report that an exterior door to
the building located on the Property was open and that there were potential
squatters located inside the building. (Reproduced Record (R.R.) at 21-22.) Lt.
Hackett testified further that upon their arrival at the Property, he and the other
police officer entered through the open door and searched the building to “clear” it
of any unauthorized individuals and/or criminal behavior. (Id. at 22, 24.) During
their search, Lt. Hackett made the following observations regarding the interior of
the building: (1) the building was filled with a large amount of items/junk;
(2) certain sections of the floor were missing, thereby exposing the floor
beams/joists and leaving the ceiling from the floor below the only means of
support; (3) some of the windows were missing; (4) the fourth/upper floor
contained large trash vessels that were filled and overflowing with water; (5) water
had been entering the building through the roof, causing the ceiling to deteriorate
and litter the floor with debris; (6) the water overflowing from the trash vessels had
caused damage to the floor; and (7) the building contained an extensive amount of
mold. (Id. at 22.) Lt. Hackett explained that the interior of the building was
basically falling apart. (Id.) Lt. Hackett testified that he also walked around the
exterior/perimeter of the building (the three sides that were accessible). (Id. at 23.)
6
The City assumed responsibility for the prosecution of the violations of its Ordinance on
behalf of the Commonwealth of Pennsylvania (Commonwealth). All references to the City shall
also be considered references to the Commonwealth.
3
As he did so, he observed broken pieces of brick located on the sidewalk below the
south-facing wall and was concerned about whether it was even safe to stand under
the wall. (Id.) Lt. Hackett testified further that he had prepared a police report
detailing his observations about the Property and requested that it be forwarded to
the building inspection department due to the safety issues that he had discovered.
(Id. at 26.)
The City also presented the testimony of Hynes. Hynes testified that
he had issued a citation to Kanofsky for violation of Section 304.1.1 of the IPMC
as a result of Lt. Hackett’s observations regarding the leaky roof that had been
causing the building to deteriorate and fall into a state of disrepair. (Id. at 27, 29;
Certified Record (C.R.), Ex. C-11B.) Hynes testified further that he had also
performed an inspection of the Property in February 2014, which revealed, inter
alia, deteriorating brick on the rear and courtyard sides of the building that needed
to be pointed, as well as water bleeding through the exterior brick. (R.R. at 27.)
Following that inspection, the City sent Kanofsky a letter dated February 25, 2014,
advising him that he would be issued a citation, if he did not make certain
corrections to the Property. (Id.; C.R., Ex. C-5.) Hynes explained that some of the
issues identified in the February 25, 2014 letter, namely the deteriorating brick on
the south-facing wall of the Property, were the same as those that resulted in the
issuance of the citation to Kanofsky for violation of Section 304.6 of the IPMC.7
(R.R. at 27, 29; C.R., Ex. C-11C.) More specifically, Hynes stated that the
7
Hynes admitted that Kanofsky had corrected some of the issues identified in the
February 25, 2014 letter and that those issues were not part of the citations that are the subject of
this case. (R.R. at 31.) In addition, the City’s attorney conceded that the City was proceeding
against Kanofsky for the defective condition of only the south-facing wall of the Property, not
the courtyard wall. (Id. at 32.)
4
south-facing side of the building contained missing bricks, loose and deteriorating
bricks, and severely deteriorating and loose mortar joints. (R.R. at 28.) Hynes also
testified that in October 2015, at an initial hearing before the MDJ, the MDJ
requested that Hynes create a timeline for Kanofsky to complete any repairs to the
Property. (Id.) At that time, Hynes and Kanofsky agreed in writing that Kanofsky
would have six months to repoint and repair the brick.8 (Id. at 28-29;
C.R., Ex. C-10.) Hynes testified that despite this agreement, Kanofsky did not
repair and repoint the brick and the condition of the brick has probably become
worse since that time. (R.R. at 29.)
Hynes testified further that he also issued two citations to Kanofsky
for failure to have a certificate of occupancy for the Property in violation of
Section 403.46 of the UCC. (Id.; C.R., Exs. C-11A and C-11D.) Hynes explained
that when you look into the front windows of the building, you can see “a lot of
material inside the building being stored.” (R.R. at 30; C.R., Exs. C-4A
through C-4F.) Hynes explained further that since May 23, 2016, when he took
photographs of the front of the building, and September 2015, when he issued the
citations, the materials have remained inside the building and have not been
removed. (R.R. at 30.) Hynes testified that the storage of the items currently
located at the Property requires a certificate of occupancy, which Kanofsky does
not have and has never had during the sixteen years that Hynes has been employed
by the City. (Id. at 30-31.)
8
Hynes and Kanofsky also agreed that Kanofsky would have: (1) one month to complete
any soffit and fascia repairs on the Adams Street side of the building; (2) three months to
complete any repairs to the roof; and (3) four months to remove all materials that had been stored
in the building. (C.R., Ex. C-10.)
5
Kanofsky, who was acting pro se, made a statement at the hearing on
his own behalf. Kanofsky stated that from the time that he purchased the building
until about ten years ago, he had been performing repairs and trying to maintain the
building and that he had verbal permission to store items at the Property.
(Id. at 33.) On cross-examination, Kanofsky admitted that he was the owner of the
Property. (Id.) Kanofsky also admitted that in October 2015, when the case was
before the MDJ, he had signed an agreement, wherein he agreed to repair the roof
within three months, remove all materials from the Property within four months,
and repair and repoint the brick within six months. (Id.) Kanofsky admitted
further that he had obtained estimates, but that none of the work that he had agreed
to perform had been completed and the items being stored in the building had not
been removed. (Id.) Kanofsky explained that he had run into problems with the
contractors because the work could not be performed in the cold weather. (Id.)
Kanofsky also explained that it was his intention to remedy the issues “very
quickly now that the warm weather [was] here.” (Id.)
At the conclusion of the hearing, the trial court determined that the
City had met its burden of proof with respect to Kanofsky’s violations of the IPMC
and the UCC. As a result, the trial court found Kanofsky guilty of all charges and
fined Kanofsky in the amount of $1,400, plus the costs of prosecution.9 Kanofsky
9
The trial court imposed the following fines against Kanofsky: (1) a $400 fine plus costs
for Kanofsky’s first offense of failure to obtain a certificate of occupancy in violation of
Section 403.46 of the UCC; (2) a $600 fine plus costs for Kanofsky’s second offense of failure to
obtain a certificate of occupancy in violation of Section 403.46 of the UCC; (3) a $200 fine plus
costs for Kanofsky’s failure to make required repairs to loose and cracked materials on the
Property’s exterior structure in violation of Section 304.6 of the IPMC; and (4) a $200 fine plus
costs for Kanofsky’s failure to correct violations related to the Property’s exterior structure in
violation of Section 304.1 of the IPMC.
6
then appealed to this Court,10 and the trial court directed Kanofsky to file a
statement of matters complained of on appeal. In its 1925(a) opinion, 11 the trial
court concluded that Kanofsky’s argument that it erred in its credibility
determinations lacked merit because, as the fact-finder, it was free to believe or
disbelieve the presented testimony. (Trial Ct. Op., Aug. 4, 2016, at 20-23.) The
trial court concluded further that the believable testimony of Lt. Hackett and Hynes
supported Kanofsky’s summary convictions, such that the summary convictions
did not “shock the conscience.”12 (Trial Ct. Op., Aug. 4, 2016, at 21-23.) In
reaching these conclusions, the trial court stated:
[Lt.] Hackett testified that: 1) the interior of the Property
was filled with a large amount of items; 2) there was
significant water damage to the interior of the Property;
3) the interior of the Property appeared unsafe; and 4) the
exterior brick walls were crumbling onto the sidewalk
below. Additionally, Hynes testified that: 1) the roof of
the Property was leaking and deteriorating the interior of
10
Kanofsky initially filed his appeals with the Pennsylvania Superior Court. By order
dated July 28, 2016, the Superior Court transferred the matters to this Court as this Court has
exclusive jurisdiction over the matters pursuant to Section 762(a)(4) of the Judicial Code, 42 Pa.
C.S. § 762(a)(4).
11
The trial court issued an initial 1925(a) opinion on July 25, 2016. In that opinion, the
trial court recommended that Kanofsky’s appeal be quashed because he failed to timely file a
statement of errors complained of on appeal (1925(b) statement). On August 4, 2016, however,
after receiving a copy of Kanofsky’s 1925(b) statement from the clerk of the criminal division,
the trial court issued a supplemental 1925(a) opinion, wherein the trial court addressed the merits
of Kanofsky’s arguments on appeal. All further references to the trial court’s 1925(a) opinion
will be to the supplemental 1925(a) opinion issued on August 4, 2016.
12
The trial court also concluded: (1) Kanofsky failed to preserve certain issues for
appellate review because such issues were difficult to discern from Kanofsky’s 1925(b)
statement and were merely narrative statements; and (2) more than half of Kanofsky’s issues
related to the trial court’s alleged failure to consider evidence that Kanofsky did not present at
the May 25, 2016 hearing.
7
the Property; 2) the bricks on the exterior of the south
facing wall of the Property were deteriorating and
crumbling; 3) vines were growing on the west side wall
of the Property, but they did not cause the damage to the
south facing wall of the Property; 4) Kanofsky had not
remediated the exterior brick problem since it was first
reported in February of 2014; 4) [sic] Kanofsky was
storing items inside the Property; and 5) [sic] Kanofsky
has not had a certificate of occupancy for the Property in
the past sixteen years. Kanofsky also testified at trial
and, to some extent, presented contradictory testimony.
Specifically, he testified that he made some
improvements to the Property following the
February 2014 inspection. However, Kanofsky also
testified that he did not comply with the October 2015
agreement to fix the exterior bricks, and acknowledged
that he stored items in the Property.
As demonstrated in [Commonwealth v.]
Blackham[, 909 A.2d 315 (Pa. Super. 2006), appeal
denied, 919 A.2d 954 (Pa. 2007)], the finder-of-fact is
free to believe or disbelieve both [Lt.] Hackett’s and
Hynes’s testimony. Here, the [trial] court, rather than a
jury, sat as the finder-of-fact. [The trial court] did not
find that the testimony of either [Lt.] Hackett or Hynes
was tenuous, vague, or uncertain. Instead, [the trial
court] found that both [Lt.] Hackett and Hynes testified
consistently, calmly, confidently, and presented logical
and clear testimony. Contrary to Kanofsky’s assertions,
[the trial court] found that the testimony of [Lt.] Hackett
and Hynes closely aligned, and supported the
Commonwealth’s version of events. Further, [the trial
court] did not find any evidence that either [Lt.] Hackett
or Hynes had a bias or motivation to testify untruthfully,
and therefore, [the trial court] did not weigh bias in [its]
credibility determination. Therefore, based upon their
testimony, as well as their body language in court, [the
trial court] determined that the testimony of [Lt.] Hackett
and Hynes was credible.
Kanofsky, however, did not testify credibly.
Kanofsky’s statements at trial were often contradictory
and illogical, and do not align with the errors he alleges
on appeal. For instance, Kanofsky admits that he agreed
8
to fix the Property’s exterior bricks during the winter
of 2015, but alleges through his [c]oncise [s]tatement [of
matters complained of on appeal] that it would have been
impossible to fix the exterior bricks during the winter.
Kanofsky did not offer any explanation as to why he
agreed to fix the exterior bricks during this time period if
he did not believe that it would be possible to do so.
Further, while Kanofsky alleges that the [trial] court
should have considered the damage the vines caused
when weighing the evidence, Hynes’s testimony,
bolstered by the actual citations, prove Kanofsky’s
arguments to be irrelevant and illogical as the citations do
not concern the wall where the vines are located. As a
whole, Kanofsky’s testimony appeared to be contrived
and untruthful, as demonstrated by Kanofsky’s body
language and mannerisms as he testified at trial.
