Com. of PA, City of Reading, PA Property Maintenance/Building Codes v. R.G. Gehring ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
City of Reading, Pennsylvania :
Property Maintenance/Building Codes :
:
v. :
: No. 1865 C.D. 2017
Raymond G. Gehring, : Nos. 1933, 1934, 1935, 1936 C.D. 2017
Appellant : Submitted: August 3, 2018
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 26, 2018
Raymond G. Gehring (Gehring) appeals, pro se, from the Berks County
Common Pleas Court’s (trial court) November 15, 2017 orders finding Gehring guilty
of five summary offenses for violating the Property Maintenance Code of City of
Reading (Reading), Pennsylvania (Code). Essentially, Gehring presents two issues
for this Court’s review: (1) whether Reading proved that Gehring received notice of
the violations before he received the citations therefor; and, (2) whether Gehring was
given a fair and impartial hearing.1 After review, we vacate and remand.
Gehring owns property located at 1043 Cotton Street in Reading,
Pennsylvania (Property). On February 11, 2017, Reading Code Enforcement Officer
Bruce McAfee (McAfee) visited the Property and observed a violation of Section
1
Gehring presented six issues for this Court’s review, all of which either restate the above
issues or are subsumed in the above-stated issues. See Gehring Br. at 4. Reading contends that two
of the six questions Gehring presented, i.e., relating to “substantial question” and “cover-up”, are
waived for various reasons. Reading Br. at 13 n.3. As this Court does not decide either of those
issues, we need not address waiver.
301.3.1 of the Code (related to exterior conditions), and a violation of Section
304.13.1 of the Code (related to windows). McAfee issued citations for the violations
at that time. On April 13, 2017, McAfee again visited the Property and observed
continuing violations of Sections 301.3.1 and 304.13.1 of the Code, and a violation of
Section 304.2 of the Code (related to protective treatment of exterior surfaces).
McAfee issued citations for the violations at that time. Gehring appealed from the
citations to the trial court. On November 15, 2017, the trial court held a de novo
hearing and, at the conclusion thereof, found Gehring guilty of all five violations.
Gehring appealed to this Court.2
Initially, Section 106.1 of the Code provides: “It shall be unlawful for a
person, firm or corporation to be in conflict with or in violation of any of the
provisions of this [C]ode.” Reading Code §106.1. Section 106.2 of the Code
requires: “The [C]ode official shall serve a notice of violation or order in
accordance with Section 107 [of the Code].” Reading Code § 106.2 (emphasis
added). Section 107.1 of the Code prescribes:
Whenever the [C]ode official determines that there has been
a violation of this [C]ode or has grounds to believe that a
violation has occurred, notice shall be given in the
manner prescribed in Sections 107.2 and 107.3 [of the
Code] to the person responsible for the violation as
specified in this [C]ode.
Reading Code § 107.1 (emphasis added).3 Section 107.2 of the Code mandates:
Such notice prescribed in Section 107.1 [of the Code] shall
be in accordance with all of the following:
1. Be in writing.
2
This Court’s standard of review “of a trial court’s determination on appeal from a summary
conviction is limited to whether there has been an error of law or whether competent evidence
supports the trial court’s findings.” Commonwealth v. Hall, 692 A.2d 283, 284 n.2 (Pa. Cmwlth.
1997).
3
Section 107.1 of the Code contains exceptions which are not relevant to the instant matter.
2
2. Include a description of the real estate sufficient for
identification.
3. Include a statement of the violation or violations and
why the notice is being issued.
4. Include a correction order allowing a reasonable
time to make the repairs and improvements required
to bring the dwelling unit or structure into compliance with
the provisions of this [C]ode.
5. Inform the property owner of the right to appeal as per
Section 111.1 [of the Code].
6. Include a statement of the right to file a lien in
accordance with Section 106.3 [of the Code].
Reading Code § 107.2 (italic and bold emphasis added). Finally, Section 107.3 of the
Code directs:
Such notice shall be deemed to be properly served if a
copy thereof is:
1. Delivered personally;
2. Sent by certified/first-class mail or email addressed to
the last known address; or
3. If the notice is returned showing that the letter was not
delivered, a copy thereof shall be posted in a conspicuous
place in or about the structure affected by such notice.
4. Service upon any executive officer of
a corporation shall be a sufficient, but not the exclusive
method of service upon the corporation. Service upon any
partner of a partnership shall be a sufficient but not the
exclusive method of service upon the partnership.
Reading Code § 107.3 (emphasis added).
Gehring argues that Reading never provided notice of the violations
before issuing the citations to him. Representing himself at the hearing, Gehring
attempted to cross-examine McAfee concerning notice.
3
Q [Gehring] . . . . [] McAfee, you stated that you issued a
citation back in 2015, or maybe several.
A [McAfee] I did not say that I issued a citation. I said you
were given notice that it started back in 2015.
Q Notice. Okay. Please forgive me on that. Were you the
one actually doing the notice?
A In 2015, no. It’s a system.
Q Okay. Who did - - -
THE COURT: We’re not here on what happened in 2015.
We’re here on what happened in 2017.
[] GEHRING: Your Honor - - -
THE COURT: He doesn’t have to testify to anything that
happened in 2015 because that’s not -- the citations weren’t
issued then. We’re talking about the citations that were
entered in 2017. I don’t care if you were given a warning or
not.
[] GEHRING: He states that there was a notice given in
2015 - - -
THE COURT: And I don’t care whether it was or not. It
has nothing to do with today.
[] GEHRING: I think it does, Your Honor, if notice was
never received, is what I’m trying to get at.
THE COURT: It doesn’t matter. You’re still in violation.
The [Code] is pretty clear, and nowhere in here does it say
you have to be given a notice first before you’re cited.
[] GEHRING: It says on the citations, Your Honor, that
there was notice given back in 2015.
THE COURT: I don’t care whether the notice was given or
not. He didn’t give the notice. He said that. He said it was
generated through the system, so - - -
BY [] GEHRING:
Q Who does these notices?
4
THE COURT: The system. It generates it, and it’s mailed
out. So maybe you don’t pick up the mail at that location. I
don’t know. But let’s talk about the violations.
[] GEHRING: Well, Your Honor - - -
THE COURT: Don’t argue with me. I’m telling you, let’s
talk about the violations, so move onto the violations.
[] GEHRING: I never received those notices, Your Honor,
but - - -
THE COURT: And you can testify - - -
[] GEHRING: Okay.
THE COURT: - - - when it’s your turn.
[] GEHRING: Okay.
THE COURT: Right now ask him questions. He’s already
said he didn’t do the notices personally, they were
generated through the system.
[] GEHRING: Okay.
THE COURT: So that’s where we are with the notices.
[] GEHRING: All right.
Notes of Testimony November 15, 2017 (N.T.) at 13-15.
However, in its opinion, the trial court acknowledged that it was
incorrect with respect to notice:4
Upon further review, however, that statement about the
[Code] is not entirely correct. The Code does at base
provide that a state of being in violation is by itself illegal:
‘It shall be unlawful for a person, firm or corporation to be
in conflict with or in violation of any of the provisions of
this [C]ode.’ [Reading Code] § 106.1. But the Code also
clearly contemplates the issuance of notices of violation.
See id. at § 106.2 (The [C]ode official shall serve a notice of
violation or order in accordance with Section 107 [of the
4
Although Judge Jill Gehman Koestel presided over the hearing, Judge Madelyn S.
Fudeman authored the opinion.
5
Code].): id. at § 107.1 (‘Whenever the [C]ode official
determines that there has been a violation of this [C]ode or
has grounds to believe that a violation has occurred, notice
shall be given in the manner prescribed in Sections 107.2
and 107.3 [of the Code] to the person responsible for the
violation as specified in this [C]ode.’); id. at § 107.2
(providing that the notice must ‘[i]nclude correction order
allowing a reasonable time to make the repairs and
improvements required to bring the dwelling unit or
structure into compliance’). And of most direct relevance
here is the section titled ‘Prosecution of violation[ ]’ which
provides that ‘[a]ny person failing to comply with a notice
of violation or order served in accordance with Section 107
[of the Code] shall be deemed guilty of a summary offense
and the violation shall be deemed a strict liability offense.’
Id. at § 106.3. So the summary offenses with which
[Gehring] was charged are specifically defined as receiving
notices of violation and then not correcting the defects as
instructed therein.
Trial Court Op. at 4-5.5 Notwithstanding, the trial court concluded:
Finding [Gehring] guilty without more conclusive evidence
that the notices were indeed mailed is tantamount to
harmless error for at least two reasons. First, truly
concrete, direct evidence the notices were mailed would
be difficult or perhaps impossible to adduce. The notices
are apparently governed by a system with some level of
automation (‘Were you the one actually doing the notices?
A: In 2015, no. It’s a system.’ ([N.T. at 14])), and even
though a specific person is involved in the mailing (‘Does
the system show who actually mailed the notice? A: It
should be in there. Yes.’ ([N.T. at 16])), it is unlikely the
person who did the mailing would have a specific
recollection of sending out the notices at issue in this case.
Second, testimony established that [Gehring] did
actually know that he was in violation for a long period of
time during which he failed to remedy the condition of the
[P]roperty. [Gehring] himself testified about the windows
being broken by gun battles in 2015 and also stated that he
spoke to someone with [Reading] named Dana Damato ‘in
January of 2017, prior to all these citations’ ([N.T. at 32]).
5
There were five identical trial court opinions filed in this matter, one for each summary
offense.
6
And in light of [] McAfee’s testimony about viewing the
[P]roperty not only on the dates of violation but again the
day before the summary appeal hearing. [Gehring] agreed
there was ‘no dispute’ that the [P]roperty was in violation
on the violation dates and still as of the summary appeal
hearing ([N.T. at 34]). So whether or not there is absolute
evidence that the specific notices were mailed, there is
evidence that [Gehring] knew about the conditions in
violation for an extremely long period without correcting
the violations.
Trial Court Op. at 5-6 (emphasis added). This Court cannot agree that finding
Gehring guilty without evidence that he received notice in accordance with the
Code’s mandates and had an opportunity to bring the Property into compliance as the
Code directs is harmless error.
As explained in Commonwealth v. ATL Associates (Pa. Cmwlth. No.
1374 C.D. 2015, filed August 19, 2016):6
When a borough chooses to regulate by ordinance, it must
comply with its provisions. See generally Philipsburg v.
Way, 12 Pa.D. 173, 174 (1903) . . . . Failure to do so
deprives the borough of legal authority to exercise
jurisdiction over the property or the property owner. Id.[;
s]ee also Moon [Twp.] v. Cammel, 687 A.2d 1181, 1186
(Pa. Cmwlth. 1997) (noting that district justice properly
dismissed enforcement citations because property owner
was not given opportunity to comply with ordinance before
being cited); [Twp.] of Maidencreek v. Stutzman, 642 A.2d
600, 602 (Pa. Cmwlth. 1994) (holding that failure of
township to satisfy notice requirements of the
Municipalities Planning Code[, Act of July 31, 1968, P.L.
805, as amended, 53 P.S. §§ 10101-11202,] rendered the
trial court’s preliminary injunction a nullity).
ATL Assocs., slip op. at 8 (footnote omitted). Here, Section 107.1 of the Code
requires that “notice shall be given in the manner prescribed in Sections 107.2 and
6
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), this unreported opinion is not binding precedent but is cited only for its persuasive value,
as the same rationale clearly applies herein.
7
107.3 [of the Code.]” Reading Code § 107.1. The fact that “truly concrete, direct
evidence the notices were mailed would be difficult or perhaps impossible to
adduce[,]” or that “testimony established that [Gehring] did actually know that he
was in violation[,]” does not relieve Reading from complying with the Code’s notice
requirements. Trial Court Op. at 5-6. Accordingly, because the trial court precluded
questioning on the notice issue, and the record is void of any evidence demonstrating
notice was furnished as the Code prescribed, this Court is constrained to remand the
matter to the trial court for the limited purpose of determining whether Reading
satisfied the notice requirements mandated in Sections 107.2 and 107.3 of the Code
before the subject citations were issued.7
In its brief, Reading requests this Court to remand the matter to the trial
court to assess attorney’s fees against Gehring, pursuant to Pennsylvania Rule of
Appellate Procedure (Rule) 2744, for filing a frivolous appeal. See Reading Br. at
19-23. Rule 2744 provides:
In addition to other costs allowable by general rule or Act
of Assembly, an appellate court may award as further costs
damages as may be just, including
(1) a reasonable counsel fee and
(2) damages for delay at the rate of 6% per annum in
addition to legal interest,
if it determines that an appeal is frivolous or taken solely
for delay or that the conduct of the participant against
whom costs are to be imposed is dilatory, obdurate or
vexatious. The appellate court may remand the case to the
trial court to determine the amount of damages authorized
by this rule.
7
Because the Court is remanding the case for a hearing on the notice issue, it need not
address Gehring’s second issue, as it was based on Gehring’s preclusion from cross-examining
McAfee regarding notice.
8
Pa.R.A.P. 2744. Given this Court’s disposition of the above issue, this Court
disagrees with Reading that Gehring’s appeal is frivolous. Moreover, given the trial
court’s alternative request for a remand on the notice issue, Reading’s contention that
Gehring’s appeal is frivolous is meritless. See Trial Court Op. at 1, 6. Accordingly,
this request is denied.
For all of the above reasons, the trial court’s order is vacated and the
matter is remanded to the trial court for a hearing on the notice issue.
__________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
City of Reading, Pennsylvania :
Property Maintenance/Building Codes :
:
v. :
: No. 1865 C.D. 2017
Raymond G. Gehring, : Nos. 1933, 1934, 1935, 1936 C.D. 2017
Appellant :
ORDER
AND NOW, this 26th day of October, 2018, the Berks County Common
Pleas Court’s November 15, 2017 orders are vacated, and the matter is remanded to
the trial court for a hearing consistent with this opinion.
Jurisdiction is relinquished.
___________________________
ANNE E. COVEY, Judge