Document Info

DocketNumber: 529 C.D. 2022

Judges: Dumas, J.

Filed Date: 5/29/2024

Status: Non-Precedential

Modified Date: 12/13/2024

  •           IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    City of Philadelphia,                    :
    Appellant             :
    :   No. 529 C.D. 2022
    v.                          :
    :   Argued: November 9, 2023
    Janice Hammond                           :
    BEFORE:      HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE ELLEN CEISLER Judge
    HONORABLE LORI A. DUMAS, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE DUMAS                                            FILED: May 29, 2024
    The City of Philadelphia (City) appeals from a judgment entered in the
    Court of Common Pleas of Philadelphia County (trial court) on December 11, 2023,
    which imposed $250 in fines and fees upon Janice Hammond (Hammond) for
    persistent fire code safety violations on her property that spanned more than two
    years and posed a danger to the surrounding neighborhood. Upon review, we
    conclude that this judgment constitutes an abuse of the trial court’s discretion. We
    therefore vacate the judgment and remand for the trial court to recalculate
    appropriate fines and costs.
    I. BACKGROUND1
    Hammond owns a three-unit residential rental property located at 908
    Duncannon Avenue in Philadelphia.              In June 2017, the City’s Department of
    Licenses and Inspections (Department) found the property infested with insects and
    generally unsanitary, and that Hammond illegally operated the property as a rooming
    house. Accordingly, the City issued a “cease operations” notice. Hammond never
    corrected the issues, and the notice remained in place.
    On or about April 29, 2019, the Department inspected the property and
    discovered that tenants were again living at the property. In addition, the Department
    found the fire alarm system was inoperable and had not been inspected. The
    Department issued a notice of violation citing the City Fire Code.2                  The notice
    informed Hammond that daily fines up to $1300 could be imposed.3 Additionally,
    the notice informed Hammond that failure to comply would result in an automatic
    assessment of reinspection fees.
    On May 1, 2019, upon reinspection, the Department found that the
    violations had not been corrected. Thereafter, on June 4, 2019, the Department again
    reinspected the property, found the fire alarm system remained inoperable, and
    issued a second “cease operations” notice. Hammond did not appeal these notices.
    In July 2021, the City commenced this action seeking statutory fines
    for Hammond’s failure to abate the ongoing Fire Code violations. The trial court
    held hearings in February and March 2022.
    1
    The relevant facts are not in dispute. We derive this background from the Notes of
    Testimony (N.T.) and the exhibits introduced at two hearings. See N.T. Hr’g, 2/24/22; N.T. Hr’g,
    3/24/22.
    2
    The Fire Code is found in Title 4 of the Philadelphia Code. See City of Phila., Pa. Code
    (Phila. Code), Title 4, Subcode F (2020) (Fire Code).
    3
    See Section 1-109 of the Phila. Code.
    2
    At the initial hearing, the City established that the property was an
    attached building located in a high-traffic, residential and commercial neighborhood.
    In addition, the City introduced evidence demonstrating that Hammond owned
    numerous properties in the City. Hammond also conceded that she was aware of the
    violations by June 2019. At the close of the hearing, the trial court informed the
    parties that it would continue the matter for 30 days and asked the Department to
    reinspect the property for compliance.
    At the second hearing, the City informed the trial court that it had
    reinspected the property and found that the fire alarm system was inoperable.
    Additionally, there were numerous other safety defects apparent.4 However, when
    the City’s inspector arranged for emergency services inspectors to ascertain whether
    the building was structurally deficient or imminently dangerous, Hammond denied
    further access to the property.
    Following these hearings, the City requested that the trial court impose
    fines and fees totaling $1,028,600, for violations that persisted 869 days. Initially,
    the trial court issued a “final order” imposing fines and fees as requested by the City.
    See Trial Ct. Order, 3/25/22, at 2 (unpaginated) (Initial Order). Hammond timely
    sought reconsideration, which the trial court granted and issued an amended “final
    order” imposing $250 in fines and fees.                   See Trial Ct. Order, 4/6/22, at 2
    (unpaginated) (First Amended Order).                   The trial court offered no immediate
    4
    City Inspector Natasha Lee testified:
    The property is currently vacant and severely neglected inside. A complete
    renovation is necessary prior to safe occupancy. There were multiple electrical
    defects, exposed ceiling joists, large wall surface holes and defects, and it was
    observed on all levels. There were hazardous, dilapidated conditions found inside
    the basement.
    N.T. Hr’g, 3/24/22, at 6.
    3
    explanation for this amendment. See id. However, the court issued a second
    amended “final order,” explaining that its initial order was “inaccurate” and “a
    clerical error” and reaffirming $250 in fines and fees. See Trial Ct. Order, 4/21/22,
    at 2-4 (unpaginated) (Second Amended Order).
    On May 20, 2022, the City filed a notice of appeal and thereafter filed
    a court-ordered Pa.R.A.P. 1925(b) statement.5                  The trial court issued a brief,
    responsive opinion.6
    II. DISCUSSION7
    A. The Parties’ Arguments
    The City asserts that the nominal fine imposed by the trial court
    constitutes a gross abuse of its discretion. City’s Br. at 19. According to the City,
    Hammond had notice of the “grave safety violations” but nonetheless waited years
    to remedy them. Id. These violations displaced tenants and put neighbors at risk.
    5
    On June 3, 2022, the trial court directed the entry of judgment. See Trial Ct. Order, dated
    6/3/22. On June 6, 2022, the trial court vacated the entry of judgment. See Trial Ct. Order, dated
    6/6/22. For both orders, notice was given on June 6, 2022. See Pa.R.Civ.P. 236. Upon discovering
    this procedural quirk, this Court directed the City to perfect its appeal by filing a praecipe for entry
    of judgment. See Order, Cmwlth. Ct. Dkt. No. 529 C.D. 2022, 11/22/23. The City complied, and
    judgment was entered on December 11, 2023. Thus, this appeal may proceed. See Johnston the
    Florist, Inc. v. TEDCO Constr. Corp., 
    657 A.2d 511
    , 514-15 (Pa. Super. 1995) (en banc) (holding
    that the Court may entertain an appeal in which an appellant prematurely filed a notice of appeal
    before the trial court entered judgment).
    6
    Before addressing the City’s substantive issues, the trial court opined that the City had
    appealed improperly from an order denying reconsideration. See Trial Ct. Op., 7/18/22, at 2-3.
    This is incorrect. See Notice of Appeal, 5/20/22 (specifically appealing the Second Amended
    Order). Further, as set forth, supra note 5, the City’s appeal was perfected upon the entry of
    judgment.
    7
    Generally, a trial court’s assessment of a civil penalty is reviewed for an abuse of
    discretion. See Borough of Kennett Square v. Lal, 
    643 A.2d 1172
    , 1175 (Pa. Cmwlth. 1994). An
    abuse of discretion is shown “when the law is overridden or misapplied, or when the judgment
    exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will.” Blair v.
    Zoning Hr’g Bd. of Twp. of Pike, 
    676 A.2d 760
    , 761 (Pa. Cmwlth. 1996).
    4
    See 
    id.
     Moreover, the City asserts, Hammond is a sophisticated landlord that owns
    multiple properties in the City. See 
    id.
    The City maintains that the trial court should have considered both
    mitigating and aggravating factors. See 
    id.
     at 22 (citing Lal, 
    643 A.2d at 1175
    ; JPR
    Holdings LLC v. City of Phila (Pa. Cmwlth., No. 820 C.D. 2019, filed Jan. 8, 2021),
    
    2021 WL 71711
    ).8 However, according to the City, the trial court only considered
    mitigating factors, which were factually inaccurate or otherwise inadequate to justify
    the fine, particularly when balanced against several aggravating factors. Id. at 19,
    22. Moreover, according to the City, this Court has long recognized that large fines
    can be appropriate in cases where the property owner has failed to remedy violations
    for excessive periods, particularly when coupled with other aggravating factors. See
    id. at 29 (citing several cases).
    In response, Hammond suggests that “[t]he trial court properly
    exercised its discretion in awarding a nominal fine against a senior citizen who
    owned the property for over 25 years and ceased all rental activity since the [c]ease
    [o]perations [n]otice.” Hammond’s Br. at 7. Hammond also suggests that there was
    “very limited” evidence of code violations. Id. at 9. According to Hammond,
    “[t]here is no imminent safety hazard.” Id. at 11 (asserting that the property’s
    vacancy lessened Hammond’s obligation to maintain a fire alarm system).
    In its reply brief, the City notes that Hammond’s property is attached
    and “shares a wall with another property;” thus, its vacancy is more properly viewed
    as an aggravating factor. City’s Reply Br. at 3. The City also reiterates that the trial
    court’s suggestion that the notice of violations was mailed to an incorrect address is
    simply inaccurate. Id. at 4. Finally, the City rejects Hammond’s attempt to elicit
    8
    Parties may cite to unreported decisions of this Court as persuasive authority. See 
    210 Pa. Code § 69.414
    (a)
    5
    sympathy based on her age. See id. at 5-7. According to the City, Hammond is a
    sophisticated landlord who purchased multiple properties as an investment but
    simply failed to maintain them properly. See id.
    B. Analysis
    The primary purposes of a fine or penalty are to (1) “punish violators”
    and (2) “deter future or continued violations.” Commonwealth v. Eisenberg, 
    98 A.3d 1268
    , 1283 (Pa. 2014). Moreover, this Court has approved the imposition of daily
    fines for excessive periods of noncompliance.         See, e.g., Woodruff v. Lower
    Southampton Twp., 
    516 A.2d 834
     (Pa. Cmwlth. 1986) (upholding $100 per day fine,
    totaling $157,600, for operating junkyard in violation of zoning ordinance); E. Penn
    Twp. v. Troxell (Pa. Cmwlth., No. 875 C.D. 2011, filed Apr. 5, 2012) (unreported)
    (upholding $500 per day, per violation fine, totaling $624,500, for parking
    commercial vehicles, raising pigs, storing junk, and impermissibly operating a
    trucking terminal). Substantial fines are even more appropriate where the underlying
    violations created an “imminent safety hazard.” See, e.g., City of Phila. v. Neely (Pa.
    Cmwlth., No. 480 C.D. 2022, filed Mar. 25, 2024) (Neely II), slip op. at 11, 
    2024 WL 1251373
    , at *5-6 (approving $113,800 in fines for property owner’s “repeated
    failures to correct the potentially hazardous conditions”); JPR Holdings LLC, slip
    op. at 12-13, 
    2021 WL 71711
    , at *4-5 (approving more than $50,000 in fines for
    violations that persisted more than two years).
    In arriving at an appropriate penalty, the trial court should weigh all
    aggravating and mitigating factors. Lal, 
    643 A.2d at 1175
    ; see generally JPR
    Holdings LLC. “The amount of the fine must bear some relationship to the gravity
    of the offense that it is designed to punish.” City of Phila. v. Neely (Pa. Cmwlth.,
    6
    1293 C.D. 2019, filed Aug. 30, 2021) (Neely I), slip op. at 15, 
    2021 WL 3853060
    , at
    *7 (quoting United States v. Bajakajian, 
    524 U.S. 321
    , 334 (1998) (cleaned up)).
    In our view, the nominal fee imposed by the trial court is manifestly
    unreasonable and constitutes an abuse of discretion. For the violations at issue
    herein, the Philadelphia Code permits daily fines up to $1,300. See Phila. Code § 1-
    109. These violations persisted for 869 days. Thus, the maximum fine authorized
    by the Philadelphia Code is $1,129,700.9 Instead, the trial court imposed merely
    $250 in fines and costs for safety violations that persisted more than two years. It is
    clear that the trial court failed to consider the gravity of these violations. This is an
    attached building in a busy residential and commercial district; there is a
    convenience store attached to Hammond’s property. Her failure to bring this
    property into compliance with the Fire Code posed a danger to the surrounding
    community.
    However, it is not merely the de minimis amount. We discern a further
    abuse of discretion in the trial court’s reliance on mitigating factors that were clearly
    erroneous. According to the trial court, “although [Hammond], an elderly woman,
    was in fact guilty of these violations, the penalty should be nominal . . . .” Trial Ct.
    Op. at 4. The trial court relied on three mitigating factors: (1) notice of the violations
    was mailed to the wrong address; (2) the property was vacant for several years; and
    (3) the violations were remedied in September 2021 (prior to the hearings). Id.
    Hammond testified at the first hearing that the City had mailed notices
    of the fire safety violations to a post office box that she had not used in over 20 years.
    N.T. Hr’g, 2/24/22, at 19. She also testified to her correct address and that, had she
    been aware of the violations sooner, she would have reacted immediately. Id. at 18.
    9
    Additionally, the City may charge mandatory reinspection fees totaling $650.
    7
    However, this testimony was impeached. At the second hearing, the City introduced
    evidence documenting that it had sent multiple notices to Hammond, including to
    her “correct address.” See N.T. Hr’g, 3/24/22, at 9-10.
    While the trial court correctly observed that the property was vacant for
    several years, that observation was hardly a mitigating factor. The property was
    vacant because the City had issued a notice for Hammond to cease operations at the
    property, thus forcing Hammond’s tenants to vacate the property more than a month
    after the City first informed Hammond of the fire safety violations. Further, this is
    an attached building located next to a convenience store. Thus, the property’s
    vacancy did little to ameliorate the danger to the surrounding neighborhood.
    Finally, Hammond’s apparent remediation of the fire safety violations,
    in September 2021, occurred more than two years after Hammond first learned of
    the violations. That simply cannot be a mitigating factor. Moreover, upon a
    subsequent visit to reinspect the property in March 2022, the fire alarm system
    remained inoperable. See id. at 6.
    III. CONCLUSION
    For these reasons, we conclude that the trial court abused its discretion
    when it imposed de minimis fines and costs that failed to adequately punish
    Hammond for her persistent failure to remediate Fire Code violations at her property.
    See Eisenberg, 98 A.3d at 1283; Blair, 
    676 A.2d at 761
    ; Neely II, slip op. at 11, 
    2024 WL 1251373
    , at *5-6; JPR Holdings LLC., slip op. at 12-13, 
    2021 WL 71711
    , at *4-
    5. Accordingly, we vacate the judgment and remand for the trial court to recalculate
    appropriate fines and costs after it reconsiders aggravating and mitigating factors
    8
    supported by the evidence. See Neely I, slip op. at 15, 
    2021 WL 3853060
    , at *7.
    LORI A. DUMAS, Judge
    9
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    City of Philadelphia,                    :
    Appellant             :
    :   No. 529 C.D. 2022
    v.                           :
    :
    Janice Hammond                           :
    ORDER
    AND NOW, this 29th day of May, 2024, the judgment of the Court of
    Common Pleas of Philadelphia County (trial court), entered December 11, 2023, is
    VACATED. This matter is REMANDED, and the trial court is DIRECTED to
    recalculate appropriate fines and costs after reconsidering aggravating and
    mitigating factors supported by the evidence.
    Jurisdiction relinquished.
    LORI A. DUMAS, Judge