(Trial Ct. Op., Aug. 4, 2016, at 20-23 (citations omitted).)
On appeal,13 Kanofsky appears to argue that the summary convictions
should be overturned because he was not responsible for the condition of and
damage to the Property and he had permission to store his personal items at the
Property.14 In response, the City argues that the trial court properly convicted
Kanofsky of violating Sections 304.1 and 304.6 of the IPMC and Section 403.46 of
the UCC because the evidence supporting such convictions was overwhelming.
13
In reviewing a summary conviction matter, where the trial court has taken additional
evidence in de novo review, our standard of review is limited to considering whether the trial
court abused its discretion or committed an error of law. Commonwealth v. Spontarelli,
791 A.2d 1254, 1255 n.2 (Pa. Cmwlth. 2002).
14
In the “Questions Asked” section of his brief, Kanofsky identifies fourteen issues for
consideration by this Court on appeal. The majority of Kanofsky’s issues, however, involve
matters that are irrelevant and in no way relate to this appeal and/or have no basis in the record.
As a result, such issues are not properly before this Court and will not be addressed in this
opinion.
9
In Commonwealth v. Spontarelli, 791 A.2d 1254 (Pa. Cmwlth. 2002),
we previously noted that “[i]n summary offense cases, the Commonwealth is
required to establish” guilt beyond a reasonable doubt. Spontarelli, 791 A.2d
at 1258. This Court views “all of the evidence admitted at trial, together with all
reasonable inferences therefrom, in the light most favorable to the
Commonwealth.” Id. “The test of sufficiency of evidence is whether the trial
court, as trier of fact, could have found that each element of the offenses charged
was supported by evidence and inferences sufficient in law to prove guilt beyond a
reasonable doubt.” Id. “As a reviewing court, this Court may not reweigh the
evidence and substitute our judgment for that of the fact-finder.” Commonwealth
v. Hoffman, 938 A.2d 1157, 1160 n.10 (Pa. Cmwlth. 2007). “[M]atters of
credibility and evidentiary weight are within the exclusive discretion of the
fact-finder below . . . .” Carr v. State Bd. of Pharmacy, 409 A.2d 941, 944
(Pa. Cmwlth. 1980). “[T]he fact-finder is free to believe all, part or none of the
evidence presented.” Hoffman, 938 A.2d at 1160 n.10.
Here, the trial court concluded that the City had met its burden of
proof and found Kanofsky guilty of two offenses of failure to obtain a certificate of
occupancy in violation of Section 403.46 of the UCC, one offense of failure to
make required repairs to loose and cracked materials on the Property’s exterior
structure in violation of Section 304.6 of the IPMC, and one offense of failure to
correct violations related to the Property’s exterior structure in violation of
Section 304.1 of the IPMC. In reaching this conclusion, the trial court found
Lt. Hackett’s and Hynes’s testimony to be credible and Kanofsky’s testimony to be
not credible. Lt. Hackett’s and Hynes’s credible testimony supports the trial
court’s conclusions in this matter. By arguing that the summary convictions
10
should be overturned because he was not responsible for the condition of and
damage to the Property and he had permission to store his personal items at the
Property, Kanofsky is essentially asking this Court to adopt his preferred version of
events and, in so doing, to reweigh the evidence and make different credibility
determinations. This we cannot and will not do. See Hoffman,
938 A.2d at 1160 n.10.
Accordingly, we affirm the trial court’s orders.
P. KEVIN BROBSON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. : No. 1523 C.D. 2016
: No. 1524 C.D. 2016
Alvin S. Kanofsky, : No. 1525 C.D. 2016
Appellant :
ORDER
AND NOW, this 11th day of August, 2017, the orders of the Court of
Common Pleas of Northampton County are hereby AFFIRMED.
P. KEVIN BROBSON, Judge