City of Philadelphia v. S.T. Pien

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
: No. 1738 C.D. 2018
v. :
: Submitted: November 12, 2019
Shih Tai Pien, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE McCULLOUGH FILED: December 20, 2019
Shih Tai Pien (Pien) appeals from the December 31, 2018 order of the
Court of Common Pleas of Philadelphia County (trial court) granting a permanent
injunction requiring Pien to remediate violations of Chapter 3, Subcode A of the
Philadelphia Building Construction and Occupancy Code, which is known as the
Administrative Code, and violations of the Philadelphia Fire Code (Fire Code),1 and
imposing a $7,500 fine.
Background
On December 11, 2017, the City of Philadelphia’s (City) Department of
Licenses and Inspections (L&I) issued an initial notice of violation to Pien regarding
alleged violations of the Philadelphia Fire and Administrative Codes occurring at 1124
Walnut Street, Philadelphia (Property). (Reproduced Record (R.R.) at 33a.)
1
The Philadelphia Administrative Code and Fire Code are both found in Title 4 of The
Philadelphia Code.
Specifically, the notice cited Pien for failure to obtain a registration permit and
certificate of occupancy for the Property, missing swivel fittings and caps on the
exterior hose connections for the fire suppression system, “communication failure” on
the fire alarm system, and lack of a fire alarm and fire suppression system certification.
Id. L&I re-inspected the Property a month later. Finding that the violations had not
been corrected, L&I issued a final warning notice. (R.R. at 37a-38a.) The final
warning stated that if the violations were not corrected, the City would file an
enforcement action in the trial court.
On June 7, 2018, the City filed a complaint in equity against Pien in the
trial court. Pien accepted personal service of the complaint on July 31, 2018. (Original
Record (O.R.) at Item No. 8.) Pien did not file an answer to the complaint and initially
did not retain counsel. The trial court held a hearing on September 13, 2018. At that
hearing, an L&I inspector testified that Pien had not obtained the necessary registration
permits and certificates of occupancy for the Property. (R.R. at 41a.) Pien stated that
the tenants at the Property had been in place for a number of years; however, she
acknowledged that she still needed to obtain the necessary permits. (R.R. at 41a-42a.)
At the hearing, Pien provided a packet of materials to the City regarding
the fire alarm and fire suppression system certifications. (R.R. at 42a-43a.) The City
accepted the fire suppression certification, but did not accept the fire alarm
certification. Id. At the close of the hearing, the trial court stated that it would provide
Pien an additional 60 days to remedy the violations. (R.R. at 43a.) Thereafter, the trial
court issued an order requiring Pien to obtain a corrected fire alarm certification, repair
the “Fire Department connection,” and obtain registration permits and certificates of
occupancy for the second, third, and fourth floors of the Property by November 9, 2018.
(O.R. at Item No. 9.)
2
A subsequent hearing was held on November 8, 2018. The City’s attorney
stated that he and the L&I inspector spoke with Pien and that he thought she understood
“very little of what [they were] saying.” (R.R. at 46a.) Accordingly, the City’s attorney
requested a Mandarin interpreter and asked to continue the hearing in order to obtain
an interpreter. Id. The trial court continued the hearing until December 20, 2018, so
that an interpreter could be present. Id.
At the December 20, 2018 hearing, Pien was provided with an interpreter.
(R.R. at 49a.) The L&I inspector testified that he last inspected the Property on
December 17, 2018. (R.R. at 50a.) The inspector noted that the stand pipe and
automatic sprinkler were missing Fire Department connections and that there was a
“communication failure” for the fire alarm system. (R.R. at 51a.) The inspector also
testified that the second, third, and fourth floors were illegally occupied because they
lacked certificates of occupancy. Id.
While Pien introduced documentation in an attempt to show that the
problems were fixed, the trial court concluded the documentation was insufficient to
establish that Pien resolved the outstanding violations of the Property. (R.R. at 52a.)
Pien stated that she wished to hire someone to fix the problems. Id. The trial court
noted that it had already been a year since the notice of the violations, the violations
were still outstanding, and Pien was afforded additional time to remedy the violations.
Id. The trial court stated that Pien had provided no evidence to refute the evidence of
the violations. Id. The trial court decided to allow Pien and her tenants until December
31, 2018, to vacate the Property.
Pien testified that she needed a month to give her tenants notice. Id. The
trial court stated that it would only give her until December 31, 2018, to vacate the
Property because the issues had been longstanding. Pien asked if it would be possible
3
to have a company fix the system right away. Id. The trial court found that Pien had
failed to produce the necessary documents for the Property to remain inhabited, but
stated that to the extent she made the necessary repairs, she could ask the City to do an
investigation and inspection and the information could be provided to the court. (R.R.
at 53a.) The trial court concluded that if Pien obtained the necessary repairs and
certificates of occupancy by December 31, 2018, she would not have to vacate the
Property. Id. The trial court also determined that a fine was appropriate, but that the
fine would be conditional in case Pien managed to correct the violations by December
31, 2018. Id. Accordingly, following the hearing, the trial court issued an order and
permanent injunction requiring Pien to obtain registration permits and certificates of
occupancy for the Property, correct the Fire Department connection, properly install
all sprinkler heads, correct all other violations listed in the initial notice of violation,
and ensure that L&I had marked the violations as “complied.” (R.R. at 57a.) The order
further deemed the averments in the City’s complaint admitted due to Pien’s failure to
file an answer. The trial court also imposed a fine of $7,500, conditioned on Pien not
remedying the violations by December 31, 2018. Id.
The day after the injunction was entered, Pien retained counsel. On
December 24, 2018, her counsel filed a motion for reconsideration and for
extraordinary relief, seeking to vacate the order. While that motion was pending, Pien’s
counsel filed an emergency motion to stay. The trial court denied both motions. Pien’s
counsel also filed a motion for reconsideration of the order denying the motion to stay,
which was denied. Subsequently, the trial court issued an amended order on December
31, 2018, imposing a fine of $7,500, because Pien failed to remedy the violations, and
authorizing the City to require occupants at the Property to vacate and cease operations.
The amended order also relisted the matter for January 17, 2019, for the court to
4
determine if the terms of its order had been violated and/or if the property remained in
violation of the Philadelphia Code. Pien then appealed the December 31, 2018 order.2
The trial court held a brief hearing on January 17, 2019, at which it noted that an appeal
was pending; therefore, the trial court refused to further consider the matter until the
appeal had concluded.
In its Rule 1925(b) statement of errors complained of on appeal, Pien’s
counsel argued, inter alia, that the trial court violated Pien’s due process rights by (1)
issuing an 11-day compliance deadline that was impossible to meet over a long
weekend; (2) failing to provide a hearing between the December 20, 2018 hearing and
the December 31, 2018 deadline for the court to monitor compliance with its order; and
(3) deeming the averments in the City’s complaint in equity as admitted before Pien
had appeared in court with an interpreter.
In its Rule 1925(a) opinion, the trial court observed that Pien’s claim that
she was only given 11 days to fix the outstanding violations was “patently false.” (Trial
court op. at 5.) The court recognized that the initial notices of violation were issued in
December 2017 and January 2018 and, thus, Pien had an entire year to bring the subject
property into compliance with The Philadelphia Code. The court also stated that at the
September 13, 2018 hearing, Pien was given an additional 60 days to come into full
compliance. The trial court also explained that the rule of law was not suspended
during holiday weekends and, in fact, Pien had full access to the court during the time
complained of, as evidenced by the number of emergency motions filed. Id.
2
After filing her appeal, Pien filed an emergency motion to stay with this Court, asking us to
stay the trial court’s order and allow the tenants back in the Property. The motion was denied on
January 11, 2019. Subsequently, Pien filed an emergency motion to stay and/or writ of mandamus
with this Court, requesting that we order the trial court to hold a hearing because Pien had resolved
most of the violations. However, we also denied that motion.
5
Additionally, the trial court determined that its decision to not conduct a
hearing between the December 20, 2018 hearing and the December 31, 2018
compliance deadline did not violate Pien’s due process rights. Id. The trial court stated
that the purpose of the December 20, 2018 hearing was to ensure that the violations at
the Property had been corrected and that, despite Pien’s earlier assurances that the
necessary repairs would be made, Pien had failed to address the Fire Code violations
as of that date. The trial court concluded that Pien had continued to have tenants
occupy the Property, “which without the proper [c]ertificate of [o]ccupancy resulted in
the [c]ourt ordering the [P]roperty to be vacated on December 31, 2018 based on
[Pien’s] failure to bring the [P]roperty into compliance within a year.” Id. at 5-6.
The trial court further concluded that it had not violated Pien’s due process
rights by deeming the averments in the complaint as admitted before Pien appeared in
court with an interpreter. Specifically, the trial court found as follows:
In prior hearings [Pien] fully engaged in the full discussions
at the Bar of the Court without the use of an interpreter.
[Pien] was able to ask questions and provide responses to
questions posed to her during each hearing. Her interactions
with the [i]nspectors from [L&I], the Assistant City Solicitor
and the [c]ourt gave no indication that she required an
interpreter. [Pien] never asked for an interpreter at any of the
hearings. It was the Assistant City Solicitor who, in an
abundance of caution, requested the use of the interpreter
because [Pien] maintained that she did not understand the
discussions of the City when the issue of outstanding fines
were posed to [Pien].
Id. at 6.
6
Discussion
On appeal,3 Pien argues that the trial court violated her due process rights
by (1) deeming the averments in the City’s complaint as admitted before Pien had
appeared in court with an interpreter; (2) issuing an 11-day deadline over a holiday
weekend for Pien to obtain a certificate of occupancy for the Property; and (3) failing
to provide a hearing between the December 20, 2018 hearing and the December 31,
2018 deadline for the court to monitor compliance with its order. Pien also argues that
the trial court lacked subject matter jurisdiction to hear all aspects of the case and that
the trial court’s refusal to hear any aspect of the case while it is on appeal demonstrates
sufficient bias such that, on remand, a new judge should be assigned.
We first address whether the trial court violated Pien’s due process rights
in deeming the averments in the complaint admitted. Pien argues that although she has
resided in the United States for a number of years, she was born in China and her
comprehension of the English language is minimal. Pien contends that at the
September 13, 2018 hearing, she mistook the trial court’s request that she question the
L&I inspector about the violations. Pien maintains that the trial court erred in finding
that she was able to engage in discussion, ask questions, and provide responses in prior
hearings. Pien also alleges that contrary to the trial court’s finding that Pien never
requested an interpreter, Pien, in fact, requested an interpreter at the November 8, 2018
hearing.
Given that the December 20, 2018 hearing was the first instance in which
Pien appeared in court with an interpreter and Pien demonstrated, on that date, that she
3
This Court’s review of a grant of a permanent injunction is limited to determining whether
the trial court abused its discretion or committed an error of law. Buffalo Township v. Jones, 813
A.2d 659, 664 n.4 (Pa. 2002). “Ultimately, the grant or denial of a permanent injunction will turn on
whether the lower court properly found that the party seeking the injunction established a clear right
to relief as a matter of law.” Id.
7
was attempting to remedy the violations, Pien argues that the trial court erred in
deeming the averments in the complaint admitted for failure to file an answer and in
granting a permanent injunction. Pien asserts that a litigant has a due process right to
understand a proceeding and, therefore, must be provided with a translator when
necessary. Pien contends that “[t]o default a Defendant, even in an equitable trial, who
has made an on the record request for an interpreter, before that Defendant has been
apprised by that interpreter of the actual contents of the claim against them offends
basic notions of due process.” (Pien’s Br. at 12.) Pien also maintains that even though
the complaint had been physically given to her and allowed her to appear in court, she
did not understand the nature of the violations against her or that she was required to
file an answer to the complaint. Id.
Conversely, the City contends that because Pien did not raise any due
process arguments before the trial court, they are waived on appeal. The City also
argues that the trial court was not obligated to appoint an interpreter earlier where Pien
did not request one and did not appear to need one. The City observes that Pien
understood the earlier proceedings well enough to actively participate and to engage
with the trial court and L&I in English. It also notes that when Pien finally did request
an interpreter, the trial court readily granted the request. The City maintains that the
record supports the trial court’s credibility determination that a language barrier was
not the cause of Pien’s noncompliance and that she understood the violations.
The City also argues that although Pien faults the trial court for not
appointing an interpreter before the December 20, 2018 hearing, it is typically the
party’s obligation to request an interpreter if one is needed, the trial court is not required
to sua sponte appoint an interpreter whenever a party appears to speak English as a
second language, and the trial court’s choice to do so, or not, falls squarely within its
8
discretion. The City alleges that a court does not abuse its discretion where a party has
not requested an interpreter and the party appears to understand the proceedings well
enough that any need for an interpreter is not readily apparent. The City observes that
Pien did not request an interpreter at the September hearing and understood the court
notices and proceedings well enough to appear at the appointed times.
The “constitutionally protected rights afforded by due process . . .
include[] the right to be heard which, in certain circumstances, include[s] the right to
assistance from an interpreter during the proceedings itself.” D.Z. v. Bethlehem Area
School District, 2 A.3d 712, 720 (Pa. Cmwlth. 2010); see also Commonwealth v.
Wallace, 641 A.2d 321, 325 (Pa. Super. 1994) (“A defendant’s ability to use an
interpreter encompasses numerous fundamental rights. The failure to understand the
proceedings may deny him his right to confront witnesses against him, his right to
consult with an attorney, or his right to be present at his own trial.”). However, “[t]he
concept of due process is a flexible one and imposes only such procedural safeguards
as the situation warrants.” D.Z., 2 A.3d at 721. Therefore, “[d]emonstrable prejudice
is a key factor in assessing whether procedural due process was denied.” Id. The mere
demonstration of a potential procedural error, without a showing of resulting harm or
prejudice, is not a sufficient reason to overturn a lower tribunal’s decision. Id. at 719.
“The decision to use an interpreter rests in the sound discretion of the trial
judge.” Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976). Such a decision is
discretionary “because numerous factors such as the complexity of the issues and
testimony and language ability of defendant must be taken into consideration.” Id.
Therefore, “we review a trial court’s decision to use or not use an interpreter for abuse
of discretion.” D.Z., 2 A.3d at 722. This is a high standard, which requires that we
9
abide by a trial court’s decision absent “bad faith, fraud, capricious action or abuse of
power.” Id.
Due to the important rights involved, the trial court is required to
“consider all relevant factors in its initial determination of need. If it becomes apparent
that an interpreter is necessary during the trial, the court should, on its own motion or
on motion of a party, make an interpreter available.” Pana, 364 A.2d at 898.
Accordingly, “where the court is put on notice that a defendant has difficulty
understanding or speaking the English language, it must make unmistakably clear to
him that he has a right to have a competent translator assist him.” In re Garcia, 984
A.2d 506, 511 (Pa. Super. 2009); see also Section 4412 of the Judicial Code, 42 Pa.C.S.
§4412 (providing that “[u]pon request or sua sponte, if the presiding judicial officer
determines that a principal party in interest . . . has a limited ability to speak or
understand English, then a certified interpreter shall be appointed”). However, where
“no request for an interpreter has been made and the defendant appears to comprehend
the nature of the proceedings and the charges against him, the trial court does not abuse
its discretion by proceeding without appointing an interpreter.” In re Garcia, 984 A.2d
at 511.
Here, the trial court did not abuse its discretion in deeming the averments
in the complaint admitted, due to Pien’s failure to answer the complaint, following the
first hearing at which Pien appeared with an interpreter. Pien argues that she clearly
did not understand the proceedings at the September 13, 2018 hearing, such that the
trial court should have appointed an interpreter. At that hearing, after the L&I inspector
testified that the Property lacked the necessary certificates of occupancy, Pien was
asked if she had questions for the inspector. (R.R. at 41a.) Pien replied, “[F]irst floor,
florist floor, there five years, never changed. Second floor, ten years, ten years been
10
there. Fourth floor been there nine years. Third floor apartment, almost ten years never
changed.” Id. The trial court explained to her that she still needed to obtain the
necessary certificates of occupancy. Id. Pien replied, “I first—the florist is a business.
One there is an apartment.” (R.R. at 42a.) The trial court asked if she had
documentation to show that she was in good standing with respect to the certificates of
occupancy, and explained that when a business changes, a landowner must obtain new
certificates of occupancy. Id. Pien responded, “[B]ut ten years it has been.” Id. The
court then explained that it did not matter how long the business had been there because
she had never obtained new certificates of occupancy when the businesses changed.
Id.
At the hearing, Pien also provided a packet of documents, which included
a sprinkler certification that was accepted by the City. (R.R. at 43a.) The court
explained to Pien that she still needed to obtain certificates of occupancy for the second,
third, and fourth floors of the Property, as well as a fire alarm certification and fire
connection. Id. The court then advised Pien that although the City was not seeking a
statutory fine at that time, she needed to be mindful that if she did not make progress
in remedying the outstanding violations the court could impose a fine. The court stated,
“I will ask that you work towards getting the necessary documentation.” Id. Pien
replied, “I will get some time?” Id. Accordingly, the court granted her an additional
60 days to fix the violations and set a subsequent hearing date of November 8, 2018.
At the November 8, 2018 hearing, the assistant City solicitor requested an
interpreter for Pien at the beginning of the hearing. The assistant City solicitor stated
that he thought Pien understood very little of what he said and that he “tried to make it
crystal clear that the nature of the violations are very serious” because Pien did not
have certificates of occupancy, and there were sprinklers missing. (R.R. at 46a.) The
11
assistant City solicitor stated that he could not “stress enough that she need[ed] to get
an individual to help her, some sort of assistance.” Id. He noted that although he tried
to explain the best he could, he was asking for a Mandarin interpreter “because,
ultimately, at the next hearing, [he might] request to vacate the building.” Id. The trial
court ordered an interpreter for December 20, 2018. Pien then explained, in English,
that her mother had just passed away, that she needed to visit China, and that she would
not return until the middle of December. Id. She also testified in English that she
needed “to call somebody to fix the problem.” Id. The trial court stated, “You can
work that out with the City in the meantime, but you will come back to court on
December 20th. We’ll have an interpreter.” Id. At that point, the assistant City
solicitor observed that if Pien understood the court, they could conduct the hearing
then. The trial court stated, “You addressed the [c]ourt. You’re not having a problem
addressing the [c]ourt. Do you need an interpreter?” Pien responded, “Yes.” Id.
At the December 20, 2018 hearing, Pien appeared with an interpreter.
Following that hearing, the trial court deemed the unanswered averments in the
complaint admitted and granted a permanent injunction.
The trial court did not abuse its discretion in either not appointing an
interpreter before the December 20, 2018 hearing or deeming the averments in the
complaint admitted. First, it is notable that Pien received the initial notices of violation
in December 2017 and the City’s complaint in July 2018. As required by Rule 1018.1
of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 1018.1, the complaint
contained a “notice to defend,” advising Pien that she was required to respond to the
complaint within 20 days of service. At no time during the period between receiving
the notices of violation and complaint and the court granting the permanent
injunction—one year in the case of the notices and five months in the case of the
12
complaint—did Pien indicate that she did not understand the nature of the violations or
what was contained in the complaint. Moreover, Pien displayed a working knowledge
of the English language because she understood the trial court’s directives to appear in
court on four separate occasions between the filing of the complaint and the court’s
granting of the permanent injunction on December 20, 2018.
Second, at the September 13, 2018 hearing, Pien appears to have had a
basic understanding of the violations. In fact, Pien remedied one of the violations at
that hearing by providing a sprinkler certification to the City. Pien also recognized that
she needed to provide additional documentation to the City. While the September 13,
2018 transcript appears to demonstrate that Pien was confused about the legal necessity
of obtaining certificates of occupancy given that the businesses on the Property had
already existed for several years, contrary to Pien’s assertion the transcript does not
demonstrate that Pien did not understand the language spoken at the hearings or that
“[s]he mistook the [c]ourt’s request that she question the [i]nspector about the
violations allegedly found for a request that she detail the tenants.” (Pien’s Br. at 8.)
Third, prior to being encouraged to do so by the City at the November 8,
2018 hearing, Pien never requested an interpreter. Once the City requested an
interpreter at the November 8, 2018 hearing, the trial court immediately granted the
request. After granting the request, Pien continued to address the court in English about
her upcoming trip to China and intent to hire someone to fix the violations.
The trial court found that at the prior hearings, Pien engaged in discussions
with the bar and court in a meaningful fashion without the use of an interpreter, that
she was able to ask questions and provide responses posed to her, that her interactions
gave no indication that she required an interpreter, and that she never requested an
interpreter. (Trial court op. at 6.) Given that there is support in the record for these
13
findings and there is no evidence in the record that Pien ever indicated that she could
not understand the complaint or notices of violation, or needed an interpreter to
understand such documents, the trial court did not abuse its discretion in deeming the
averments to the complaint admitted due to Pien’s failure to respond, following the
December 20, 2018 hearing. See, e.g., In re Garcia, 984 A.2d at 512 (holding that
where party did not request an interpreter and appeared to understand nature of
proceedings, trial court did not abuse discretion in not appointing interpreter for him);
Wallace, 641 A.2d at 327 (holding that where necessity of an interpreter was not readily
apparent and party never requested an interpreter, trial court did not abuse its discretion
in failing to sua sponte appoint an interpreter).
Further, given the lack of record evidence that Pien was unable to
understand the complaint or that either appointing an interpreter earlier or delaying the
grant of the permanent injunction would have enabled Pien to answer the complaint,
Pien has not proven “demonstrable prejudice” such that we could conclude she was
denied due process. D.Z., 2 A.3d at 722. In considering Pien’s assertions, we remain
mindful of the axiom that “any lay person choosing to represent [herself] in a legal
proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise
and legal training will prove [her] undoing.” Id. at 720. Here, Pien’s failure to respond
to the City’s complaint stemmed more from her decision to proceed pro se, rather than
a failure to understand English or from not having an interpreter appointed earlier.
Next, we address whether the trial court violated Pien’s due process rights
by imposing an 11-day deadline to obtain the necessary certificates of occupancy. Pien
contends that the 11-day deadline was impossible given that it fell on a long weekend.
She argues that she brought evidence of the work she was doing to bring the Property
into compliance to every hearing and did not fully understand the permits she needed
14
to obtain. Pien relies on Mathews v. Eldridge, 424 U.S. 319 (1976), which lays out the
basic parameters of a due process analysis, to argue that the trial court violated her due
process rights in granting a permanent injunction. Pien maintains that, rather than grant
a permanent injunction, which had the effect of displacing the tenants, the trial court
should have granted a temporary or partial certificate of occupancy.
In contrast, the City contends that Pien’s characterization of an impossible
11-day deadline is belied by the record. Rather than only having 11 days to remedy
the violation, the City alleges she was served with the initial notice in December 2017,
was provided an extra 60 days in September, and an additional month in November.
The City argues that The Philadelphia Code authorizes it to immediately issue cease
operations orders whenever a property is illegally occupied but, here, Pien had a year
to fix the violations before an injunction was issued. The City also notes that the
Philadelphia Administrative Code authorizes L&I to immediately issue a cease
operations order where a property lacks adequate permits and that the 11-day deadline
imposed by the trial court was in reality a grace period to allow Pien’s tenants extra
time to vacate the Property. The City contends that the trial court met the requirements
for granting a permanent injunction.
