City of Philadelphia v. JETLC Holdings LLC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 502 C.D. 2021
: Submitted: July 22, 2022
JETLC Holdings LLC, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: September 22, 2023
Appellant JETLC Holdings LLC (JETLC) appeals from the Order dated April
16, 2021, by the Court of Common Pleas of Philadelphia County (trial court),
denying JETLC’s second motion to strike the judgment entered against JETLC on
January 10, 2020 (Judgment). Following our review, we quash this appeal.
I. FACTUAL AND PROCEDURAL HISTORY
JETLC owns property located at 2900 Frankford Avenue (the Property) in the
City of Philadelphia (City). In June and October 2016, City’s Department of
Licenses and Inspections (Department) issued multiple Notices of Violation against
JETLC for 19 violations of Title 4 of the Philadelphia Code of General Ordinances
(Code).1 The violations pertained to JETLC’s failure to obtain necessary building,
1
Phila., PA., The Phila. Code §§ 1-101–22-1409 (2020).
electrical, plumbing, and registration permits for modifications being made to the
Property. (Notices of Violation and Order, 6/6/16-10/25/16, Reproduced Record
(R.R.) at 26-32.2) In December 2016, the Department withdrew the previously
issued violations and reissued them on December 21, 2016. (Notice of Violation
and Order, 12/21/16, R.R. at 34-37.) On January 27, 2017, the Department
reinspected the Property and, upon determining that the violations remained, issued
a Final Warning on January 31, 2017. (Final Warning, 1/31/17, R.R. at 39-41.)
JETLC did not appeal the Notices of Violation or the Final Warning.
On July 27, 2017, City filed a Complaint in a Civil Action in Equity
(Complaint) against JETLC alleging that the Department had observed, upon
reinspection on January 31, 2017, that JETLC failed to remedy some of the
previously noted Code violations, which presented safety and health risks to
emergency personnel and the general public. (Complaint ¶¶ 3-7, R.R. at 21-22.)
City requested that the trial court grant an injunction and order JETLC to vacate the
premises, abate the violations, and pay statutory fines, costs, and fees for its
noncompliance. (Complaint, Wherefore Clause, R.R. at 22-23.)
In its “Order to Comply Violations” dated January 30, 2018, the trial court
noted the parties had entered into an agreement on December 21, 2017,3 that
operations at the Property would cease and prior to the next hearing JETLC would,
inter alia, “make every effort possible to [b]ring the violations [] into compliance[]
by acquiring zoning/use permit (or otherwise legalizing zoning/use), building
2
The pagination of JETLC’s Reproduced Record does not comport with Pennsylvania Rule
of Appellate Procedure 2173, Pa.R.A.P. 2173 (requiring that the pagination of reproduced records
be in the form of an Arabic number followed by a small “a”). For ease, the Court will utilize the
method used by JETLC.
3
Prior thereto, a consent order had been entered in November 2017, December 2017, and
May 2018. (R.R. at 46-47, 70, and 78-80.)
2
permit, electrical permit, and plumbing permit.” (January 30, 2018 Order ¶¶ 3-4,
R.R. at 71-72.) A hearing was scheduled for March 29, 2018, and the trial court
issued an order on that date again mandating that JETLC bring the Property into
compliance with the Code. (March 29, 2018 Order ¶ 3, R.R. at 73-74.) Additional
hearings and orders followed in May and July 2018. (R.R. at 78-83.) In its Order
dated October 25, 2018, the trial court continued the matter to December 20, 2018,
and indicated that “[t]he parties have agreed to enter into a Settlement Agreement
which will be submitted to the [c]ourt and filed with the Prothonotary after which
the matter shall be discontinued and ended.” (October 25, 2018 Order, R.R. at 87.)
By order entered on December 20, 2018, the trial court accepted the terms of
the parties’ stipulation pursuant to which JETLC agreed, inter alia, to bring the
property into compliance with the Code within 90 days from the date of the Order.
(December 20, 2018 Order ¶ 3, Wherefore Clause ¶ 1, R.R. at 88-89.) In addition,
JETLC would pay an “absolute fine” of $30,000.00 to City within 60 days of the
December 20, 2018 Order, and a fine in an amount of $500.00 per day would be
imposed beginning on April 15, 2019, until such time as JETLC corrected the
violations. (December 20, 2018 Order, Wherefore Clause ¶¶ 3-4, R.R. at 89.) The
fines were to “be entered as judgments against [JETLC] and shall be entered by the
Prothonotary upon praecipe of the City [].” (December 20, 2018 Order, Wherefore
Clause ¶ 6, R.R. at 90.) The December 20, 2018 Order indicated that “THIS IS A
FINAL ORDER,” and the matter was to “remain open on the docket until [the] filing
of a praecipe to discontinue by [] City.” (December 20, 2018 Order, Wherefore
Clause ¶ 10, R.R. at 91.) JETLC filed neither a motion for reconsideration nor an
appeal from the December 20, 2018 Order. Upon praecipe by the City, Judgment
was entered on January 10, 2020. (R.R. at 92.)
3
On August 21, 2020, JETLC filed its “Petition to Strike Praecipe Judgment
Based Upon Facial Defect, Or, In the Alternative, Petition to Open Praecipe
Judgment” (First Motion to Strike). Therein, JETLC admitted that the First Motion
to Strike had been “filed several months after the 30-day window.” (First Motion to
Strike ¶ 31, R.R. at 105.) JETLC stated that it had made good faith efforts to bring
the Property into compliance with the Code, although those efforts were hampered
by traveling, personal matters, and the COVID-19 pandemic. (First Motion to Strike
¶¶ 6-7, 11-17, 31-36, 44, R.R. at 101-02, 105-07.) JETLC also alleged the fines
imposed were excessive. (First Motion to Strike ¶¶ 18, 37-42, 45, R.R. at 102, 105-
07.) The trial court denied the First Motion to Strike on November 25, 2020, and
JETLC did not appeal.
JETLC filed the “Motion to Strike Praecipe Judgment Based upon the City’s
Ongoing Violations of the 8th Amendment to the United States Constitution under
Timbs v. Indiana[4]” (Second Motion to Strike) on March 19, 2021. Therein, JETLC
set forth essentially the same allegations as it had in its First Motion to Strike. In
addition, JETLC argued that since City had not filed a praecipe to discontinue, and
the Department had not verified that the Code violations had been remedied, “this
matter remains open and before the [c]ourt as a matter of law and the subject Order
and [] Judgment are interlocutory in nature.” (Second Motion to Strike ¶ 14, R.R. at
210.) JETLC further alleged notwithstanding that “the underlying subject matter is
interlocutory in nature,” the trial court could view the Second Motion to Strike “as
a request for reconsideration on the discrete Timbs . . . claim since[] interlocutory
orders may be reconsidered at any[]time during the pendency of the proceeding.”
4
Timbs v. Indiana, 139 S.Ct. 682, 687 (2019) (holding “[t]he Excessive Fines Clause is [ ]
incorporated by the Due Process Clause of the Fourteenth Amendment,” such that it applies to the
States).
4
(Second Motion to Strike ¶ 17, R.R. at 17.) The trial court denied the Second Motion
to Strike in its order entered on April 19, 2021, and JETLC timely appealed. JETLC
filed its concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), Pa.R.A.P. 1925(b), on May 27,
2021, and the trial court filed its Opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) on July 2, 2021, wherein it found no merit to JETLC’s claims.5
II. ISSUES ON APPEAL AND PARTIES’ ARGUMENTS
JETLC does not contest the existence of the Code violations or City’s right to
impose fines for violations. (JETLC’s Brief (Br.) at 4.) Rather, JETLC first argues
that the trial court erred as a matter of law in failing to find the methodology used to
determine the fines imposed against it, and the subsequent Judgment entered on
January 10, 2020, are illegal as violating the Eighth Amendment’s prohibition of
excessive fines6 under the factors set forth in the United States Supreme Court’s
decision in Timbs. (JETLC’s Br. at 6, 8-9.) JETLC acknowledges that the Judgment
set a fine in an amount of $165,000.00 in accordance with the procedure set forth in
the December 20, 2018 Order. (Id. at 4.) However, JETLC reasons that the United
States Supreme Court’s subsequent decision in Timbs “developed” a non-waivable
5
To the extent JETLC raised seven issues in its concise statement of errors complained of
on appeal, but only develops two of those issues in a meaningful way in its brief, it appears to have
abandoned the remaining five issues, and we will deem them waived. Commonwealth v. Johnson,
985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”).
6
The Eighth Amendment to the United States Constitution states: “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.” United States v. Bajakajian, 524 U.S. 321, 337 (1998).
5
“fundamental right” and enumerated factors, which must be analyzed to determine
if a fine is excessive in violation of the Eighth Amendment. (JETLC’s Br. at 4, 6,
16.) JETLC describes the “good faith” efforts it took throughout 2018 and 2019 to
bring the Property into compliance which, in its view, should be balanced against its
admitted culpability for the initial Code violations. (Id. at 10-13.)
JETLC also avers that the trial court erred in holding it lacked jurisdiction to
consider its Second Motion to Strike. According to JETLC, the Second Motion to
Strike constitutes a motion for reconsideration of the trial court’s November 25,
2020 Order denying JETLC’s First Motion to Strike because the order upon which
the Judgment is based is illegal for the reasons stated above. (JETLC’s Br. at 3, 6.)
Relying primarily on cases pertaining to the legality of one’s criminal sentence of
incarceration, JETLC posits this Court never lacks jurisdiction to strike an illegal
order of a lower court because “[a]n illegal order of judgment is never final.” (Id. at
7, 15-17 (citing Commonwealth v. Reid, 235 A.3d 1124 (Pa. 2020)).7) JETLC
concludes that, for this reason, the “illegal” December 20, 2018 Order and the
Judgment that followed “could be reconsidered any[]time during the pendency of
the proceeding.” (JETLC’s Br. at 17.)
City initially posits JETLC’s Second Motion to Strike sets forth essentially
the same arguments as were presented in the First Motion to Strike, which the trial
court denied; therefore, it is barred by the doctrine of res judicata and/or the law of
the case doctrine. (City’s Br. at 8, 10-14.) City also avers the Second Motion to
7
In Reid, our Supreme Court quashed the defendant’s appeal after concluding that Williams
v. Pennsylvania, 579 U.S. 1 (2016), did not provide an exception to the timeliness requirements of
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and, thus, the PCRA court
lacked jurisdiction to reinstate his appellate rights nunc pro tunc. However, the Supreme Court
did note that it had previously recognized “[a]n order which is illegal in its inception does not gain
legality or validity because it is not appealed from.” Reid, 235 A.3d at 1143 n.10 (citation omitted).
6
Strike did not allege the type of “fatal defect,” “obvious and patent error,” or
“illegality” that would have justified the trial court’s modification of the Judgment
entered over a year prior, well beyond the 30-day period in which JETLC had to
appeal the Judgment under 42 Pa.C.S. § 5505.8 (City’s Br. at 8, 14-19.) According
to City, even if this Court ignores the fact that JETLC consented to the terms of the
December 20, 2018 Order and never appealed the Judgment or the trial court’s denial
of the First Motion to Strike, its claim that the fines are excessive is waived for its
failure to timely raise the issue below. (Id. at 9, 20-21.) Also, City states that
JETLC’s arguments pertaining to the effect of the COVID-19 pandemic, the
Property’s market value, and its efforts to cure the violations occurred after the entry
of Judgment, and the trial court may only consider the record at the time Judgment
was entered when deciding a motion to strike. (Id. at 20.) City further argues that
even if the Second Motion to Strike were to be considered a motion for
reconsideration, JETLC is not entitled to relief because it was still untimely and an
order denying reconsideration is not an appealable order; thus, JETLC’s appeal
should be quashed. (Id. at 21.)
III. DISCUSSION
Our review of this appeal is limited to examining whether the trial court
abused its discretion or committed an error of law. Lower Southampton Township
v. Dixon, 756 A.2d 147, 150 n.7 (Pa. Cmwlth. 2000). “Whether a fine is excessive
under our Constitution is a question of law[;] therefore our standard of review is de
8
Entitled “Modification of orders,” this statute provides that “[e]xcept as otherwise
provided or prescribed by law, a court upon notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior termination of any term of court, if no
appeal from such order has been taken or allowed.” 42 Pa.C.S. § 5505.
7
novo and our scope of review is plenary.” Commonwealth v. Eisenberg, 98 A.3d
1268, 1279 (Pa. 2014).
Herein, the trial court determined that its nonjury decision memorialized in
the December 20, 2018 Order was clearly designated as a final order and that the
parties stipulated to the terms of the December 20, 2018 Order. According to the
trial court, those terms included a “grace period,” until April 15, 2019, within which
JETLC was to correct the Code violations and arrange to have the Property
reinspected, although JETLC failed to do so. (Op. at 5-6, 9, 17.) While the matter
remained open pending JETLC’s payment of the $30,000.00 “absolute fine” and the
daily fines in the amount of $500.00, by the time of Judgment, the trial court
reasoned that JETLC, admittedly, had not corrected the violations. (Op. at 9.) In
addition, the trial court noted that JETLC did not file a timely appeal following the
December 20, 2018 Order. (Op. at 17.)
Following our review, we agree with the trial court that the December 20,
2018 Order, to which the parties stipulated and labeled a “FINAL ORDER,” was,
indeed, a final order from which JETLC did not file post-trial motions or an appeal.9
9
Notwithstanding, JETLC’s ability to appeal from the consent order in the first instance is
questionable. “Ordinarily, a party who consents to, or acquiesces in, a judgment or order cannot
appeal therefrom.” Brown v. Dep’t of Health, 434 A.2d 1179, 1181 (Pa. 1981) (citations omitted).
In Laird v. Clearfield & Mahoning Railway Company, 916 A.2d 1091, 1094 (Pa. 2007), the
Pennsylvania Supreme Court found that an appeal from a consent order would not be precluded
where the trial court’s order had been entered in lieu of trial pursuant to a stipulated agreement
which contemplated and preserved appellate review, and where the issue being appealed had not
been disposed of in the stipulated order.
In its October 25, 2018 order, the trial court indicated that “[t]he parties have agreed to
enter into a Settlement Agreement which will be submitted to the [c]ourt and filed with the
Prothonotary after which the matter shall be discontinued and ended.” (R.R. at 87.) The parties
appeared before the trial court on December 20, 2018, for the scheduled hearing, at which time the
parties stipulated to specific conditions for resolving the Property’s Code violations, and the trial
court memorialized the terms of the parties’ stipulation in the December 20, 2018 Order. The
(Footnote continued on next page…)
8
Nor did JETLC timely appeal the subsequent praecipe judgment. Therefore, the trial
court correctly held that, pursuant to 42 Pa. C.S. § 5505, it had only 30 days from
the date of the December 20, 2018 Order in which to amend it. However, the Second
Motion to Strike was filed well outside that timeframe.10
December 20, 2018 Order, labeled as a “FINAL ORDER,” provided that its terms “shall be binding
on [JETLC], its agents, lessees, heirs, assigns, successors in interest, and all persons acting in or
for its behalf or occupying the subject premises.” (December 20, 2018 Order ¶¶ 8, 10.) By its
terms the Order does not appear to contemplate or preserve appellate review. Furthermore, the
issues JETLC presents on appeal with regard to the amount of fines it was directed to pay under
the terms of the December 20, 2018 Order pertain to the specific terms disposed of therein.
Therefore, under Laird, JETLC is arguably bound by the provisions of the December 20, 2018
Order, such that its appeal of the denial of the Second Motion to Strike should be quashed.
10
JETLC argues the 30-day timeframe is not applicable here as the Judgment is illegal
because it is an excessive fine in violation of the Eighth Amendment and thus is not waivable.
