Troiani Group & Troy Dev. Assocs., L.P. v. City of Pittsburgh Bd. of Appeals, & City of Pittsburgh ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P. :
:
v. :
:
City of Pittsburgh Board of Appeals, :
and City of Pittsburgh, : No. 1127 C.D. 2021
Appellants : Argued: February 7, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: March 21, 2022
The City of Pittsburgh (City) Board of Appeals (Board) and the City
(collectively, Appellants) appeal from the Allegheny County Common Pleas Court’s
(trial court) September 7, 2021 order reversing the Board’s July 26, 2021 decision
(Decision After Remand). In its Decision After Remand, the Board denied Troiani
Group’s and Troy Development Associates, L.P.’s (collectively, Troiani) appeal
from the City’s Department of Permits, Licenses, and Inspections’ (PLI) denial of
an emergency demolition plan (Demolition Plan) for Troiani’s building located at
209 First Avenue in the City (First Avenue Structure), and adjacent Troiani-owned
buildings located between 100-108 Market Street (Market Street Structures). The
sole issue for this Court’s review is whether the Board properly denied Troiani’s
appeal. After review, this Court reverses the trial court’s order.
The First Avenue Structure is a six-story building with a basement,
which has been vacant for approximately 50 years. The Market Street Structures are
two- to four-story buildings that have been vacant since the early 2000s. In April
2020, due to its deteriorating condition, Troiani sought PLI’s approval for the First
Avenue Structure’s emergency demolition (Emergency Demolition Application).1
On May 5, 2020, PLI’s Assistant Director of Construction and City Building Code
Official David Green (Green) denied the Emergency Demolition Application.
Troiani appealed from PLI’s denial to the Board. On June 26, 2020, after a hearing,
the Board reversed PLI’s denial of the Emergency Demolition Application and
authorized the First Avenue Structure’s immediate emergency demolition. Troiani
retained structural engineers and demolition experts to prepare the Demolition Plan.
Thereafter, Troiani submitted its Demolition Plan for the First Avenue Structure to
PLI. Troiani’s Demolition Plan indicated that the Market Street Structures’
demolition was necessary to safely demolish the First Avenue Structure.
Accordingly, the Demolition Plan provided for demolition of the First Avenue
Structure and the Market Street Structures.2
By September 3, 2020 letter (September 3, 2020 denial letter), Green
notified Troiani that PLI denied the Demolition Plan. Green stated therein:
1
PLI’s private demolition permit process provides:
Applications for Commercial Structures require submission of
drawings or narrative prepared and sealed by a [Pennsylvania]
licensed architect or engineer that document:
o Intended demolition operations: method of demolition, type of
equipment to be used, and staging of equipment.
o Protection measures for adjacent buildings and/or properties.
o Protection measures for pedestrians in the public right of way.
https://pittsburghpa.gov/pli/private-demo (last visited Mar. 18, 2022) (emphasis added); see also
https://apps.pittsburghpa.gov/redtail/images/14153_Revised_Private_Demo_Requirements.pdf
(last visited Mar. 18, 2022).
2
The trial court’s affirmance of the City Planning Commission’s August 18, 2020 decision
that denied Troiani’s project development plans for the demolition of the Market Street Structures
is the subject of a separate appeal before this Court at Troiani Group & Troy Development
Associates, L.P. v. City of Pittsburgh Planning Commission, City of Pittsburgh & Lumania
Properties, L.P. (Pa. Cmwlth. No. 85 C.D. 2021, filed Mar. 21, 2022).
2
1. This review is for the demolition of [the First Avenue
Structure] only. Demolition of [the Market Street]
[S]tructures need[s] to be addressed under their respective
permit applications. These applications are:
a. DP-2019-03315: 106/108 Market [Street].
b. DP-2019-03314: 104 Market [Street].
c. DP-2019-03311: 100/102 Market [Street].
2. Please note that the demolition of [the Market Street
Structures] requires approval from the [City’s] Planning
Commission [(Planning Commission)]. As it stands, the
Planning Commission has denied the demolition of these
structures. PLI has no direct authority to grant the
demolition of these structures. Additionally, while the
contract for demolition identifies demolition of these
structures, this permit will be limited to demolition of [the
First Avenue Structure].
The submitted documentation shall be revised to establish
a plan for the demolition of [the First Avenue Structure]
that does not include the demolition of adjacent structures.
You may appeal PLI’s decision to the [Board]. . . .
3. Your engineer proposes that protection measures related
to the demolition of [the First Avenue Structure] include
the demolition of [the Market Street Structures]. Please
note[,] as discussed[,] these types of measures are not
required by the [International Building Code of 2015
(Building Code)3] and it is not standard industry practice
to demolish adjacent structures as a protection measure.
Further, [Troiani’s Structural Engineer, Chuck] Cornely
[(Cornely),] has identified that vibrations from demolition
of the adjacent structures could cause the collapse of [the
First Avenue Structure] and that the fall zone into Market
Street is the same whether the Market Street [Structures]
are demolished first or not. Given the above, PLI does not
deem demolition of the Market Street [Structures] a
necessary protection measure.
3
Section 403.21 of the Uniform Construction Code, 34 Pa. Code § 403.21, in pertinent
part, adopted Chapters 2-10, 12-29, and 31-35, and Section 3006 of the Building Code.