A procedural due process analysis generally requires an analysis of three
factors including (1) “the private interest that will be affected by the official action”;
(2) “the risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards”; and
(3) the “Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.” Mathews, 424 U.S. at 335; City of Philadelphia v. Perfetti, 119 A.3d 396, 403,
(Pa. Cmwlth. 2015).
15
Here, Pien’s private interest, i.e., the ownership and enjoyment of her
Property, was obviously affected by the permanent injunction. However, given the
circumstances of what occurred, there was an insignificant risk of an erroneous
deprivation of Pien’s interest in her Property. First, while Pien argues that she only
had 11 days to correct the violations, Pien initially received notice of the violations
over a year before the permanent injunction was granted and was served with the
complaint 5 months before the permanent injunction was granted. This timeframe
limited any risk of an erroneous deprivation of Pien’s property interest. Second, the
trial court’s decision to hold three hearings before granting the permanent injunction
also reduced the risk of any erroneous deprivation of property rights.
Moreover, based on the serious nature of the violations involved, there
was limited value in allowing additional time to remedy the violations before granting
a permanent injunction. Finally, the City has significant health and safety interests in
ensuring compliance with its certificate of occupancy and Fire Code ordinances.
Requiring additional time before granting a permanent injunction for violations of such
ordinances would frustrate the City’s desire to ensure compliance with its ordinances
and could negatively impact the health and safety of its residents.
Further, the party seeking a permanent injunction “must establish that (1)
the right to relief is clear, (2) there is an urgent necessity to avoid an injury which
cannot be compensated for by damages, and (3) greater injury will result in refusing
rather than granting the relief requested.” Big Bass Lake Community Association v.
Warren, 23 A.3d 619, 626 (Pa. Cmwlth. 2011). The case for a permanent injunction
“must be made by a very strong showing, one stronger than that required for a
restraining-type injunction.” Id. As pertains to the instant matter, section A-701.1 of
the Administrative Code requires certificates of occupancy prior to occupancy of a
16
building, including whenever a change of occupancy occurs. Philadelphia
Administrative Code, §A-701.1. Further, section A-505.1 of the Administrative Code
provides that L&I and the Philadelphia Fire Department are
authorized to issue Cease Operation Orders directing that use
and other activities cease immediately and that the premises
be vacated pending compliance with such orders whenever .
. . [a]ny occupancy, use, or other activity is being performed
in or on any building . . . . without required Zoning and/or
Use Registration permits, Certificate of Occupancy or other
permits.
Philadelphia Administrative Code, §A-505.1. “Upon notice of the Cease Operations
Order all occupancy, use or other activity shall stop immediately and the premises shall
be vacated of all employees, patrons and occupants until there has been compliance
with the terms of the Cease Operations Order.” Section A-505.3 of the Administrative
Code, Philadelphia Administrative Code, §A-505.3.
Since the Administrative Code authorizes a Cease Operations Order, the
City met the first element of the permanent injunction standard, i.e., a clear right to
relief. The City also satisfied the second element as the continuing violation of the
Administrative Code and Fire Code constitutes an irreparable harm, which means there
is an urgent necessity to remedy such violations. See, e.g., Peters Township v. Russell,
121 A.3d 1147, 1152 (Pa. Cmwlth. 2015) (holding that a violation of an ordinance
constitutes an irreparable harm that justifies the granting of an injunction);
Pennsylvania Central Realty Investment, Inc. v. Township of Middlesex, 566 A.2d 931,
934 (Pa. Cmwlth. 1989) (same). Finally, the City met the third element given that there
are substantial health and safety risks resulting from the Property’s lack of a fire
communication link, fire hose connector, and certificates of occupancy certifying the
Property as safe for its occupants. Due to these risks, there was a strong likelihood that
17
greater injury would result in refusing rather than granting the relief requested.
Accordingly, because the trial court’s 11-day deadline occurred after Pien had notice
of and chose not to remedy the violations for over a year and the trial court met the
standard for issuing a permanent injunction, the trial court did not violate Pien’s due
process rights in imposing the deadline.4
Next, we address whether the trial court had subject matter jurisdiction to
rule on this particular matter. Pien contends that the procedures and ordinances relied
on by L&I in the trial court impermissibly mixed criminal law and equity, such that the
trial court lacked subject matter jurisdiction to rule on them. Pien maintains that a court
of equity must decline jurisdiction in criminal matters unless there exists no adequate
remedy at law. In support of its argument, Pien cites to a 1956 version of The
Philadelphia Code that permitted a penalty of imprisonment for violations of the Code.
Accordingly, Pien alleges that the penalty provisions under The Philadelphia Code are
“criminal statutes” and that proper jurisdiction lied with a magisterial district judge.