However, the Eighth Amendment’s prohibition against excessive fines discussed in Timbs and
made applicable to the states was not a novel law in Pennsylvania. See Commonwealth v. 1997
Chevrolet & Contents Seized from Young, 160 A.3d 153, 162 n.7 (Pa. 2017) (stating “[t]he Eighth
Amendment, and, specifically, the Excessive Fines Clause, is made applicable to the states through
the Fourteenth Amendment to the United States Constitution. Cooper [Indus.], Inc. v. Leatherman
Tool [Grp.], Inc., 532 U.S. 424, 433-34 . . . (2001).”). In addition, a court reviewing a motion to
strike may look only to the record at the time of the entry of judgment to determine if the judgment
is supported by the record and will grant the petition only where a fatal defect appears on the face
of the record. Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-19 (Pa. 1997). Rather
than timely challenge the amount or constitutionality of the fines imposed in the December 20,
2018 Order, JETLC agreed to the amounts of the fines and the timeframe within which they would
accrue at the time Judgment was entered. Also, with regard to JETLC’s allegation that
constitutional claims are not waivable, this Court recently held:
[P]arties may waive even constitutional challenges by failing to assert them timely
and properly. In re J.M.Y., 218 A.3d 404, 417 (Pa. 2019) (explaining that “[e]ven
constitutional challenges must be brought in a manner specified by law, and in a
timely fashion, or else they are waived”) (citing Commonwealth v. Knox, 190 A.3d
1146, 1152 n.5 (Pa. 2018) (observing that “[c]onstitutional claims are subject to
waiver regardless of their importance”)); Haaf v. Zoning Hearing Bd., 625 A.2d
1292, 1296 (Pa. Cmwlth. 1993) (concluding that zoning applicant waived its right
to pursue a challenge to the constitutional validity of a zoning ordinance when it
entered into a compromise agreement with the zoning hearing board). Such a
waiver precludes the party from asserting a collateral attack. See Mitchell v. United
(Footnote continued on next page…)
9
Similar to the appellant in City of Philadelphia v. Hummel (Pa. Cmwlth., No.
2178 C.D. 2013, filed November 18, 2014), JETLC sought relief from the trial court
by seeking to open judgment a second time. In Hummel, we treated the second
petition to open as a request for reconsideration, which is what JETLC requests we
do herein. Here, treating the Second Motion to Strike as a motion for reconsideration
does not advance JETLC’s position. First, as stated in Hummel, “[t]he mere filing
of a motion for reconsideration does not toll the time for taking an appeal from the
order at issue unless the trial court expressly grants reconsideration within that time
period, a circumstance which did not occur in this case.” Hummel, slip op. at 6
(citing Pa.R.A.P. 1701(b)(3)). Second, a trial court’s denial of a motion for
reconsideration is not an appealable order. Id.; In re Merrick’s Est., 247 A.2d 786,
787 (Pa. 1968); Murkey v. Corbin, 533 A.2d 1091 (Pa. Cmwlth. 1987).
IV. CONCLUSION
In summary, the December 20, 2018 Order, to which JETLC stipulated to
entry, is a final order from which the trial court only had 30 days to modify. JETLC’s
Second Motion to Strike was filed outside that timeframe and when considered a
motion for reconsideration, as JETLC posits, the trial court’s April 16, 2021 Order
Elevator Co., 434 A.2d 1243, 1247 (Pa. Super. 1981) (explaining that where a
litigant fails to raise an issue on direct appeal, the doctrine of waiver precludes a
collateral attack, even regarding errors of constitutional dimension) (quotation
marks and additional citations omitted). Here, it is undisputed that Kansky made
no attempt to appeal or otherwise assert a prompt challenge to the validity of the
[c]onsent [o]rder. Accordingly, he waived any such challenge and may not raise it
now through a collateral attack.
Kansky v. State Bd. of Podiatry (Pa. Cmwlth., No. 743 C.D. 2022, filed July 21, 2023), slip op. at
10. For the foregoing reasons, we find JETLC has failed to preserve this constitutional claim for
our review.
10
denying it is an unreviewable order under our precedent. Accordingly, we quash
JETLC’s appeal.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
:
v. : No. 502 C.D. 2021
:
JETLC Holdings LLC, :
Appellant :
ORDER
NOW, September 22, 2023, the appeal of JETLC Holdings LLC, in the above-
captioned matter, is QUASHED.
__________________________________________
RENÉE COHN JUBELIRER, President Judge