City of Philadelphia v. DY Properties, LLC ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. :
:
DY Properties, LLC, : No. 132 C.D. 2019
Appellant : Argued: November 12, 2019
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: December 12, 2019
DY Properties, LLC (DY) appeals from the Philadelphia County
Common Pleas Court’s (trial court) December 20, 2018 order issuing a stop work
order, granting a final injunction and imposing a statutory fine for violations of The
Philadelphia (City) Code (Code). There are four issues for this Court’s review: (1)
whether DY waived constitutional and evidentiary arguments by failing to appear
before the trial court and present arguments; (2) whether the fine was excessive in
violation of the United States and Pennsylvania Constitutions; (3) whether the trial
court abused its discretion by imposing the fine; and (4) whether the trial court’s
opinion reflects bias or partiality. After review, we affirm.
In July 2017, DY purchased the property located at 3325 North 9th
Street in the City (Property) at sheriff’s sale. On April 13, 2018, the City’s
Department of Licenses and Inspections (Department) inspector Martin Raudenbush
(Raudenbush) inspected the Property and identified Code violations that included:
DY’s lack of a vacant property license;1 combustible waste accumulation on the
1
Section 9-3905(1) of the Code provides:
exterior of the building; combustible debris accumulation in the building’s interior;
an inoperable sprinkler system; lack of certification evidencing that the fire
suppression system was tested and in good working order; and missing downspouts.
On April 17, 2018, the Department issued an Initial Notice of Violation and Order,
case number 629052 (April Violation Notice), listing the aforementioned violations
and directing that they be corrected.2 DY did not appeal from the April Violation
Notice.
On May 24, 2018, Raudenbush reinspected the Property and, on May 28,
2018, issued a final warning (Final Warning) to DY because the violations had not
been corrected. Raudenbush also discovered that the Property was now occupied by
an auto repair shop. Raudenbush reinspected the Property on May 26, 2018, and
issued a second final warning as it remained in violation of the Code, case number
636058 (May Violation Notice),3 for DY’s failure to obtain a use registration permit
and a certificate of occupancy for the auto repair shop. Raudenbush also delivered a
Notice of Intent to Cease Operations and Order (Notice of Intent) unless the
violations were corrected by July 3, 2018. DY did not appeal from the May Violation
Notice and did not respond to the Notice of Intent. On July 3, 2018, the Department
issued a cease operations order (Cease Operations Order) and posted it on the
Property. On July 17, 2018, Raudenbush conducted a follow-up inspection of the
The owner of any structure that lacks the habitual presence of human
beings who have a legal right to be on the premises, or at which
substantially all lawful business or construction operations or
residential occupancy has ceased within the past three (3) months,
shall obtain a Vacant Structure License.
Phila., Pa., Code § 9-3905(1) (2015).
2
The April Violation Notice was addressed to two different record owners, one of whom
was Yoret Meir, also known as Yosef Meir, DY’s owner.
3
There is no Initial Notice of Violation and Order in the Reproduced Record for case
number 636058.
2
Property to determine whether DY complied with the Cease Operations Order.
Raudenbush observed that the loading dock door was open, and individuals were
performing automobile tire changes and wheel work. Raudenbush posted another
Cease Operations Order notice.
On August 22, 2018, the City filed a complaint with a proposed rule to
show cause and proposed order of a permanent injunction (Complaint) in the trial
court seeking an order directing DY to correct all violations4 and imposing fines for
past and ongoing violations and statutory reinspection fees.5 On October 11, 2018,
the trial court held a hearing, at which DY’s owner Yoret Meir, also known as Yosef
Meir (Meir), appeared and accepted service on DY’s behalf. The trial court
continued the hearing until December 20, 2018, and a new hearing notice was issued
to the parties. DY did not file an answer to the Complaint.
On December 20, 2018, the trial court held the scheduled injunction
hearing. However, neither Meir nor any other DY representative appeared. DY’s
tenant, Nicholas Adeleye (Adeleye) attempted to participate in the hearing; however,
upon the City’s objection, the court informed Adeleye that he did not have standing
to do so. Thereafter, the City presented Raudenbush’s testimony regarding his
inspections of the Property and the violations he observed. He also described that, on
November 21, 2018, long after the Cease Operations Order had been posted, while
performing an inspection next door to the Property, Raudenbush again observed
individuals performing tire changes at the Property. He required all individuals to
vacate the Property. Finally, Raudenbush testified that the violations had not been
4
The Complaint and proposed order did not include the use permit violation contained in the
May Violation Notice because, (although not of record) according to the City, DY obtained a use
permit before the City filed the Complaint.
The City contends that DY was required to obtain a vacant property license because DY did
not have an occupancy permit and, thus, the tenant’s occupancy was illegal.
5
Notably, DY’s Code violations continued even after the City filed the Complaint.
3
corrected; specifically, DY had not obtained a certificate of occupancy, the
combustible material had not been removed from the Property, and the sprinkler
system was not operational.
The City asked the trial court to order that the violations be corrected
and that the Property remain vacant until DY complied. The City also requested fines
totaling $243,200.00. The City explained that, of the total fine, $133,000.00
represented the $150.00 daily fine for each of the five violations6 referenced in the
April Violation Notice for 75 days, plus a fine of $1,000.00 per day for violating
Section F-915.1 of the Code7 (pertaining to testing and certification of the fire
suppression system). The remaining $110,200.00 of the fine consisted of a $2,000.00
per day fine for DY’s ongoing failure to obtain a certificate of occupancy as the May
Violation Notice mandated.8 Because DY did not attend the hearing, it did not
challenge the City’s calculations, claim that the City’s request was excessive, or
otherwise oppose the fine. By December 20, 2018 order, the trial court granted the
City’s requested relief.
On January 9, 2019, counsel for DY entered his appearance and filed a
motion for reconsideration (Reconsideration Motion), wherein DY averred, inter alia,
that: Raudenbush inspected the Property on December 19, 2018; Raudenbush saw the
6
At the time the City filed the Complaint, Section A-601.1 of the Code provided:
Any person who shall violate any provision of this [C]ode or the
technical codes or regulations adopted thereunder; or who shall fail to
comply with any order issued pursuant to any section thereof . . . shall
be subject to a fine of not less than $150.00 and not more than
$300.00 for each offense.
Phila., Pa., Code § A-601.1.
7
Pursuant to Section A-601.2 of the Code, a violation of Section F-915 of the Code is a
Class II offense. Section 109(2) of the Code provides for a maximum $1,000.00 fine for each Class
II offense committed on or after January 1, 2006.
8
Section A-601.3 of the Code provides that a violation of Section A-701 of the Code is a
Class III offense. Section 1-109(3)(e) of the Code provides for a maximum $2,000.00 fine for each
Class III offense committed on or after January 1, 2009.
4
permits issued for the electrical work (issued October 12, 2018) and fire suppression
system (issued December 18, 2018), and informed Adeleye that he would request a
continuance of the December 20, 2018 hearing; the City did not request the
continuance; and DY did not attend the hearing because the hearing was to be
continued. DY also argued that the fine was excessive. DY attached copies of the
permits and Adeleye’s affidavit describing the inspector’s representation as exhibits
to the Reconsideration Motion. The City asserted in its response to the
Reconsideration Motion (Response) that the permits were not in evidence, and denied
that Raudenbush told Adeleye the hearing would be continued, that the City would
request a continuance, or otherwise stated that DY should not attend the hearing. The
City attached Raudenbush’s affidavit to its Response.
On January 22, 2018, the trial court held a hearing on the
Reconsideration Motion, at which both Adeleye and Raudenbush testified.9
Thereafter, the trial court denied the Reconsideration Motion from the bench. DY
appealed to this Court.10
Before addressing DY’s arguments on appeal, this Court must consider
the City’s contention that DY waived all issues by failing to appear and raise them at
the December 20, 2018 trial court hearing.11
9
The original record does not contain a transcript of the hearing on the reconsideration
motion.
10
“[W]hen reviewing the grant or denial of a final or permanent injunction, an appellate
court’s review is limited to determining whether the trial court committed an error of law.” Buffalo
Twp. v. Jones, 813 A.2d 659, 663-64 (Pa. 2002). Further, “[w]hether a fine is excessive under our
Constitution is a question of law, therefore our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1279 (Pa. 2014).
11
DY does not dispute that it received notice of the hearing but, rather, contends that
Raudenbush informed Adeleye that he would request a continuance and, therefore, DY’s absence
should be excused. Both Raudenbush and Adeleye testified at the Reconsideration Motion hearing
about Raudenbush’s purported representations to Adeleye. The trial court as factfinder considered
the testimony, evaluated the witnesses’ credibility and denied the Reconsideration Motion.
Notably, “the purpose of post-trial motions is for the court to correct its own errors, not for parties
to remedy their own mistakes.” Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 263 (Pa.