(Pien’s Br. at 21.) Pien acknowledges, however, that 1995 amendments to The
Philadelphia Code eliminated the imprisonment section.
4
Similarly, Pien maintains that the trial court violated her due process rights in not holding
an additional hearing between the December 20, 2018 hearing and the December 31, 2018 deadline
in order to monitor compliance with its order. Pien argues that due process required the trial court to
conduct another hearing prior to granting the permanent injunction, given that Pien may well have
corrected the violations before the deadline. Due to the trial court’s failure to hold a hearing, Pien
was forced to seek an emergency stay.
Like our resolution of the preceding issue, because Pien had over a year to remedy the
violations at the Property, and failed to do so, the trial court did not violate Pien’s due process rights
in not conducting another hearing in order to measure compliance before granting the amended order
and permanent injunction on December 31, 2018. In fact, at the December 20, 2018 hearing, Pien
stated, on the record, that she would have all of the violations remedied by the December 31, 2018
deadline (R.R. at 52a-54a); however, there is no evidence that Pien did so.
18
In contrast, the City argues that it is explicitly authorized to bring
enforcement matters in courts of common pleas. The City also asserts that this case is
a civil code enforcement matter and not a criminal matter. Specifically, the City
contends that The Philadelphia Code provisions at issue only result in fines in the event
of a violation and do not provide for imprisonment.
Section 2 of the Municipal Housing Ordinance Authorization Law5
provides that when a building is used in violation of an ordinance, the corporate
authorities of any city of the first class “may institute appropriate actions or
proceedings at law or in equity to prevent and restrain” such “use and to restrain,
correct, or abate such violation, and to prevent the occupancy of said building.” 53
P.S. §4102. It is also well-established that “proceedings charging violations of a
municipal ordinance which provides for imprisonment upon conviction or failure to []
pay a fine or penalty are criminal proceedings governed by the Pennsylvania Rules of
Criminal Procedure.” Town of McCandless v. Bellisario, 709 A.2d 379, 381 (Pa. 1998)
(emphasis in original). However, “the same is not true for municipal ordinances that
do not provide for imprisonment upon conviction or failure to pay a fine or penalty,
which by definition are not Penal Laws” and, therefore, are not included within the
definition of criminal proceedings under the Rules of Criminal Procedure. Bellisario,
709 A.2d at 381 (emphasis in original); Lower Southampton Township v. Dixon, 756
A.2d 147, 151 (Pa. Cmwlth. 2000). Thus, in municipal ordinance enforcement actions
where imprisonment is not a remedy for a conviction or failure to pay a fine, the Rules
of Criminal Procedure are inapplicable; instead, the Rules of Civil Procedure apply to
such actions. Dixon, 756 A.2d at 151; see also Commonwealth v. Whiteford, 884 A.2d
364, 367 (Pa. Cmwlth. 2005) (holding that where an ordinance did not provide for
5
Act of April 14, 1937, P.L. 313, as amended, 53 P.S. §4102.
19
imprisonment in lieu of payment of a fine, the violations charged were civil, rather than
criminal, in nature).
Here, Pien was cited for violating section A-701.1 of the Administrative
Code and sections F-901.6 and F-915.1 of the Fire Code. See R.R. at 34a-35a. Pursuant
to the Administrative Code and The Philadelphia Code, violators of these sections are
only subject to fines and there is no possibility of imprisonment. See Sections A-601.1-
601.3 of the Philadelphia Administrative Code, Administrative Code, §§A-601.1-
601.3; Sections 1-109(1)-1.109(3) of The Philadelphia Code, The Philadelphia Code,
§§ 1-109(1)-1.109(3). Because the ordinances that Pien was found to have violated do
not provide for imprisonment, such ordinances are civil, rather than criminal in nature.
Accordingly, the trial court had subject matter jurisdiction to both enforce the
ordinances at issue and grant an injunction.
Finally, we address whether the trial court should have recused itself. Pien
observes that in the January 17, 2019 and February 28, 2019 hearings, the trial court
refused to hear anything about the case because it had already been appealed to this
Court. Pien argues that “[t]he lower [c]ourt’s refusal to hear any matter concerning
this case has been obstinate and, frankly, somewhat unbecoming of a Judge of the
[c]ourt of [c]ommon pleas.” (Pien’s Br. at 31.) Pien also criticizes the trial court for
not including any case or statutory citations in its Rule 1925(a) opinion and for not
considering the evidence introduced by Pien, pro se, or by Pien’s counsel in his post-
trial motions. Pien contends that the only conclusion that can be drawn is that the trial
judge is “incredibly offended” that she has been appealed and has “an antagonistic view
of counsel who appeal her in circumstances which imply she has violated the due
process rights of litigants.” (Pien’s Br. at 32.) Therefore, Pien requests a different
judge on remand.
20
In opposition, the City argues that Pien is precluded from making a request
to preclude a trial court judge for the first time on appeal following an unfavorable
result, but rather, was required to raise her objection at the earliest possible time. The
City also maintains that Pien has not met her heavy burden of demonstrating evidence
of actual bias, prejudice, or unfairness sufficient to raise a substantial doubt regarding
the trial judge’s ability to preside impartially.
Initially, we note that under Pennsylvania law it is incumbent upon a party
“seeking recusal or disqualification to raise the objection at the earliest possible
moment, or that party will suffer the consequence of being time barred.” Lomas v.
Kravitz, 170 A.3d 380, 389 (Pa. 2017); see also In re Appeal of Springfield Hospital
Folio No. 42-00-06625-01, 179 A.3d 632, 637 (Pa. Cmwlth. 2018) (same). The
“earliest possible moment” occurs as soon as “the party knows of the facts that form
the basis for a motion to recuse.” Lomas, 170 A.3d at 390. Thus, “[i]f the party fails
to present a motion to recuse at that time, then the party’s recusal issue is time-barred
and waived.” Id.
Here, Pien primarily faults the trial court for refusing to hear any matter
concerning the case while it is being appealed to this Court. Pien was aware of the
facts forming the basis for her motion to recuse at the January 17, 2019 and February
28, 2019 hearings when the trial court refused to take further action on the case, yet,
never filed a motion to recuse and only raised the issue for the first time in her brief
filed with this court. Because Pien did not present a motion to recuse immediately after
the January and February 2019 hearings the issue is likely time-barred and waived.
However, even if the issue were not waived, Pien has failed to allege facts
that would necessitate the trial judge’s recusal. “The party who asserts a trial judge
must be disqualified bears the burden of producing evidence establishing bias,
21
prejudice, or unfairness necessitating recusal.” Commonwealth v. Druce, 848 A.2d
104, 108 (Pa. 2004); see also Reilly by Reilly v. Southeastern Pennsylvania
Transportation Authority, 489 A.2d 1291, 1301 (Pa. 1985); Springfield Hospital, 179
A.3d at 637. “Adverse rulings alone do not, however, establish the requisite bias
warranting recusal, especially where the rulings are legally proper.” Commonwealth
v. Abu-Jamal, 720 A.2d 79, 90 (Pa. 1998).
Pien argues that the trial judge was biased for refusing to rule on any
matters concerning the case while it was being appealed. However, Rule 1701(a) of
the Pennsylvania Rules of Appellate Procedure provides that “[e]xcept as otherwise
prescribed by these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court . . . may no longer proceed further in the matter.” Pa.R.A.P.
1701(a). Moreover, Rule 1701(b) of the Rules of Appellate Procedure, titled
“Authority of a trial court or agency after appeal,” provides, in part, as follows:
After an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may:
(1) Take such action as may be necessary to preserve the
status quo . . . and take other action permitted or required by
these rules or otherwise ancillary to the appeal or petition for
review proceeding.
(2) Enforce any order entered in the matter, unless the effect
of the order has been superseded as prescribed in this chapter.
Pa.R.A.P. 1701(b) (emphasis added). Because a court’s decision to enforce an order
entered in a matter, after it has already been appealed to this Court, is purely
discretionary, the trial court’s decision to refuse to rule on any matters concerning this
case while it was on appeal was legally proper and does not provide evidence of bias.
See Abu-Jamal, 720 A.2d at 90. Further, the fact that the trial court used only limited
22
citations and did not discuss certain evidence presented by Pien or her counsel in its
1925(a) opinion does not, in and of itself, establish evidence of “bias, prejudice, or
unfairness necessitating recusal.” See Druce, 848 A.2d at 108.
Conclusion
Because Pien never indicated that she was unable to understand the
complaint, never requested an interpreter to assist her in reading the complaint, and has
not demonstrated that further delaying the grant of a permanent injunction would have
enabled her to respond to the complaint, the trial court did not violate Pien’s due
process rights when it deemed the answers to the complaint admitted after the first
hearing at which Pien appeared with an interpreter. Further, given that Pien had notice
of the violations for over a year before the trial court granted the permanent injunction,
the trial court did not violate her due process rights by imposing an 11-day deadline,
after the final hearing, to remedy the violations and by not conducting another hearing
to monitor compliance with its order. Finally, the trial court had subject matter
jurisdiction and Pien has not demonstrated that the trial judge was biased or prejudiced
such that it necessitated her recusal. Accordingly, for the foregoing reasons, the trial
court’s December 31, 2018 order is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia :
: No. 1738 C.D. 2018
v. :
:
Shih Tai Pien, :
Appellant :
ORDER
AND NOW, this 20th day of December, 2019, the December 31, 2018
order of the Court of Common Pleas of Philadelphia County is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge