In re: Demolition of Property in Dunkard Twp. ~ Appeal of: Keuning, h/w

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Demolition of Property in :
Dunkard Township :
: No. 802 C.D. 2023
Leroy M. Keuning :
Stacy L. Keuning : Submitted: October 8, 2024
315 Dilliner Hill Road :
Dilliner, PA 15327 :
Parcel #06-06-214-B :
:
Appeal of: Leroy M. Keuning and :
Stacy L. Keuning :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE DUMAS FILED: November 8. 2024
Leroy M. Keuning and Stacy L. Keuning (Appellants) appeal from the
order entered by the Court of Common Pleas of Greene County (trial court), which
affirmed the decision of the Dunkard Township (Township) Board of Supervisors
(Board). Appellants contend that the trial court erred by holding that they received
proper notice of the demolition of their property and sufficient evidence existed
justifying the demolition. We affirm.
I. BACKGROUND1
Unless otherwise stated, we present the facts based on the Board’s
findings of fact. Since 2016, the Township has cited Appellants for violating various
We state the facts in the light most favorable to the Township, as the prevailing party. See
1
Lawrenceville Stakeholders v. City of Pittsburgh Zoning Bd. of Adjustment, 247 A.3d 465, 473 (Pa.
Cmwlth. 2021).
zoning ordinances. Notes of Testimony (N.T.) Hr’g, 7/14/22, at 32. In December
2021, the Township notified Appellants of a roof issue that needed to be fixed by
June of 2022. Id. at 36. In late June, the Township’s engineer inspected the property.
Because the roof was not fixed, the Township posted a public notice on Appellants’
property deeming the property “dangerous.” Board’s Findings of Fact &
Conclusions of Law (Bd. Op.) (undated) at 2, 4 (unpaginated); N.T. Hr’g at 7. In
early July 2022, the Township’s engineer notified Appellants regarding various
violations. Bd. Op. at 1. The Board scheduled a public hearing, which was
advertised in the local paper. Id. Appellants attended and testified at the hearing.
Id.
At the hearing, the Township’s building code official testified that she
visually inspected Appellants’ property, which was a manufactured home. Id. at 2-
3. In her view, the property violated several provisions of the Township’s zoning
ordinance and, thus, was a “hazardous structure.” Id. at 2. The Township’s engineer
similarly testified that the roof was so “deteriorated,” including holes, that it posed
“a threat to the safety and the health of” Appellants. Id. at 3. He also testified that
the cost of repairs would exceed the value of the home and, regardless, the structure
could not support a new roof. Id.; see also N.T. Hr’g at 19 (stating that the “structural
member” is “beginning to deform, deflect,” and “left unchecked, [the] entire roof
will completely collapse”).
The Township’s code enforcement officer also testified. Bd. Op. at 3-
4. The officer stated that “ingress/egress may be limited” because of the poor
condition of the “deck/porch.” Id. at 4. He agreed with the Township’s engineer
that the structure “is of such a condition that it is a potential concern regarding the
health and safety of” Appellants. Id. Based upon his experience, his review of the
2
engineer’s report, and two inspections of Appellants’ property, Appellants’ home “is
unsafe to be occupied.” Id.; see also N.T. Hr’g at 38-40 (testifying that “under the
best possible conditions, the structure is unsafe”), 53.
The Board reviewed photographs of Appellants’ property, which in its
view, substantiated the Township witnesses’ testimony. Bd. Op. at 4. “There are
many issues causing the structure on the property to be unfit for human habitation,
such as the collapsing of [the] structural roof and the supporting walls.” Id.
Appellants disagreed, explaining that the “roof is currently leaking ‘a little bit’ in the
living room.” Id.; N.T. Hr’g at 91.
The Board concluded that it properly noticed Appellants under the
ordinance. Bd. Op. at 5. According to the Board, the ordinance requires that prior
to demolishing a home, the Township must hold a public hearing to resolve whether
the home was dangerous and the viability of any repairs. Id. The Board held that
the Township has the authority to demolish Appellants’ home. Id. at 7. The record
does not reflect that Appellants challenged the lack of notice under 26 Pa.C.S. § 305.
Appellants appealed the Board’s decision to the trial court, raising
several issues.2 In relevant part, Appellants asserted that the evidence did not
support the Township’s decision to demolish the property. Appeal, 9/15/22. They
also raised a general allegation that “they weren’t given proper notice and due
process was not followed.” Id.
The trial court took no evidence and affirmed the Board. Trial Ct.
Order, 6/28/23. In its order, the trial court held there was sufficient evidence that
supported the Board’s decision to demolish Appellants’ home. Id. at 2. The court
also agreed that the Township gave proper notice to Appellants. Id. Appellants
timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
2
The record does not indicate when the Board filed its decision.
3
II. ISSUES
On appeal, Appellants raise two issues, which we have reordered to
facilitate disposition. First, the Township was required to provide notice under 26
Pa.C.S. § 305. Appellants’ Br. at 5. Second, the trial court abused its discretion by
finding that the evidence supported the Board’s decision to demolish the structure.
Id.
III. DISCUSSION3
In support of their first issue, Appellants concisely argue, in two short
paragraphs, that under 26 Pa.C.S. § 305, “the Township was required to file a
declaration of taking.” Id. at 18. According to Appellants, Section 305 also required
that service must include publication in the local legal journal. Id. Appellants rely
on the Township’s testimony at the hearing that it only published the notice in the
local newspaper. Id.
The Township disagrees, reasoning that The Second Class Township
Code, Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65101-68701, authorized
it to enact an ordinance requiring “Appellants to remove any nuisance or dangerous
structure.” Twp.’s Br. at 10. The Township reasons that it enacted an appropriate
ordinance and complied with the procedure set forth in that ordinance to demolish
Appellants’ home. Id. The ordinance, per the Township, does not require notice in
the local legal journal. Id. at 11. The Township rejects Appellants’ reliance on 26
Pa.C.S. § 305 because the Township did not use a declaration of taking. Id. at 10. In
any event, the Township points out that Appellants testified at the hearing. Id. at 11.
3
When the trial court takes no additional evidence, we review the agency’s decision to
determine whether constitutional rights were violated, whether an error of law was committed, or
whether the Board’s findings of fact are supported by substantial evidence. 2 Pa.C.S. § 754(b).
We view the record in the light most favorable to the prevailing party. See Lawrenceville
Stakeholders, 247 A.3d at 473.
4
Neither party discussed caselaw.
It is well settled that the “purpose of notice of condemnation and
demolition orders is to provide the property owner with the opportunity for a hearing
in which to litigate the question of whether the property is actually a danger to public
safety, and to provide the property owner with a reasonable time in which to make
repairs in order to eliminate the dangerous condition.” City of Pittsburgh v. Pivirotto,
502 A.2d 747, 750 (Pa. Cmwlth. 1985) (footnote omitted).
Initially, Appellants did not raise and preserve their notice issue under
26 Pa.C.S. § 305 before the Board or the trial court. See Pa.R.A.P. 302; Station
Square Gaming L.P. v. Pa. Gaming Control Bd., 927 A.2d 232, 240 (Pa. 2007).
Regardless, the Eminent Domain Code applies only to condemnations for a public
purpose, and the Township was not condemning Appellants’ land for a public
purpose. See 26 Pa.C.S. § 102. Further, the notice requirement of 26 Pa.C.S. § 305
applies only when the condemnor files a declaration of taking. Id. § 305(a). The
Township did not file any such declaration. See id. Finally, the purpose of notice
prior to demolition was to ensure Appellants had the opportunity to participate in the
hearing to decide whether their property should be demolished. See Pivirotto, 502
A.2d at 750. Appellants did so here. See id.; see generally N.T. Hr’g.
In support of their second issue, Appellants contend that the record does
not establish that their property was structurally unsafe. Appellants’ Br. at 15. In
support, they reason that none of the Township’s witnesses actually entered their
home “to determine if it was structurally unsound and a danger to the public” or
Appellants. Id. at 15-16. In Appellants’ view, the Board should have believed
Appellants’ testimony “that the structure was sound and that they had no fear that it
would collapse.” Id. at 16.
5
Generally, we review the agency’s demolition order to resolve whether
its findings are supported by substantial evidence. See City of Phila. v. A Kensington
Joint, LLC, 301 A.3d 988, 1000 (Pa. Cmwlth. 2023) (Kensington). “In performing a
substantial evidence analysis, the evidence must be viewed in a light most favorable
to the party that prevailed below, and it is immaterial if evidence in the record could
have supported a different outcome.” Id. at 1000 n.12.
Instantly, the Township’s witnesses testified Appellants’ home was
structurally unsound and unfit for habitation. See, e.g., N.T. Hr’g at 20, 40. We
agree with the trial court and the Township that the Board’s findings are supported
by substantial evidence. The fact that Appellants disagreed with their testimony does
not mean there was no substantial evidence. See Kensington, 301 A.3d at 1000 n.12.4
Finally, we reiterate that the Township gave Appellants six months to repair the roof
and they did not.
IV. CONCLUSION
For these reasons, we affirm the trial court. Appellants did not preserve
their notice issue and substantial record evidence exists that the structure is unsafe.
LORI A. DUMAS, Judge
4
Appellants also argued that the Board should not have considered various exhibits that
were entered into evidence. Appellants’ Br. at 16-17. Because Appellants failed to object, they
waived their argument. To the extent Appellants contend that the Township’s witnesses did not
inspect the interior of their home, Appellants testified they would never have let the witnesses
inside. See N.T. Hr’g at 76.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: Demolition of Property in :
Dunkard Township :
: No. 802 C.D. 2023
Leroy M. Keuning :
Stacy L. Keuning :
315 Dilliner Hill Road :
Dilliner, PA 15327 :
Parcel #06-06-214-B :
:
Appeal of: Leroy M. Keuning and :
Stacy L. Keuning :
ORDER
AND NOW, this 8th day of November, 2024, we AFFIRM the order
entered by the Court of Common Pleas of Greene County on June 28, 2023, that
denied the appeal of Leroy M. Keuning and Stacy L. Keuning.
LORI A. DUMAS, Judge