5
“‘[T]o preserve an issue for appeal, a litigant must make a timely,
specific objection at trial and must raise the issue on post-trial motions.’ Issues not
preserved for appellate review cannot be considered by this Court, even if the alleged
error involves ‘a basic or fundamental error.’” Mun. Auth. of the Borough of Midland
v. Ohioville Borough Mun. Auth., 108 A.3d 132, 136-37 (Pa. Cmwlth. 2015) (original
emphasis omitted) (quoting Dennis v. Se. Pa. Transp. Auth., 833 A.2d 348, 352 (Pa.
Cmwlth. 2003)). Failure to appear at a hearing may result in a waiver of all
arguments for appeal. See City of Phila. v. Frempong, 762 A.2d 395, 397 (Pa.
Cmwlth. 2000) (Where appellants failed to attend the hearing, the trial court issued a
permanent injunction directing the removal of a commercial truck from a residential
property. On appeal, this Court affirmed concluding that “[a]ppellants’ failure to
attend the hearing and raise issues that could be heard on appeal is fatal to their
claim.”). Specifically, the Pennsylvania Supreme Court has found an excessive fines
Super. 2015); see also Paparelli v. GAF Corp., 549 A.2d 597 (Pa. Super. 1988). This Court has
explained:
An order denying reconsideration is unreviewable on appeal. See
Huntington Nat. Bank v. K-Cor, Inc., 107 A.3d 783, 787 (Pa. Super.
2014) (‘Pennsylvania case law is absolutely clear that the refusal of a
trial court to reconsider, rehear, or permit reargument of a final decree
is not reviewable on appeal.’); see also Rabatin v. Allied Glove Corp.,
24 A.3d 388, 391 (Pa. Super. 2011) (noting that issues not raised
before the trial court are not preserved for appeal, and issues raised in
motions for reconsideration are beyond the jurisdiction of th[e]
[c]ourt). Further, a trial court may also properly refuse to consider
new evidence presented for the first time in a motion for
reconsideration. See Kelly v. Siuma, 34 A.3d 86, 94 n.8 (Pa. Super.
2011).
Bollard & Assocs. v. H & R Indus., Inc., 161 A.3d 254, 256 (Pa. Super. 2017) (emphasis added); see
also, Fullman v. Bureau of Admin. Adjudication (Pa. Cmwlth., No. 975 C.D. 2018, filed April 30,
2019). Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), unreported opinions are not binding precedent, but may be cited for their persuasive
value. Fullman is cited herein for its persuasive value. Accordingly, this Court may not review the
trial court’s order denying reconsideration.
6
challenge is waived where the issue was not raised before an administrative tribunal.
See HIKO Energy, LLC v. Pa. Pub. Util. Comm’n, 209 A.3d 246 (Pa. 2019). This
Court has also previously found waiver of excessive fine allegations where such
allegations were not raised before the trial court. See Commonwealth v. Dennis (Pa.
Cmwlth., No. 1873 C.D. 2013, filed October 9, 2014); see also In re: 1448 W.
Loudon St. (Pa. Cmwlth., No. 201 C.D. 2012, filed August 19, 2013); Commonwealth
v. 928 W. Lindley Ave, Phila., Pa. (Pa. Cmwlth., No. 766 C.D. 2012, filed May 2,
2013).
This Court has previously held that where an issue which
could have been raised earlier is raised for the first time
in a motion for reconsideration, it is not preserved for
appellate review. See Bedford Downs M[gmt.] Corp[.] v.
State Harness Racing Comm[’n], . . . 926 A.2d 908, 924
([Pa.] 2007) (‘[I]ssues raised for the first time in a
reconsideration request, after the agency has issued its
adjudication, cannot be regarded as raising the issues while
the matter was before the agency.’); Ramsey v. P[a.] Milk
M[ktg.] B[d.], . . . 572 A.2d 21, 25 ([Pa. Cmwlth.] 1990);
Frankford Hosp[.] v. Dep[’t] of Pub[.] Welfare, . . . 466
A.2d 260, 262 ([Pa. Cmwlth.] 1983); see also Rabatin v.
Allied Glove Corp[.], . . . 24 A.3d 388, 391 ([Pa. Super.]
2011) (‘While the issue was included in the subsequently
filed motion for reconsideration, issues raised in motions
for reconsideration are beyond the jurisdiction of this Court
and thus may not be considered by this Court on appeal.’).
Lin v. Bd. of Revision of Taxes of the City of Phila., 137 A.3d 637, 643 (Pa. Cmwlth.
2016) (emphasis added).
In the instant action, DY did not appear at the December 20, 2018 trial
court hearing. Had it done so, it could have opposed the City’s requested fines as
excessive. “Issues not raised at the earliest possible time during a proceeding are
waived.” Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa.
Cmwlth. 2010), superseded on other grounds by Pa.R.A.P. 1513(d), as recognized in
Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181 (Pa. Cmwlth. 2015).
7
Because DY failed to appear at the hearing and challenge the City’s request for the
$243,200.00 fine as constitutionally excessive, DY did not raise the issue “at the
earliest possible time during [the] proceeding[.]” Id. Accordingly, because DY
raised the issue for the first time in the Reconsideration Motion, it was not preserved
for appellate review, and this Court may not now address it.12
12
Even if DY had not waived the excessive fines argument, this Court would find that the
fines were constitutional. The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed . . . .” U.S. Const. amend. VIII.
The Pennsylvania Constitution similarly provides: “Excessive bail shall not be required, nor
excessive fines imposed . . . .” Pa. Const. art. I, § 13. A fine is excessive “if it is grossly
disproportional to the gravity of a defendant’s offense.” U.S. v. Bajakajian, 524 U.S. 321, 334
(1998). The Pennsylvania Supreme Court has explained:
[T]he primary purpose of a fine or a penalty is twofold[:] to punish
violators and to deter future or continued violations. Since it serves
not only as a punishment but also as a deterrent, the amount of the
fine can be raised to whatever sum is necessary to discourage future
or continued violations, subject, of course, to any restriction imposed
on the amount of the fine by the enabling statute or the Constitution.
Eisenberg, 98 A.3d at 1283 (quoting Commonwealth v. Church, 522 A.2d 30, 34 (Pa. 1987)). Thus,
a fine must be “reasonably proportionate to the crimes which occasion them.” Eisenberg, 98 A.3d
at 1287. However, “[the Pennsylvania Supreme Court] and the Commonwealth Court have rejected
the notion that there must be strict proportionality between the harm resulting from the offense and
the penalty imposed.” Eisenberg, 98 A.3d at 1281.
In Eisenberg, the Court found that the $75,000.00 fine imposed for a misdemeanor theft of
$200.00 was constitutionally excessive. Id. at 1287. Citing to Church and two Commonwealth
Court cases, Eckhart v. Department of Agriculture, 8 A.3d 401 (Pa. Cmwlth. 2010), and
Commonwealth v. CSX Transportation, Inc., 653 A.2d 1327 (Pa. Cmwlth. 1995), the Eisenberg
Court distinguished the fines imposed therein, explaining:
In Church, overweight vehicles were fined on a sliding scale per
pound over the weight limit. In Eckhart, the appellant kennel
operator had committed numerous infractions incurring a fine amount
in excess of $150,000[.00] based on a $100[.00]-$500[.00] per
dog/per day penalty scheme, $15,000[.00] of which appellant
claimed was excessive in light of perceived triviality of the offense.
In CSX, the appellant’s train car leaked enough corn syrup into the
Youghiogheny River to kill approximately 10,000 fish, and thus
appellant incurred a roughly $100,000[.00] fine, based on a $10[.00]
per fish calculation.
Eisenberg, 98 A.3d at 1287 n.24.
8
DY contends that the trial court abused its discretion by granting the
injunction13 and imposing the fine. Since DY’s abuse of discretion argument pertains
to the trial court’s decision and could not have been raised until after the trial court
rendered it, that argument was not waived.
This Court has ruled that “[a] trial court abuses its discretion if, in
reaching a conclusion, the law is overridden or misapplied or judgment exercised is
manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will. An
abuse of discretion is not merely an error of judgment.” In re Ten Thousand Six
Hundred Eighty Dollars, 728 A.2d 403, 406 (Pa. Cmwlth. 1999) (citation omitted).
Section A-601 of the Code specifies penalties for Code violations.
When the City filed its Complaint, Section A-601.1 of the Code provided for basic
fines ranging between $150.00 and $300.00 for each offense. Sections 601.2 and
601.3 of the Code describe violations constituting Class II and Class III offenses, and
Here, the fines issued against DY were similarly imposed per day based upon repeated daily
violations of numerous Code provisions. The violations pertained to potentially hazardous
conditions on the Property which remained for approximately eight months, despite City demands
to remediate. Thus, the significant fine was an accumulation of penalties arising solely from DY’s
repeated and ongoing failure to correct the violations.
13
Although DY asserts in the Argument portion of its brief that “[t]here was an adequate
remedy at law, and the issuance of the injunction and fine were an abuse of discretion,” DY’s
Statement of Questions Involved makes no reference to the propriety of the trial court’s grant of the
injunction or whether the City had an adequate remedy at law. DY Br. at 10 (bold emphasis
omitted, italic emphasis added). Rather, DY’s Statement of Questions Involved pertaining to the
trial court’s purported abuse of discretion states: “Did the [trial court] abuse [its] discretion by
imposing a fine of such magnitude, given that the underlying statute has a range, and that a permit
was active, and [Adeleye] was present at the hearing?” DY Br. at 2. “Issues not included in the
Statement of Questions [Involved] are waived and need not be considered by the Court even if they
are addressed in the argument section of the brief.” Kalmeyer v. Mun. of Penn Hills, 197 A.3d
1275, 1279 n.1 (Pa. Cmwlth. 2018) (emphasis added); see also Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the [S]tatement of [Q]uestions [I]nvolved or is fairly
suggested thereby.”). Accordingly, that argument is waived.
This Court notes that because the trial court’s opinion issued pursuant to Pennsylvania Rule
of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), relied on DY’s Statement of Questions
Involved, it did not discuss the basis for the trial court’s grant of the permanent injunction.
9
mandate that such violations shall be “subject to the maximum fine set forth in
subsection[s]” 1-109(2) and 109(3) [of the Code], respectively. Phila., Pa., Code
§§ A-601.2, A-601.3 (emphasis added). Section A-601.4 of the Code further states:
“Each day that a violation continues after issuance of a notice or order shall be
deemed a separate offense.” Phila., Pa., Code § A-601.4. Section 109(2) of the Code
provides for a maximum $1,000.00 fine for each Class II offense committed on or
after January 1, 2006. Section 1-109(3)(e) of the Code provides for a maximum
$2,000 fine for each Class III offense committed on or after January 1, 2009.
Here, the evidence before the trial court established that, from April 13,
2018 to December 20, 2018, the Department attempted numerous times to require DY
to remediate its violations, which included an inoperable fire suppression system and
accumulations of combustible material. Despite the issuance of the April Violation
Notice, DY permitted Adeleye to occupy the Property. Even after the Department
issued the May Violation Notice, and in July, subsequently posted the Cease
Operations Order notice, Adeleye continued to operate the auto repair business at the
Property, such that Raudenbush (who, by happenstance, observed the business still
operating) was forced to order those present to vacate the Property.
Because DY did not appeal from the April Violation Notice or the May
Violation Notice14 or answer the Complaint, all of the City’s allegations against DY
14
DY argues that, since Adeleye was responsible for some of the violations of use, he
should have been granted standing at the hearing. DY further contends that the imposition of the
fines is unfair since Adeleye’s violations were included in DY’s fines. However, the fines were
issued resulting from the unappealed April Violation Notice and May Violation Notice. Had DY
appealed from those notices, it could have argued that Adeleye, rather than DY was responsible. It
did not do so. Further, Section A-105.2 the Code, cited by DY, provides:
If an occupant of a structure creates conditions in violation of this
[C]ode or the technical codes, by virtue of any improper use of the
premises or by virtue of storage, handling and use of substances,
materials, devices and appliances, the occupant shall be responsible
for the abatement of said hazardous condition.
10
were deemed admitted. See Reproduced Record at 92a. Thus, it is undisputed that
DY violated the Code. Moreover, the trial court imposed fines in accordance with the
aforementioned Code sections. Although this Court agrees that the trial court’s fine
was significant, the fine was the direct result of DY’s ongoing violations and failure
to remediate. This Court discerns no abuse of discretion.15
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
Phila., Pa., Code § A-105.2 (emphasis added). Notably, since the violations described in the April
Violation Notice and the May Violation Notice pertained to conditions that were documented prior
to Adeleye’s occupancy, Adeleye did not “create[ the violative] conditions.” Id.
15
In its brief, DY argues that this Court should “reverse and vacate the [trial court’s
December 20, 2018 order] . . . and remand to the [trial court] with instructions on how to proceed.”
DY Br. at 19. DY also asserts that the trial court’s opinion reveals “partiality and bias sufficient
that[,] on remand, a new judge [should] be assigned[.]” Id. at 3. Since this Court herein affirms the
trial court’s decision, this Court denies DY’s request. Notwithstanding, we note that “[a] motion for
recusal must be raised in the first instance with the trial court, who must always be given the
opportunity to act on the request in the first instance.” Brannam v. Reedy, 906 A.2d 635, 642 (Pa.
Cmwlth. 2006). There is nothing in the record reflecting that DY has ever moved the trial court
judge for recusal, nor does DY assert in its brief that it did so.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. :
:
DY Properties, LLC, : No. 132 C.D. 2019
Appellant :
ORDER
AND NOW, this 12th day of December, 2019, the Philadelphia County
Common Pleas Court’s December 20, 2018 order is affirmed.
___________________________
ANNE E. COVEY, Judge