Com. of PA v. Central Penn Equity Trust ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Central Penn Equity Trust, : No. 424 C.D. 2022
Appellant : Submitted: May 19, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: September 6, 2023
Central Penn Equity Trust (Appellant) appeals from the Lancaster
County Common Pleas Court’s (trial court) March 29, 2022 order finding Appellant
guilty of violating Section 304.7 of the 2015 International Property Maintenance
Code (2015 IPMC) (relating to roofs and drainage) (IPMC Section 304.7).1
Appellant presents two issues for this Court’s review:2 (1) whether the trial court
erred by finding that the initial purpose for the City of Lancaster’s (City) Housing
Inspector Eric Delgado’s (Inspector) entry onto Appellant’s rental property located
at 407 Chester Street, Lancaster, Pennsylvania (Property) was lawful; and (2)
1
The parties did not include the 2015 IPMC in the record. However, “‘Courts may take
judicial notice of local government ordinances.’ In re Appeal of Moyer, 978 A.2d 405, 407 n.2
(Pa. Cmwlth. 2009); see also [Section 6107(a) of the Judicial Code,] 42 Pa.C.S. § 6107(a) (‘[T]he
ordinances of municipal corporations of this Commonwealth shall be judicially noticed.’).” Valley
Forge Sewer Auth. v. Hipwell, 121 A.3d 1164, 1168 n.5 (Pa. Cmwlth. 2015). Because the 2015
IPMC was incorporated in Chapter 223 of the Property Maintenance portion of the City of
Lancaster, Pennsylvania, Code of the City of Lancaster (2018), this Court takes judicial notice of
the 2015 IPMC.
2
This Court reordered Appellant’s issues for clarity of discussion herein.
whether the trial court erred by concluding that the IPMC or the Property
Maintenance portion of the City of Lancaster, Pennsylvania, Code of the City of
Lancaster (City Code) authorized Inspector to delegate his duty to a certified roof
inspector in the absence of an unusual technical concern. After review, this Court
affirms.
Facts
Appellant’s Property was subject to Chapter 238 of the City Code
(relating to rental property).3 See Reproduced Record (R.R.) at 30a, 48a. On January
28, 2021, an adjacent neighbor (Neighbor) lodged a complaint with the City
regarding concerns that conditions at the Property affected his/her residence.4 That
same day, Inspector visited the Property and discovered a number of City Code
violations.5 Relevant here, Inspector observed a tree on the Property growing over
the flat second-story roof of Appellant’s building. From the ground, Inspector was
unable to determine whether the tree had damaged Appellant’s roof.
Also on January 28, 2021, the City sent Appellant a Notice of
Violations (NOV), directing Appellant to, inter alia, “[h]ave a [q]ualified
[c]ontractor inspect the roof to ensure it has not sustained damage from the tree
grown [sic] tree[, and s]ubmit the Roof Certification included in [this NOV] to [the
City’s Bureau of Code Compliance and Inspections, Housing Inspections O]ffice.”
3
The City adopted Chapter 238 of the City Code on February 10, 2009, by Ordinance No.
1-2009. On November 13, 2018, the City amended multiple sections of Chapter 238 of the City
Code. See Appellant’s Production of Documents, Ex. B. The City amended Chapter 238 of the
City Code in its entirety on September 27, 2022, by Ordinance No. 18-2022. See
ecode360.com/13535859 (last visited Sept. 5, 2023). References herein are to the version of
Chapter 238 of the City Code that was in effect when the City issued the Notice of Violation in
January 2021.
4
Neighbor is not identified in the record before this Court.
5
Because Appellant satisfactorily addressed the other violations Inspector found at the
Property, they are not at issue in this appeal.
2
R.R. at 90a; see also R.R. at 48a-54a. The NOV declared that Appellant must abate
that violation by February 10, 2021, and that Inspector would revisit the Property on
March 3, 2021. See id.On March 3, 2021, Inspector attempted to reinspect the Property, but
Appellant was not present and no one answered the door. See R.R. at 55a-56a, 96a.
Because the City had not received Appellant’s Roof Certification, and Inspector was
still unable to determine whether the roof was damaged, on March 24, 2021,
Inspector sent Appellant a notice scheduling reinspection for April 9, 2021. See R.R.
at 55a, 95a. Again, on April 9, 2021, the City had not received Appellant’s Roof
Certification, Appellant was not at the Property when Inspector visited, and no one
answered the door. See R.R. at 55a-57a, 96a. On May 5, 2021, Inspector sent
Appellant a letter scheduling reinspection for June 15, 2021; however, on June 15,
2021, Appellant was again not present and Inspector could not see the roof. See R.R.
at 56a-57a, 67a-68a, 96a. In interim telephone conversations with Appellant’s
trustee and beneficiary Kevin Kann (Kann), Inspector informed Kann that he would
cite Appellant for violating IPMC Section 304.7 if the City did not receive
Appellant’s Roof Certification. See R.R. at 57a, 73a. Kann responded that he did
not believe Appellant should have to expend funds for a roof inspection without
evidence that its roof was damaged. See R.R. at 56a-57a, 71a-72a.
On July 23, 2021, Inspector issued Appellant a non-traffic citation
(Citation) for Appellant’s “failure to have a qualified contractor inspect the roof to
ensure it is [sic] not sustained damage from the tree[,]” and failure to submit the
Roof Certification to the City. R.R. at 2a; see also R.R. at 57a-58a.
On August 19, 2021, the Lancaster County District Attorney issued a
Summons for Summary Case - Non-Traffic to Appellant for violating IPMC Section
304.7, and Appellant pled not guilty. See R.R. at 9a, 11a. On September 27, 2021,
a Magisterial District Judge (MDJ) conducted a hearing, at which Inspector
3
testified.6 The MDJ adjudicated Appellant guilty of violating IPMC Section 304.7,
and assessed Appellant a $300.00 fine plus costs. See R.R. at 12a. On October 19,
2021, Appellant appealed to the trial court.
The trial court held a de novo hearing on March 29, 2022, at which
Inspector testified. Kann attended the hearing, offered a photograph of the subject
tree,7 and declared that Appellant removed the tree shortly after it received the
NOV.8 See R.R. at 63a-64a, 72a, 97a. At the conclusion of the hearing, the trial
court found Appellant guilty of violating IPMC Section 304.7, ordered Appellant
“to provide the necessary [R]oof [C]ertification in order to come into compliance
with the [City Code],” and assessed a $300.00 fine and costs. R.R. at 78a; see also
R.R. at 6a, 12a-13a. Appellant appealed to this Court.9
By June 14, 2022 order, amended June 17, 2022, the trial court
instructed Appellant to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (1925(b)
Statement). On July 7, 2022, Appellant filed its 1925(b) Statement. On November
6
Appellant did not attend the MDJ hearing. See R.R. at 6a, 8a.
7
Kann declared that he took the photograph within days after Appellant received the NOV
and, thus, it depicted the tree as Inspector would have seen it on January 28, 2021. See R.R. at
72a. However, Inspector could not verify that the photograph was an accurate reflection of the
tree as he saw it on January 28, 2021. See R.R. at 63a, 67a, 72a.
8
Kann admitted that the City did not direct Appellant to remove the tree; rather, he took it
down “in good faith[.]” R.R. at 75a. Notably, although Kann challenges the City’s authority to
require Appellant to obtain a Roof Certification that is “in excess of $200[.00,]” Kann spent
$625.00 to have the tree removed. R.R. at 72a.
9
“This Court’s 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).” Commonwealth v. Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010).
By July 17, 2023 Order, this Court directed Appellant to submit complete versions of City
Code Chapters 223 and 238 that were in effect on January 28, 2021, which Appellant furnished to
the Court on July 19, 2023.
4
14, 2022, the trial court issued its opinion pursuant to Rule 1925(a) (Trial Court
1925(a) Opinion).
Discussion
Initially, Section 103.3 of the City Code authorizes the City’s
enforcement officers and inspectors to “enforce the provisions of the [City Code].”
City Code § 103.3 (R.R. at 82a). When the City issued the NOV in January 2021,
Chapter 223 of the City Code governed property maintenance in the City.10 Section
223-2 of the City Code adopted and incorporated IPMC Section 304.7, see City Code
§ 223-2 (R.R. at 81a), which provided:11
Roofs and drainage. The roof and flashing shall be
sound, tight[,] and not have defects that admit rain. Roof
drainage shall be adequate to prevent dampness or
deterioration in the walls or interior portion of the
structure. Roof drains, gutters[,] and downspouts shall be
maintained in good repair and free from obstructions.
Roof water shall not be discharged in a manner that creates
a public nuisance.
IPMC § 304.7 (R.R. at 88a) (emphasis in original).12
10
Chapter 223, Section 1 of the City Code reflects that
the intent and purpose of [] [C]hapter [223 of the City Code
(Property Maintenance) is] to adopt a modern property maintenance
code which will prescribe effective standards and minimum
requirements for the safeguarding of persons and buildings located
in the [City] and protect the public health and safety of citizens and
visitors against the hazards of inadequate, defective[,] or unsafe
existing structures.
City Code § 223-1, Appellant’s Production of Documents Ex. A at 1. The City adopted the IPMC,
subject to additions, deletions, and modifications referenced therein. See Chapter 223, Section 3
of the City Code, City Code § 223-3, id. at 2.
11
IPMC Section 304.7 applicable to the City Code in January 2021 remained the same in
subsequent IPMC versions (i.e., 2018 and 2021).
12
codes.iccsafe.org/content/IPMC2015/chapter-3-general-requirements (last visited Sept.
5, 2023).
5
Chapter 238, Section 2.A.(i.) of the City Code also mandated that
residential rental property owners shall “[k]eep and maintain all [rental units
(]Units[)] in compliance with all applicable codes[] [and] ordinances . . . , including
but not limited to [Chapter 223]” and, by incorporation, the 2015 IPMC’s property
maintenance requirements.13 City Code § 238-2.A.(i.), Appellant’s Production of
Documents Ex. B at 5.
Further, Chapter 238, Section 9.E of the City Code authorized the
City’s Code official to issue NOVs to owners whose rental properties violated City
Code Chapter 223. See City Code § 238-9.E, Appellant’s Production of Documents
Ex. B at 11. Section 106.3 of the City Code provided that a City Code official may
institute appropriate legal proceedings for an owner’s failure to abate a violation,
which could result in a $100.00 to $1,000.00 fine for a first offense. See City Code
§ 106.3 (R.R. at 82a).
Appellant first argues that the trial court erred by finding that the initial
purpose for Inspector’s entry onto the Property was lawful when the circumstances
were factually impossible. Specifically, Appellant asserts that once Inspector
determined that the subject tree did not appear to negatively impact Neighbor’s
property, Inspector’s inquiry should have ended without further inspection of
Appellant’s Property.
Chapter 238, Section 10.A of the City Code required rental property
owners to afford City Code officials access to inspect rental properties. See City
Code § 238-10.A, Appellant’s Production of Documents Ex. B. at 12. According to
Chapter 238, Section 10.E of the City Code, in addition to the initial inspection after
an owner files a rental property license application,
more frequent periodic inspections may occur as deemed
necessary by City Code [o]fficials, for reasons such as
13
See City Code § 238-9.E, Appellant’s Production of Documents, Ex. B at 11.
6
reasonable threats to the safety of occupants of the
Unit, reasonable threat to the safety of users of . . .
adjoining properties[,] and reasonable concern that
the Unit is the subject of additional code violations.
City Code § 238-10.E, Appellant’s Production of Documents Ex. B. at 13 (emphasis
added). Chapter 238, Section 9.E of the City Code authorized the City’s Code
official to issue notices of violation “[w]henever the [City C]ode [o]fficial
determines that the Unit is in violation of the City’s Property Maintenance Code
[(i.e., Chapter 223 and the 2015 IPMC)].” City Code § 238-9.E, Appellant’s
Production of Documents Ex. B at 11 (emphasis added).
Inspector described:
A. . . . [W]e do the inspection and based on what the
complaint is we try to make a determination on visible
evidence. So I’m there, I’m analyzing. I’m observing to
see if, in fact, there is a problem that needs to be dealt with,
remedied. If not, then we can disregard it as unfounded.
Q. So you initially right off the bat take all your time to
looking [sic] into what specifically that complaint is about
before moving on to anything else?
A. Yes. As a practice, when we go to inspect the property,
we actually inspect the exterior of the property. It would
be the same thing as if I received an interior complaint
about a flooded basement. As I’m moving through the
property, I’m going to observe if there’s smoke alarms, if
they have carbon alarms, is there any damage to the wall,
any damage to the ceiling. If I see infestation possibilities,
a lot of roaches, mice, then I have to make note of what I
see.
R.R. at 65a-66a.
Chapter 238, Section 10.E of the City Code authorized Inspector to
inspect the Property upon the Neighbor’s complaint. Section 9.E thereof obligated
Inspector to bring any and all City Code violations to Appellant’s attention, which
Inspector did here. Appellant did not provide any contrary support for its argument
7
that Inspector could only cite Appellant for violations about which complaints are
lodged. The trial court held:
Based upon the testimony at the summary appeal hearing,
the [trial] court found that [] Inspector was at the Property
for the lawful purpose of responding to a valid complaint
and that during [] Inspector’s inspection of the Property,
he uncovered a number of violations, including the
violation at issue of [IPMC] Section 304.7 . . . adopted by
. . . Section 223[] [of the City Code], relative to roof and
drainage maintenance. [] Inspector viewed an overgrown
tree on the Property, which was growing over the
Property’s roof, an obstruction and [potential] violation of
the IPMC which states that “[r]oof drains, gutters and
downspouts shall be maintained in good repair and free
from obstructions.” [IPMC] Section 304.7. Thus, []
Inspector’s reason for entry onto the Property was not
unlawful[,] nor was the basis of authority to conduct the
inspection invalid as Appellant argues.
Trial Ct. 1925(a) Op. at 4-5 (R.R. at 33a-34a). This Court discerns no error in the
trial court’s reasoning.
Appellant next contends that the trial court erred by concluding that the
City Code authorized Inspector to delegate his duty to a certified roof inspector
because Inspector’s “demand for an expert report of the roof was not in accord with
the statute of the IPMC on inspections[,]” i.e., there was no unusual technical
concern about the roof. Appellant Br. at 12
Inspector testified on the City’s behalf at the trial court hearing:
A [R]oof [C]ert[ification] is an in-house certification that
the City has in order to try to get compliance. So
essentially I can use [IPMC Section] 304[.]7 to have a roof
checked if there’s an issue with gutters and so on and so
forth, I can then, based on that and potential damage,
require a [R]oof [C]ertification, so a professional roofer
or a qualified contractor can come inside, take a look and
verify whether that’s in good standing or not.
R.R. at 68a (emphasis added). Inspector expounded:
8
[Roof C]ertification would be required in the case that
we went into a property and we saw damage, meaning we
had the right to go into a property to see damage, or under
the circumstances in which we could not verify from
our position whether the roof was damaged or not, and
that would be contingent upon something that could
possibly be creating a problem for that roof.
R.R. at 54a (emphasis added). He added that the City’s inspectors “do not go on
roofs” because they do not have the necessary training or equipment, so “[they] rely
on the [R]oof [C]ertification whenever [they] have an issue that [they] can’t verify.”
R.R. at 61a; see also R.R. at 66a-67a.
Inspector further detailed:
A. . . . I was sent out [] to inspect [the P]roperty to see if,
in fact, there was an overgrown tree, which there was. And
then based on the direction of the tree, [I] requested that
[Appellant] would [sic] have the roof checked to make
sure there was no damage to the roof.
Q. Was the tree growing over on top of the roof?
A. Yes. So the tree itself was fairly close to the
[P]roperty,[14] and it was leaning over towards the left,
towards the roof of the [P]roperty when [I] went into the
backyard.
Q. Were you able to determine whether the roof was in
good condition from the ground?
A. No. I could not.
....
Q. Okay. And, again, the tree was on top of it or was it
growing over it?
A. Well, the tree was growing over it.
Q. Now, just to be absolutely clear on this, because I think
the whole case turns on this. Were you able to determine
14
It is unclear from the context whether, here, Inspector was referring to Neighbor’s
property or the subject Property.
9
on that visit on [January] 28th whether the roof was
damaged or not?
A. No, I could not.
Q. So you asked him to do that?
A. Yes.
R.R. at 52a-53a (emphasis added). Inspector added:
I was not able to ever even look inside, and I didn’t have
grounds to look inside unless we believed that there was
water leaking into the [P]roperty. What [I was] asking
was to make sure that the tree was not damaging the roof
itself. . . . I could not verify . . . whether the roof was in
good standing [(i.e., compliant with IPMC Section 304.7]
or not.
R.R. at 56a (emphasis added).
Section 104.2 of the 2015 IPMC, incorporated into the City Code and
in effect when Inspector issued the NOV, generally declared:
The code official shall make all of the required
inspections, or shall accept reports of inspection by
approved agencies or individuals. Reports of such
inspections shall be in writing and be certified by a
responsible officer of such approved agency or by the
responsible individual. The code official is authorized to
engage such expert opinion as deemed necessary to report
on unusual technical issues that arise, subject to the
approval of the appointing authority.
2015 IPMC § 104.2 (bold emphasis added).15 Section 104.1 of the 2015 IPMC
further provided:
The code official is hereby authorized and directed to
enforce the provisions of this [IPMC]. The code official
shall have the authority to render interpretations of
this [IPMC] and to adopt policies and procedures in
order to clarify the application of its provisions. Such
15
codes.iccsafe.org/content/IPMC2015/chapter-1-scope-and-administration (last visited
Sept. 5, 2023).
10
interpretations, policies[,] and procedures shall be in
compliance with the intent and purpose of this [IPMC].
Such policies and procedures shall not have the effect of
waiving any requirements specifically provided for in this
[IPMC].
2015 IPMC § 104.1 (bold emphasis added).16 Section 101.3 of the 2015 IPMC
specified the IPMC’s intent:
This [IPMC] shall be construed to secure its expressed
intent, which is to ensure public health, safety[,] and
welfare insofar as they are affected by the continued
occupancy and maintenance of structures and premises.
Existing structures and premises that do not comply with
these provisions shall be altered or repaired to provide a
minimum level of health and safety as required herein.
2015 IPMC § 101.3 (italic emphasis in original; bold emphasis added).17
Correspondingly, Chapter 238 of the City Code expressed its intent and
purpose, in pertinent part:
WHEREAS[,] [] in 2009[,] City Council . . . found that it
was necessary to safeguard the safety, health and welfare
of the public by assuring that the [c]ode [o]fficials of the
City . . . were authorized to enter structures and premises
within the City to perform inspections thereof and to
perform their duties under the [City Code]; and
WHEREAS[,] the City Council . . . found that there was a
growing concern within the City with the failure of some
landowners to properly maintain residential rental
properties; and
WHEREAS, the City Council . . . found that to safeguard
the safety, health and welfare of its citizens, and to
encourage [o]wners . . . of rental housing to improve and
maintain the quality of such housing, it was necessary to
establish a systematic interior inspection, registration[,]
16
codes.iccsafe.org/content/IPMC2015/chapter-1-scope-and-administration (last visited
Sept. 5, 2023).
17
codes.iccsafe.org/content/IPMC2015/chapter-1-scope-and-administration (last visited
Sept. 5, 2023).
11
and licensing program for residential rental properties,
their [o]ccupants and their operators; and
Chapter 238, Appellant’s Production of Documents Ex. B at 1.
Clearly, Inspector/the City had the discretion to interpret the City Code
in a manner that protects the Property’s habitability and the safety of the City’s
residents. Section 104.2 of the 2015 IPMC expressly authorized City officials to
either conduct roof inspections themselves, or to have the property owners obtain
the inspections and submit Roof Certifications. Where, as here, the record supported
Inspector’s concern for the roof’s compliance with IPMC Section 304.7, and he
lacked the necessary access to ensure that compliance, Inspector properly required
Appellant to obtain a Roof Certification.
The trial court concluded:
Inspector testified that he could not verify whether the
overgrown tree created damage to the Property as []
Inspector did not have the ability to gain access to the roof
and Appellant was not present to answer the door for []
Inspector to look inside; thus, [] Inspector testified that, in
situations where the damage cannot be verified, a [R]oof
[C]ertification is required. Therefore, because [] Inspector
was unable to verify whether the overgrown tree created
damage to the roof, it was not an unlawful delegation of
authority to require Appellant to provide a [R]oof
[C]ertification as required by City Code.
Trial Ct. 1925(a) Op. at 5-6 (R.R. at 34a-35a) (footnote omitted). This Court
discerns no error in the trial court’s conclusion.
Notwithstanding, Appellant relies on the last sentence of Section 104.2
of the 2015 IPMC to support his argument that Inspector could only require a Roof
Certification for “unusual technical issues.” 2015 IPMC § 104.2. The City responds
that the circumstances herein presented unusual technical issues. This Court’s plain
reading of that text reflects Inspector’s/the City’s authority to retain an expert on the
City’s behalf, with the City’s approval (presumably, because it would be at the City’s
12
expense) when unusual technical issues related to the City Code so warrant. See
2015 IPMC § 104.2. That was not the case here. Because the first sentence of
Section 104.2 of the 2015 IPMC afforded Inspector the authority to require
Appellant to obtain a Roof Certification, Appellant’s (and the City’s) reliance on the
last sentence of Section 104.2 of the 2015 IPMC was misplaced in this instance.
Conclusion
Based on the foregoing, the trial court’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Central Penn Equity Trust, : No. 424 C.D. 2022
Appellant :
ORDER
AND NOW, this 6th day of September, 2023, the Lancaster County
Common Pleas Court’s March 29, 2022 order is affirmed.
_________________________________
ANNE E. COVEY, Judge