3
Reproduced Record (R.R.) at 190a-191a. Troiani appealed to the Board from PLI’s
decision.
The Board conducted a hearing on September 15, 2020. Troiani
presented testimony from structural engineers Cornely and Dirk Taylor (Taylor), and
demolition contractor Tim Schaaf (Schaaf). Cornely drafted the First Avenue
Structure’s Demolition Plan. He testified: “The demolition of the buildings along
Market Street will reduce the potential for damage to the buildings across Market
Street and reduce the potential for life [sic] and increased life safety for people using
Market Street and people in the buildings across Market Street.” R.R. at 242a.
Specifically, Cornely confirmed that “[t]he only means to minimize the life safety
concerns for a controlled demolition of [the] First Avenue [Structure] is to first
demolish the Market Street [Structures].” R.R. at 244a. He reasoned that
“[e]liminating these, demolishing these buildings on the east side of Market Street[,]
will absolutely reduce the risk of damage to the buildings on the west side of Market
Street . . . .” R.R. at 248a.
Cornely explained:
[There’s] an 8[-]foot alley between [the First Avenue
Structure] and the rear walls of the buildings along Market
Street. That alley, the width of that alley precludes any
kind of protection of the buildings along the east side of
Market Street. It’s all part of a convoluted situation of risk
of actually fairly big proportions. The reducing [sic] of
risk to the buildings on the west side of Market Street by
demolishing the buildings on the east side of Market Street
is, in my opinion, a very good move to limit damage from
the potential uncontrolled and unexpected collapse of [the
First Avenue Structure] to the west and onto the buildings
along the east side of Market Street.
R.R. at 249a.
When asked why the First Avenue Structure could not be brought down
without falling to the west, Cornely expounded:
4
The situation is this [—] [t]he wall that we see on the first
floor, the first floor brick bearing wall with the brick
courses, brick wythes [are] missing on the exterior of that
wall, that wall has approximately . . . .
....
60[%] of its strength. The point is it’s very weak. In
addition to that, those bricks that are exposed along that
first floor west bearing wall are, they are not stable. Any
disturbance, any vibration can further remove the
brickwork in that wall. That can happen at any time.
That’s what’s got me so excited myself [sic] because it’s
like a straw that will break the camel’s back. If you do
work inside that building, you’re liable to disturb that
brick and displace that brick because of the deteriorated
mortar in that brickwork of that first floor. That’s why it’s
dangerous. This is something that’s incipient. Any
vibration may be the straw that breaks the camel’s back.
Even demolishing . . . that building at 100 Market Street,
if the contractor is not successful in pulling the west wall,
the west rear wall of that building at 100 Market Street to
the west, and there are bricks that fall onto that first floor
wall, that damaged and unsafe and unstable first floor wall
of [the First Avenue Structure], [it] is liable to come down
while he is demolishing those buildings.
R.R. at 250a-252a. Cornely later added: “[T]o provide protection for the [Market
Street Structures] is virtually impossible because you cannot do construction
activities in that 8-foot alley without potentially vibrating and moving bricks in that
unsafe and deteriorated first floor west wall of the [First Avenue Structure.]” R.R.
at 268a-269a.
Cornely further stated:
[T]here is always risk with the machinery operating in the
vicinity of the building. That’s why there’s so much
concern. That’s why we are trying to plan for the
unexpected and uncontrolled collapse of the [First Avenue
Structure]. There’s no doubt that the stomping, the
movement of the heavy equipment around the [First
5
Avenue Structure] could also produce vibrations that
would loosen brick in that unsafe portion of the first floor
wall of [the First Avenue Structure]. This thing is a very
ticklish situation and is fraught with danger as we go.
That’s why there is the emphasis on trying to reduce the
amount of exposure of the lives of the workmen when we
are demolishing this building and demolishing the [Market
Street Structures].
R.R. at 269a-270a.
Taylor testified that he reviewed Cornely’s assessment and the
Demolition Plan. See R.R. at 218a. Taylor related that he visited the First Avenue
Structure and Market Street Structures, reviewed the interior and exterior conditions
and, based on his observations, investigation and analysis, he agreed with Cornely’s
conclusions. See id. Taylor described:
[I]f [the First Avenue Structure] . . . falls on top of [the
Market Street Structures], depending on the manner of the
fall and how much of the [First Avenue Structure] is left,
it is most likely to -- it under certain circumstances could
actually end up creating pressure within the building with
a correct blast that would not only push the buildings[]
over[,] but could also end up projecting portions of the
front wall outward as a result of that interior pressure that
could build up under certain collapse circumstances.
R.R. at 227a-228a.
Taylor confirmed the “extreme[] likel[ihood]” that “the impact from a
collapsing taller building at [the First Avenue Structure’s location] falling onto the
roofs of [the Market Street Structures] would push these buildings onto and possibly
even across Market Street and First Avenue, presenting a major danger to public
safety and likely causing significant property damage[,]” and that the pressure could
project “pieces of brick, glass and timber outward like shrapnel.” R.R. at 228a-229a.
Taylor concluded:
In my opinion, based on the condition of the lower west
wall, the most heavily loaded portion of that wall, and
6
looking at the conditions throughout all the floors in the
building at [the First Avenue Structure], I feel that the risk
is extremely high that under any reasonable demolition
circumstance, there’s a very high risk that that’s going to
fail no matter what’s done . . . . My feeling is that there is
a high likelihood that no matter what’s done, that building
is going to end up collapsing based on its current
condition.
R.R. at 233a.
When asked if it was possible to shore up the First Avenue Structure to
remove the deteriorating west wall, Taylor responded:
Because there is so little lateral instability [sic] in there, I
would not feel safe being involved in any kind of a shoring
system that would unload that wall. There is no
measurable lateral stability in that building, in my opinion,
right now. The front wall of the building is all glass. The
back wall is propped up with windows and things like that.
It’s also cracked and severely deteriorated. All the beam
connections to the wall at every floor, the beams are
shrunk, the beams are rotted. There’s no mechanical
connections between the beams and walls. It’s all friction.
It’s 150[-]year-old or 100[-]year-old friction connections
that are all failed and inadequate. It’s my opinion there is
no measurable lateral stability. Which is why I would not
put a shoring crew in there, based on the conditions that I
have seen.
R.R. at 233a-234a.
Schaaf described the usual demolition method for buildings like the
First Avenue Structure as follows:
Conventionally, a building of this size and this nature, the
way that it’s structured, we would take the top of the
building off. Our Stage 1 would be to go inside and pull
the floors around the perimeter walls from the inside
approximately 3 foot [sic] inward of the building, which
would give us somewhere to drop the brick from the top
of the building down to the basement. That’s not possible
with this building because there is not an engineer out
there that we found that would sign off on a plan to put our
7
guys inside that building because of the possibility of
collapse.
Our second option would be to go to the top of the
building, which is part of Phase 2 of the [D]emolition
[P]lan, and take some weight off of that wall. Once again
it poses the same factor, that any brick that comes from the
top of the building, anything that falls down to the bottom,
because that alleyway is only 8 foot [sic] wide at the
bottom, and the building overhangs, there’s only 6 foot
[sic], so any brick that falls doesn’t necessarily fall straight
down. They fall outward. The buildings along Market
Street are in such bad condition that even a handful of
brick that hit [the] back of those buildings are going to
cause the rear brick facades of [the] Market Street
[Structures] to collapse into the building along First
Avenue. At that point, we have guys right there. I don’t
want anybody getting killed there.
As the City Solicitor stated, we are mobilized. We are one
of two companies in the [City] area that can even reach a
building of that magnitude. We have a high-reach
excavator onsite. Buildings this size are not meant to be
let go this long and be able to be a controlled demolition
on the way down. It’s a high risk from our end because []
this building is going to be top heavy.
The way that we take the buildings apart is basically the
way they were constructed. The wooden beams serve as
our support from east to west. We will go through and
systemically take those out on the way down from top to
bottom. You have a certain level of vertical support that
needs to be maintained throughout demolition. When you
have all that weight up top, and you have no support at the
bottom, it’s pretty much almost a failure situation[]. We
can take as much care. We can try.
R.R. at 253a-255a.
Schaaf cautioned:
[The First Avenue Structure demolition] has been running
through our head[s] for two years now, these buildings,
which way to get those down safely, with or without the
Market Street [Structures]. When I was made aware of the
[Board’s] decision to take down [the First Avenue
8
Structure] and not [the] Market Street [Structures], it’s the
first time in my career that I just didn’t have all the answers
to it. I looked back at the engineers. The engineers
confirmed my suspicions.
R.R. at 255a.
In contrast, Green testified in support of PLI’s denial of the Demolition
Plan, explaining:
[T]his proposal . . . exceeds the . . . protection measures as
prescribed by both the Building Code, as well as [the]
Pittsburgh[, Pa. Code of Ordinances4]. A reminder that the
[B]uilding [C]ode official is charge[d] with determining
what adequate protection measures are. Secondarily
noting that, additionally, this protective measure of
demolishing adjacent structures is not an industry practice.
It’s not atypical for a structure to have to be demolished
on a tight, urban infill site. I would further note that[,]
while the property owners have the luxury of site control,
if they did not have site control of the Market Street
[S]tructures, I think this case and their options would be
very different. Ideally everyone would love to have site
control. You can’t guarantee it. Keep in mind that simply
because they have site control doesn’t mean that
demolition of those structures is necessarily the
appropriate measure for protecting the public. Also noting
that[,] in previous reports, [] Cornely . . . clearly identified
that the demolition of [the Market Street S]tructures
causes him experience [sic] and can cause the demolition
of, cause the collapse of [the First Avenue Structure].
R.R. at 299a-300a. Green concluded: “PLI has assessed what has been proposed
and does not determine it to meet the standard that would indicate . . . that a clear
and public imminent danger exists if the Market Street [S]tructures are to remain and
[the First Avenue Structure] is demolished independently from those.” R.R. at 315a-
316a.
4
See https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances (last visited
Mar. 18, 2022).
9
When asked whether structural engineers had given input in his
decision to reject the Demolition Plan, Green responded:
[W]hile ultimately the decision rests with me as [B]uilding
[C]ode official, [Troiani’s Demolition Plan] has been
reviewed internally by both myself, who is an architect,
other architects[,] and [a] registered engineer on our staff.
This was peer reviewed internally. Ultimately, the
decision, due to my position in PLI as [B]uilding [C]ode
official, it is ultimately my determination. All the internal
staff who evaluated it agreed in terms of this assessment.
R.R. at 316a.
Concerning the testimony of PLI’s staff, Green related:
We are not going to present that. . . . [A]gain, this is an
assessment of an application made to PLI. . . . [W]hile
they may be registered, they are not providing assessment
in a similar fashion to what [] Cornely or [] Taylor have
done. Our assessment is based on our experience and
background in evaluating this type of application. We get
about 60 to 100 of these a year for commercial structure[s],
demolition of structures. Applying these standards, what
have we seen in our collective experience, what protection
measures have been presented.
R.R. at 317a.
The Pittsburgh History and Landmarks Foundation’s representative
Karamagi Rujumba, and adjacent property owner Jay Green, also testified on the
City’s behalf. After the hearing, the Board affirmed PLI’s denial of the Demolition
Plan, and issued its two-page written decision on September 18, 2020 (Decision).
Troiani appealed to the trial court. On January 11, 2021, the trial court
affirmed the Board’s Decision. Troiani appealed to this Court. See Troiani Grp. v.
City of Pittsburgh Bd. of Appeals, 260 A.3d 1006 (Pa. Cmwlth. 2021) (Troiani I).
On May 3, 2021, Troiani filed an Application to Request Judicial Notice and to
Supplement the Record with the City’s April 22, 2021 Condemnation Notice for the
10
Structure at Issue (Application to Supplement). Therein, Troiani averred that, on
April 22, 2021, PLI posted “CONDEMNATION” notices (Condemnation Notices) on
the First Avenue Structure and the Market Street Structures and issued “First
Request for Compliance” notices (Compliance Notices) to Troiani for all of the
structures, identifying the First Avenue Structure and the Market Street Structures
as “Unsafe Structures” under the International Property Maintenance Code.5
Application to Supplement at 2-3; Attachments A, B (emphasis added). As
corrective action, the Compliance Notices directed Troiani to: seek permits to protect
the public right-of-way; “stabilize” the structures; and/or seek approvals for the
structures’ demolition from PLI and the Department of City Planning. Id. Troiani
attached supporting photographs of the Condemnation Notices and Compliance
Notices as exhibits to its Application to Supplement. At argument before this Court
on May 13, 2021, because the City’s counsel represented to the Court that the City
did not oppose this Court taking judicial notice of the Condemnation Notices or the
Compliance Notices, this Court granted the Application to Supplement.
On July 1, 2021, this Court issued its decision in Troiani I, therein
holding:
[T]he Board appears to have disregarded Troiani’s “strong
‘critical’ evidence” . . . , Balshy [v. Pennsylvania State
Police,] 988 A.2d [813,] 836 [(Pa. Cmwlth. 2010)], and
“has not satisfactorily addressed that evidence.” Id. at
835. Despite Troiani’s expert witnesses’ lengthy and
detailed testimony supporting the Market Street
Structures’ demolition, the Board denied the Demolition
Plan with no analysis or rationale supporting its
adjudication. In its Decision, the Board simply described
the First Avenue Structure and the decision under review,
identified the witnesses who appeared, and provided non-
5
The City has adopted the International Property Maintenance Code as part of the City’s
Code of Ordinances. See Pittsburgh, Pa. Code of Ordinances § 1011.01.
11
specific overviews of the witnesses’ testimony. There are
no “findings and . . . reasons for the adjudication[.]” 2
Pa.C.S. § 555. The Board’s denial is not “explained ‘in
sufficient detail to permit meaningful appellate review.’”
Fisler [v. State Sys. of Higher Educ., Cal. Univ. of Pa.,] 78
A.3d [30,] 41 [(Pa. Cmwlth. 2013)] (quoting Peak [v.
Unemployment Comp. Bd. of Rev.,] 501 A.2d [1383,] 1389
[(Pa. 1985)]). In fact, it is not explained at all.
Troiani I, 260 A.3d at 1015. Accordingly, this Court vacated the trial court’s order
and remanded the matter to the trial court with direction that the trial court vacate
the Board’s Decision and expeditiously remand the matter to the Board to issue a
decision based on the existing record evidence consistent with this Court’s decision.
On July 26, 2021, the Board issued its Decision After Remand, and
again denied Troiani’s Demolition Plan. Troiani appealed to the trial court. On
September 7, 2021, the trial court reversed the Board’s Decision After Remand.
Appellants appealed to this Court.6
Appellants argue that the Board correctly rejected the Demolition Plan
because, as fact-finder and an administrative board with a specialized purview and
expertise, the Board concluded that the record evidence did not show that the
Demolition Plan’s preemptive demolition of the Market Street Structures was
necessary to safely demolish the First Avenue Structure, and further “found
Troiani’s assertions [to the contrary] . . . lack[ed] credibility as engineering
conclusions.”7 Appellants’ Br. at 12. Appellants assert that “[i]n reaching its
6
The standard of review in an appeal of a local agency decision,
where the trial court has taken no additional evidence[, as is the case
here], is whether constitutional rights have been violated, whether
an error of law has been committed, or whether a finding of fact of
the agency necessary to support its adjudication is not supported by
substantial evidence.
Meyer v. City of Pittsburgh Hist. Rev. Comm’n, 201 A.3d 929, 935 n.6 (Pa. Cmwlth. 2019).
7
Despite Appellants’ characterization, the Board found only one of Troiani’s assertions
lacked credibility - that the protective measures outlined in PLI’s September 3, 2020 denial letter
12
decision, the Board pointed to various defects in Troiani’s proposal, particularly its
minimal practical impact on safety . . . .” Id. Finally, Appellants claim that, acting
in its capacity as fact-finder,
the Board reviewed an extensive and contested record.[8]
Upon review of the complex technical evidence and with
the benefit of its professional experience and
qualifications,[9] the Board made a well-reasoned
engineering determination that demolition of the Market
were infeasible. See R.R. at 650a-651a. The Court reminds counsel that “[they] must be mindful
of their own ethical duties, including the duty of candor to the tribunal. See Pa.R.P.C. 3.3.”
Commonwealth v. Sneed, 45 A.3d 1096, 1113 (Pa. 2012).
8
Section B101.1 of Appendix B to the City’s Amendments to the Uniform Construction
Code (Appendix B) describes the Board’s duties, in pertinent part: “(1) To hear and decide appeals
of orders, decisions or determinations made by the building official relative to the application and
interpretation of this [Uniform Construction C]ode.”
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITTE
NBU_CH1002UNCOCOAD_S1002.02CHSP (last visited Mar. 18, 2022).
9
Section B101.2 of Appendix B provides, in relevant part:
The [B]oard shall consist of five (5) members that are registered
design professionals, licensed by the State of Pennsylvania in one
(1) of the following disciplines, as follows:
(1) Registered Architect.
(2) Licensed Structural Engineer, with expertise in structural
design.
(3) Licensed Fire Protection Engineer, with expertise in the
design of fire protection systems.
(4) Licensed Mechanical Engineer, with expertise in the design
of mechanical systems.
(5) Licensed Electrical Engineer, with expertise in the design of
electrical systems.
(6) Licensed Plumbing Engineer, with expertise in the design of
plumbing systems.
https://library.municode.com/pa/pittsburgh/codes/code_of_ordinances?nodeId=PIZOCO_TITTE
NBU_CH1002UNCOCOAD_S1002.02CHSP (last visited Mar. 18, 2022). The Board’s Decision
After Remand identifies the following Board Members as “[a]ttending:” Yoko Tai, Registered
Architect, David Price, Professional Engineer (PE), John Schneider, PE, Edward Wunderley, PE.
R.R. at 646a.
13
Street Structures is not necessary to safely demolish [the
First Avenue Structure] .
Appellants’ Br. at 13-14. Troiani rejoins that the trial court correctly reversed the
Board’s Decision After Remand, and contends that the Board capriciously
disregarded its evidence.
The law is well established that “[i]t is the function of the fact-finder to
weigh the evidence before it.” Pohlig Builders, LLC v. Zoning Hearing Bd. of
Schuylkill Twp., 25 A.3d 1260, 1266 (Pa. Cmwlth. 2011). “It is also hornbook law
that [a local municipal board’s] findings of fact shall not be disturbed [on appeal] if
supported by substantial evidence, and that the [appellate court] may not simply
substitute its own findings for the [local municipal board’s] because it disagrees with
them.” Ralph & Joanne’s, Inc. v. Neshannock Twp. Zoning Hearing Bd., 550 A.2d
586, 589 (Pa. Cmwlth. 1988). In addition,
[a] reviewing court . . . must accept the credibility
determinations made by the local agency which hears the
testimony, evaluates the credibility of the witnesses and
serves as fact-finder. The reviewing court is not to
substitute its judgment for that of the local agency.
Assuming the record demonstrates the existence of
substantial evidence, the court is bound by the local
agency’s findings.[10]
10
It is axiomatic that findings of fact in a local agency’s adjudication
must be supported by substantial evidence. Substantial evidence is
evidence that a reasonable mind might accept as sufficient to support
a conclusion. An appellate court may not reweigh the evidence or
make credibility determinations. However, an appellate court may
“overturn a credibility determination if it is arbitrary and capricious
or so fundamentally dependent on a misapprehension of material
facts, or so otherwise flawed, as to render it irrational.” Agostino v.
T[wp.] of Collier, 968 A.2d 258, 263-64 (Pa. Cmwlth. 2009). A
fact[-]finder capriciously disregards evidence “when there is a
willful and deliberate disregard of competent testimony and relevant
evidence which one of ordinary intelligence could not possibly have
14
In re Nevling, 907 A.2d 672, 674 (Pa. Cmwlth. 2006) (emphasis added; citations
omitted).
This Court’s Troiani I decision referenced Kiskadden v. Pennsylvania
Department of Environmental Protection, 149 A.3d 380 (Pa. Cmwlth. 2016),
wherein the Kiskadden Court stated:
[This Court] may conclude that a fact[-]finder has
capriciously disregarded competent evidence “when the
unsuccessful party below has presented ‘overwhelming
evidence’ upon which the adjudicator could have reached
a contrary conclusion, and the adjudicator has not
satisfactorily addressed that evidence by resolving
conflicts in the evidence or making credibility
determinations that are essential with regard to the
evidence.” Balshy . . . , 988 A.2d [at] 835-36 . . . (quoting
Grenell v. State Civ[.] Serv[.] Comm[’n], 923 A.2d 533,
538 (Pa. Cmwlth. 2007)). “In other words, where there is
strong ‘critical’ evidence that contradicts evidence
supporting a contrary determination, the adjudicator
must provide an explanation as to how it made its
determination.” [Balshy, 988 A.2d] at 836.
Kiskadden, 149 A.3d at 401 (emphasis added).
Having observed that “the Board appear[ed] to have disregarded
Troiani’s ‘strong ‘critical’ evidence’. . . , and ‘ha[d] not satisfactorily addressed that
evidence[,]’” the Troiani I Court concluded that the Board’s Decision must be
vacated. Troiani I, 260 A.3d at 1015 (quoting Balshy, 988 A.2d at 836).
In contrast, in its Decision After Remand, the Board found:
12. As determined by the Board in its June 26, 2020
decision, the First Avenue [Structure] is in imminent
danger of collapse. [See R.R. at 134a].
avoided in reaching a result.” Id. at 264 (quoting Arena v.
Packaging Sys[.] Corp[.], . . . 507 A.2d 18, 20 (Pa. 1986)).
Spencer v. City of Reading Charter Bd., 97 A.3d 834, 842 (Pa. Cmwlth. 2014) (citations and
footnotes omitted); see also Lebron v. Pub. Sch. Emps.’ Ret. Bd., 245 A.3d 300 (Pa. Cmwlth.
2020).
15
13. Troiani asserts that it is necessary to demolish the
Market Street [Structures] first, lest the act of
demolishing the First Avenue [Structure] causes its
uncontrolled collapse into the Market Street
[Structures]. In such an event, [it] believe[s] the Market
Street [Structures] would also collapse and send debris
into Market Street and the buildings on the opposite side.
[See R.R. at 12a].
14. Troiani’s Structural Viability Report lists the
conditions that would increase the danger of collapse for
the First Avenue [Structure]:
a) Vibrations and shifting of vertical loads on
the rear wall which could occur during the
top-down demolition of the building[;]
b) The vibrations from the drilling of soil test
borings for the foundation investigation of
future construction[;]
c) Vibrations caused by the proposed
demolition of the adjacent buildings[;]
d) Impact from debris during the
demolition of the adjacent buildings[;
and]
[e)] Further deterioration of the structural
load capacity of the interior wythes of the
brick and mortar in the wall from the
continuing action of rain, snow and ice.
(Emphasis added.) . . . .
[R.R. at 85a].
15. Troiani acknowledges that any demolition on the site
creates risk:
It’s my opinion it’s impossible to protect
those buildings on the west side of Market
Street from structural damage. It all comes
back to the fact that throughout the
demolition process, no matter how it
proceeds, there is always the risk of the worst
16
happening. The idea is to reduce the risk of
the worst happening by demolishing the
buildings to the east side of Market
Street. . . .
[R.R. at 312a].
16. When questioned about possible alternative measures
for securing adjacent properties, Troiani asserted that
“[t]here’s no means of protecting those buildings because
of the utilities and existing sidewalk vaults.” [R.R. at
311a].
17. PLI noted that even under Troiani’s preferred
[D]emolition [P]lan, it would still need to take protection
measures for the right-of-way and other properties,
pursuant to the International Property Maintenance Code
and City Code requirements for building demolition.
R.R. at 649a-650a (bold and italic emphasis in original).
Further, unlike the Decision which contained no analysis or rationale,
the Board reasoned in its Decision After Remand:
18. Through its testimony and written reports, Troiani
outlines two categories of danger involved in demolishing
the First Avenue [Structure]: 1) threats to workers on the
demolition site[;] and 2) threats to adjacent properties and
the right-of-way.
19. Troiani did not submit any evidence which
demonstrates that the threat to workers would be
increased if the Market Street [Structures] are not
demolished first. Workers will apparently have to
conduct a challenging manual demolition of the parapet,
roof, and sixth-floor of the First Avenue [Structure]
whether or not the Market Street [Structures] are
demolished first. [See R.R. at 17a]. Outside of this,
workers will surely be positioned outside of the fall area
of the First Avenue [Structure] in any scenario, which
Troiani has asserted can reasonably be expected to fall
west toward Market Street in an uncontrolled collapse.
[See R.R. at 12a-13a].
17
20. The critical risk then is to the right-of-way and the
buildings across Market Street. By demolishing the
Market Street [Structures] first, Troiani asserts that [it] can
best minimize the potential damage. Troiani’s own
reports and testimony, however, make clear that this
very act may itself cause the same catastrophic collapse
scenario [it] seek[s] to prevent, which would thus
endanger the adjacent right-of-way and the buildings
across Market Street just the same. Therefore, Troiani
will need to take the same protection measures outlined by
PLI in its September 3, 2020 denial letter[,] and required
by the International Property Maintenance Code and City
Code, regardless of whether the Market Street [Structures]
are demolished first. [See R.R. at 121a, 191a].
21. Troiani asserts that these protection measures are
infeasible, but the Board does not find this assertion
credible. Buildings have been demolished in challenging
urban locations many times before without demolishing
adjacent structures as a protective measure. The existence
of underground utilities beneath the street is not at all
unique in the [C]ity and does not explain why the
protective measures outlined in the International Property
Maintenance Code and the City Code are inadequate.
22. While the Board does not doubt the good faith of
Troiani’s team, the evidence does not support [its]
assertion that the circumstances here are so unique that [it]
must take the extreme and unprecedented step of
preemptively demolishing adjacent structures.
23. The Board concludes that the preemptive demolition
of the Market Street [Structures] will not meaningfully
impact the safety of the First Avenue [Structure’s]
demolition. Therefore, PLI properly denied Troiani’s
emergency [D]emolition [Plan] and no variance is
justified.
R.R. at 650a-651a (emphasis added).
In its Decision After Remand, the Board set forth the facts which
supported its decision, and explained how it reached its decision. The Decision After
Remand reflects that the Board exercised its fact-finding function, determining
18
witness credibility, weighing the evidence, and reaching a reasoned decision.
Therein, the Board expressed concern that, as revealed in Troiani’s reports and
testimony,11 the process of preemptively demolishing the Market Street Structures
could itself cause the First Avenue Structure’s collapse, resulting in the same danger
to the adjacent right-of-way and the buildings across Market Street as would occur
if the Market Street Structures were not preemptively demolished. Thus, according
to the Board, to prepare for the First Avenue Structure’s possible unintended
collapse during the Market Street Structures’ demolition, the same protective
measures would be required to protect the neighboring property whether or not the
Market Street Structures were preemptively demolished. The Board’s Decision
After Remand reflects that the Board concluded, based on the record evidence, that
Troiani’s Demolition Plan of preemptively demolishing the Market Street Structures
was not necessary to or would not “meaningfully impact the safety of the First
Avenue [Structure’s] demolition.” R.R. at 651a.
It has long been acknowledged that “those persons who comprise the
membership of the various administrative boards have been selected for the special
skills and requisite expertise they possess in order to properly render an independent
judgment.” Batoff v. State Bd. of Psych., 750 A.2d 835, 841 (Pa. 2000).12
11
See R.R. at 61a, 85a, 252a, 269a-270a.
12
Cf. Woods Servs. v. Dep’t of Pub. Welfare, 803 A.2d 260, 261 (Pa. Cmwlth. 2002), aff’d,
839 A.2d 184 (Pa. 2003). In Woods, the Secretary (Secretary) of the Department of Public Welfare
(DPW) granted reconsideration and set aside the Bureau of Hearings and Appeals’ (BHA) decision
that had approved license applications for two intermediate care facilities. The Secretary argued
that the BHA failed to recognize licensing authorities’ broad discretion in interpreting and applying
licensing law, in that DPW favored smaller facilities than those proposed.
The Woods Court explained:
Here, unlike in Batoff . . . , we are not reviewing an agency
interpretation of professional occupational licensing law as it relates
to a professional licensee. Rather, we are reviewing DPW’s denial
of a license to a facility it concedes is otherwise qualified merely
19
“Pennsylvania courts have consistently respected that administrative agencies
comprised of persons presumably selected for their specialized experience and
expertise are better qualified than any court to make a factual finding on a subject
within their field.” Id. “When an administrative agency rests its conclusion upon
its expertise, courts generally respect its special competence.” No. 1 Cochran, Inc.
v. Unemployment Comp. Bd. of Rev., 579 A.2d 1386, 1391 n.5 (Pa. Cmwlth. 1990).
The Supreme Court of this Commonwealth has recognized
the special skills and expertise possessed of those people
comprising the membership of its various administrative
agencies. In Pennsylvania Labor Relations Board v.
Sand’s Restaurant Corp., . . . 240 A.2d 801 ([Pa.] 1968),
the Supreme Court stated:
[]An administrative agency with power after
hearings to determine on the evidence in
adversary proceedings whether violations of
statutory commands have occurred may infer
within the limits of the inquiry from the
proven facts such conclusions as reasonably
may be based upon the facts proven. One of
the purposes which lead to the creation of
such boards is to have decisions based
upon evidential facts under the particular
statute made by experienced officials with
an adequate appreciation of the
complexities of the subject which is
entrusted to their administration. . . [.] In
these cases, we but restated a rule familiar to
the law and followed by all fact-finding
because of the facility’s failure to comply with unpublished
policy.
Woods, 803 A.2d at 264 (emphasis added).
The Woods Court’s holding rested primarily on DPW’s reliance on “unpublished
regulations or policy.” Woods, 803 A.2d at 264. Here, the Board - a local administrative body
consisting of licensed architects and engineers - reviewed a demolition plan for its compliance
with the applicable codes and, based upon the record evidence in light of its architectural and
engineering expertise, determined that the proposed extraordinary preemptive demolition of the
adjacent Market Street Structures could not be justified.
20
tribunals - that it is permissible to draw on
experience in factual inquiries.[]
Id. at . . . 805 (quoting in part from Republic Aviation
Corp. v. Nat[’l] Lab[.] Rel[s.] B[d.], 324 U.S. 793, 800 . . .
(1945)).
Kundrat v. State Dental Council & Examining Bd., 447 A.2d 355, 358 (Pa. Cmwlth.
1982) (emphasis added).
Other decisions similarly recognize special deference to such
boards/commissions. See, e.g., Bedford Downs Mgmt. Corp. v. State Harness
Racing Comm’n, 926 A.2d 908, 915 (Pa. 2007) (“[T]he [c]ommission has special
expertise and judgment in making licensing decisions.” (quotation marks omitted));
Rector Church Wardens v. City of Phila. Hist. Comm’n, 215 A.3d 1038, 1042 (Pa.
Cmwlth. 2019) (recognizing the Philadelphia Historical Commission’s “expertise
given its mandated composition of specialists in historical, architectural, and real
estate fields[]”); Turchi v. Phila. Bd. of License & Inspection Rev., 20 A.3d 586 (Pa.
Cmwlth. 2011) (deference afforded where Philadelphia Historical Commission
composed of members with specialized knowledge, background, and expertise in the
area of historic preservation); Morelli v. Fire Code Bd. of Appeals, 559 A.2d 90, 92
(Pa. Cmwlth. 1989) (affirming a Fire Code Board of Appeals’ decision because “it
is the [b]oard which has the expertise, and we will not interfere with the [b]oard’s
determination unless found to be arbitrary and capricious, or unsupportable on any
rational basis”); Coder v. State Bd. of Chiropractic Exam’rs, 471 A.2d 563, 571 (Pa.
Cmwlth. 1984) (“[D]ecisions of the Pennsylvania Supreme Court accord[] broad
administrative discretion to public agencies in carrying out the functions conferred
upon them by statutes which the legislature has necessarily been required to word in
broad terms, in deference to the agency expertise needed to function in a specialized
field.”); Swartwood v. Dep’t of Env’t Res., 424 A.2d 993, 996-97 (Pa. Cmwlth. 1981)
(“[I]n the absence of a purely arbitrary exercise of an agency’s duties or functions,
21
we may not substitute judicial discretion for administrative discretion in matters,
such as these, which involve technical expertise and which are clearly within the
special knowledge and competence of the members of the [Environmental Hearing]
Board.”).
In Batoff, this Court reversed the State Board of Psychology’s
(Psychology Board) order sustaining 6 of 33 ethical and professional violations
charged against a psychologist. This Court concluded that the record did not support
the Psychology Board’s determination, and that the Psychology Board had
improperly substituted its own judgment for the expert testimony presented at an
initial hearing. The Pennsylvania Supreme Court reversed, reasoning that
the Psychology Board’s independent review in the face of
existing expert testimony [was not] an assertion of
“unfettered discretion to exercise its own independent
judgment in deciding issues requiring expert testimony
where expert witnesses did in fact testify about issues
before the Board.” Batoff [v. State Bd. of Psych.], 718
A.2d [364,] 368 [(Pa. Cmwlth. 1998)]. [Rather,] . . . there
is every indication that the Psychology Board merely
filtered the existing expert testimony and ample
documentary evidence through the lens of its own
collective expertise[.]
Batoff, 750 A.2d at 840 (emphasis added).
The Batoff Court concluded:
[O]nce the Commonwealth Court decided that the
Psychology Board’s own collective expertise played an
improper role in its conclusions as to Batoff’s professional
violations, the [C]ourt itself then reweighed substantially
the same evidence reviewed by the [Psychology] Board
and arrived at an opposite result. By mischaracterizing
the Psychology Board’s decision as based solely on its
own independent opinion and then factoring out that
opinion as invalid, the [Commonwealth C]ourt ruled
that the Psychology Board did not have the requisite
substantial evidence necessary to reach a valid agency
22
adjudication. A careful review of the record, however,
demonstrates that the Psychology Board’s independent
review of Batoff’s conduct and prepared reports was,
first, within [its] area of professional expertise and
therefore permissible and, second, merely an
additional step to ensure the verity and validity of the
several experts’ opinions.
As we have determined that such a board may factor in
its own independent review of matters within its
expertise, the Commonwealth Court may not discount
conclusions drawn from such review.
Batoff, 750 A.2d at 841 (bold and underline emphasis added). Accordingly, the
Batoff Court held that “[the Commonwealth Court] exceeded its scope of review [by]
substituting its own opinion for that of an administrative board whose members have
special competence germane to the profession under scrutiny.” Id. at 842.
Although this Court might disagree with the Board’s conclusion, it may
not reweigh the evidence or override the Board’s credibility determinations. See In
re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (“Even if an appellate court would have
made a different conclusion based on the cold record, we are not in a position to
reweigh the evidence and the credibility determinations of the [fact-finder].”); see
also Perry v. State Civ. Serv. Comm’n (Dep’t of Lab. & Indus.), 38 A.3d 942 (Pa.
Cmwlth. 2011). The Board’s Decision After Remand demonstrates that the Board
did not capriciously disregard the evidence by “willful[ly] and deliberate[ly]
disregard[ing] . . . competent testimony and relevant evidence which one of ordinary
intelligence could not possibly have avoided in reaching a result.” Spencer v. City
of Reading Charter Bd., 97 A.3d 834, 842 (Pa. Cmwlth. 2014) (quoting Agostino v.
Twp. of Collier, 968 A.2d 258, 264 (Pa. Cmwlth. 2009)). Rather, the Board’s
decision reflects that the Board, informed by its members’ expertise, weighed the
record evidence and, in doing so, disagreed with Troiani’s experts regarding the need
23
for the Market Street Structures’ preemptive demolition. See Batoff. Accordingly,
this Court is constrained to uphold the Board’s Decision After Remand.
For all of the above reasons, the trial court’s order is reversed.
_________________________________
ANNE E. COVEY, Judge
Judge McCullough did not participate in the decision in this case.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Troiani Group and Troy Development :
Associates, L.P. :
:
v. :
:
City of Pittsburgh Board of Appeals, :
and City of Pittsburgh, : No. 1127 C.D. 2021
Appellants :
ORDER
AND NOW, this 21st day of March, 2022, the Allegheny County
Common Pleas Court’s September 7, 2021 order is reversed.
_________________________________
ANNE E. COVEY, Judge