Opinion
No. 2363 C.D. 2011
10-15-2012
Commonwealth of Pennsylvania v. Ronald Collins, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Ronald Collins appeals from the order of the Court of Common Pleas of Washington County that imposed a fine in the amount of $7500 for his violation of the Property Maintenance Code (Ordinance) of the Borough of Donora (Borough). Collins argues that the amount of the fine imposed by the trial court exceeded the maximum amount that could be imposed for a conviction of a summary offense. We reject his argument and affirm the trial court's order.
The Borough's Ordinance No. 1303 amended Ordinances Nos. 1244 and 1296, which adopted the BOCA Code published by the Building Officials and Code Administrators International, Inc. Section 3 of Ordinance No. 1303 adopted subsequent additions and revisions to, inter alia, the BOCA Property Maintenance Code. Reproduced Record at 39.
By order dated July 25, 2012, this Court precluded the Commonwealth of Pennsylvania from filing a brief for its failure to comply with the previous order directing it to do so.
Collins owns a vacant residential property located at 209 Third Street, Monongahela, Pennsylvania. In March 2011, the Borough's code enforcement officer, Timothy Durka, inspected Collins's property and found broken windows, slates hanging off the roof and the front porch with holes and a collapsed foundation. On March 25, 2011, a citation was issued to Collins for violating the Ordinance which requires property owners to keep their properties in a safe, secure and sanitary condition. When Collins failed to repair the property, a second citation was issued on May 18, 2011. After he was convicted of the charges before the magisterial district judge, Collins filed a summary appeal with the trial court.
The trial court continued an initially scheduled de novo hearing twice to give Collins time to make necessary repairs to bring the property into compliance with the Ordinance. At a hearing held on November 17, 2011, the Commonwealth presented photographs showing the condition of the property and Durka's testimony that after the issuance of the citations, Collins had only boarded up the windows and placed some screening materials on the porch, and that the porch's foundation was still in a state of collapse. Durka was concerned "with someone falling in the hole [on the porch] and the structural stability holding the porch up." Notes of Testimony at 15; Reproduced Record (R.R.) at 22. The trial court found Collins not guilty of the charge on the March 25 citation based on the evidence that he made some efforts to correct the condition of the property, but it found him guilty of the charge on the May 18 citation. The court found him in violation of the Ordinance for 185 days from the issuance of the May 18 citation to the November 17 hearing, but it reduced the days of his violations to 150 days and imposed a fine of $7500 ($50 a day for 150 days). The court then suspended the sentence for 90 days to give him time to bring the porch into compliance with the Ordinance. His appeal to this Court followed.
On appeal, Collins challenges the amount of the fine imposed by the trial court. He argues that the maximum amount of a fine for a violation of the Ordinance is $300 under Section 1101(7) of the Crimes Code, as amended, 18 Pa. C.S. § 1101(7), which provides that "[a] person who has been convicted of an offense may be sentenced to pay a fine not exceeding ... $300, when the conviction is of a summary offense for which no higher fine is established." He also relies on $300 listed in the May 18 citation as a fine. He maintains that he received only one fair notice of violation in the May 18 citation and that he, however, "was sentenced as though he had received one hundred and fifty (150) total citations for one hundred and fifty (150) offense dates." Collins's Brief at 7.
Sentencing is within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. Borough of Kennett Square v. Lal, 643 A.2d 1172 (Pa. Cmwlth. 1994).
The essential elements of a summary offense must be set forth in the citation to give the defendant fair notice of the nature of the unlawful act for which he or she is charged. Commonwealth v. Borriello, 696 A.2d 1215 (Pa. Cmwlth. 1997), aff'd, 555 Pa. 219, 723 A.2d 1021 (1999). The May 18 citation gave Collins fair notice of his violation of the Ordinance for which he was charged. It stated: "Mr. Collins still made no effort to replace the busted window, install roof slate[,] install gutters and downspouts[,] construct new porch foundation[,] replace all rotted porch wood. Mr. Collins was [cited] on 3/25/11 on this Property." R.R. at 7.
Section 1 of Ordinance No. 1296 provides in relevant part:
Any person ... who shall violate any provision of this code [the Property Maintenance Code] shall, upon conviction thereof, be subject to a fine of not less than $100.00 nor more than $300.00 or imprisonment for a term not to exceed ten days, or both, at the discretion of the court. Each day that a violation continues after due
notice has been served ... shall be deemed a separate offense.R.R. at 37 (emphasis added). The trial court found that Collins's violation continued for 185 days until the November 17, 2011 hearing. The court's finding is supported by Durka's testimony and the photographs of the property presented by the Commonwealth. The trial court's imposition of the fine for 150 separate violations is authorized by Section 1 of Ordinance No. 1296, which treats each day of his continued violation as a separate violation once the service of due notice of his violation was made, without a need to issue separate and repetitive citations. See also City of Erie v. Freitus, 681 A.2d 840 (Pa. Cmwlth. 1996) (affirming the imposition of a fine in the amount of $14,000 ($100 a day for 140 days) for the continuous violation of the zoning ordinance, pursuant to Section 617.2(a) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Section 62 of the Act of December 21, 1988, P.L, 1329, 53 P.S. § 10617.2(a), providing that "[e]ach day that a violation continues shall constitute a separate violation").
In Borriello, relied on by Collins, 26 separate citations were issued for violations of various sections of the BOCA Code. The Court concluded that the citations did not provide a sufficient nexus between the charges in the citations and the provisions of the BOCA Code. Unlike in Borriello, Collins was provided due notice of violation in the May 18 citation. --------
Accordingly, the trial court's order is affirmed.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 15th day of October, 2012, the order of the Court of Common Pleas of Washington County in the above-captioned matter is AFFIRMED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge