Opinion
No. 459 C.D. 2014
01-08-2015
Thomas F. Altman, Appellant v. Borough of Wilmerding David J. Miller, Wilmerding Fire Marshall and Building Code Louise Walker, Wilmerding Code Enforcement Official
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Thomas F. Altman (Altman) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that held his civil suit seeking to enjoin enforcement of two ordinances of Wilmerding Borough (Borough) was barred by res judicata based on his appeal of convictions under the ordinances. Altman argues his defense against enforcement, pursued in the criminal division of the trial court (criminal court), differs from his challenge to the constitutionality of the ordinances raised here. The trial court thus erred in holding his summary appeals in the criminal court precluded his civil suit. On the merits, Altman contends the trial court erred in not concluding the ordinances, as applied, violated his constitutional rights. Upon review, we affirm the trial court on other grounds.
Although Altman challenged two ordinances before the trial court, his argument as to the application of the ordinances pertains to only one of them, as explained more fully below.
I. Background
Altman owns property within the Borough at 452 Airbrake Avenue (Property). There is no dispute that there were multiple changes in occupancy under his ownership or that the Property is used as a residence. When the prior owners defaulted on their mortgage, Altman re-acquired ownership and permitted the occupants to remain on the Property for several months. Subsequently, Altman entered into agreements with later occupants of the Property. Although Altman represented the occupants were prospective purchasers, the Borough considered these occupants tenants.
The Borough cited Altman for violations of two ordinances regulating the Property: (1) Owner Occupancy Ordinance No. 1007 (Occupancy Ordinance); and, (2) Rental Property Registration Ordinance No. 979 (Registration Ordinance) (collectively, the Ordinances). The Occupancy Ordinance requires a new occupancy permit to be obtained, after inspection, each time a residence changes owners or occupants. The Registration Ordinance "governs rental properties," requiring annual registration. Hr'g Tr., Notes of Testimony (N.T.), 7/26/13, at 12 (civil). Altman did not obtain an occupancy permit or register the Property. The magisterial district judge found Altman guilty of violating both Ordinances.
Altman filed two summary appeals to the criminal court challenging his convictions. Contemporaneously, in the civil division of the trial court, Altman filed a complaint against the Borough and its enforcement agents, and a motion for preliminary injunction, seeking equitable relief from future enforcement of the Ordinances against him (Civil Action).
The criminal court held a de novo hearing where Altman contested the Borough's prosecution of the ordinance violations (Criminal Case). The Honorable Robert Gallo presided. Significantly, during the hearing, Altman's counsel advised Senior Judge Gallo about the Civil Action then pending before the Honorable Timothy Patrick O'Reilly in the civil division. Altman's counsel sought to postpone the hearing until after Senior Judge O'Reilly had an opportunity to determine the validity of the Ordinances in the Civil Action. Altman argued that his challenge to the Ordinances should be decided in the Civil Action, separate from the Criminal Case. Also relevant here, Altman declined to contest the validity of the Ordinances at the hearing before the criminal court. Rather, Altman's counsel emphasized that the only issue before the criminal court was whether the Borough properly used private criminal complaints to institute the summary proceedings.
This Court reviewed the trial transcript from the hearing before the criminal court, which was submitted to Senior Judge O'Reilly in the Civil Case. See Hr'g Tr., Notes of Testimony (N.T.), 7/26/13, at 6 (civil) ("direct the [Borough] to provide a complete transcript of whatever proceeding that may have occurred in front of Senior Judge Gallo as well as the documentation, including the citations that had been issued."). However, as the transcript was not submitted as part of the certified record in this case, we reviewed the transcript submitted as part of the certified record in Commonwealth v. Altman (Pa. Cmwlth., No. 1429 C.D. 2013, filed July 1, 2014) (unreported). For clarity, references to the record are designated as either "civil" or "criminal."
After denying the request for postponement, the criminal court dismissed both appeals and entered judgment against Altman for fines and costs. Altman appealed to this Court, which affirmed the criminal court in a per curiam opinion. See Commonwealth v. Altman (Altman I) (Pa. Cmwlth., No. 1429 C.D. 2013, filed July 1, 2014) (unreported).
Three days after a hearing in the criminal court, the trial court, Senior Judge O'Reilly presiding, began a two-day hearing on the Civil Action. In the Civil Action, Altman sought equitable relief in the form of mandamus, and requested a declaration as to the constitutionality of the Ordinances, as well as an injunction against prospective enforcement. At that time, the Borough argued Altman's defense in the Criminal Case precluded the Civil Action because they constituted the same cause of action and they requested identical relief.
Named as parties in the Civil Action, both Louise Walker, the Borough Code Officer/Secretary (Secretary), and David Miller, Building Code Official and Fire Marshall (Fire Marshall), testified. The Secretary and the Fire Marshall were also witnesses in the Criminal Case.
The Secretary testified regarding the Ordinances and the notices she sent to Altman concerning their requirements. She testified that a property owner is required to obtain an occupancy permit prior to selling a property. To ensure a residence is safe for occupancy, the Borough conducts an inspection of the property. Therefore, when Altman proceeded to sell the Property to a prospective purchaser, Tracy Dillard (Dillard), the Secretary notified him about his responsibilities for obtaining an occupancy permit. The Secretary explained Dillard paid the fee for the occupancy permit. The permit application designated Altman as the seller and Dillard as the buyer.
The second occupant, Stephanie Ripley, (Ripley) did not apply for an occupancy permit. The Secretary learned of Ripley's occupancy when Altman contacted the Borough about his desire to evict her from the Property for not making agreed upon monthly payments. Ripley provided a copy of her lease agreement with Altman to the Borough. The agreement required Ripley to make monthly payments while she resided at the Property.
In the Criminal Case, Ripley testified she paid monthly rent to Altman in the amount of $600.00 from January 2012 through October 2012.
Based on her conversations and correspondence with Altman and different occupants of the Property, the Secretary concluded the Property was a rental property and thus subject to the Ordinances.
The Fire Marshall testified concerning his enforcement of the Ordinances and inspection of the Property. The Fire Marshall explained he received consent to enter the Property from Dillard, after she paid the occupancy permit fee. The Fire Marshall did not notify Altman about the search because Dillard paid the fee and sought the permit, and granted him access to the Property in order to obtain the permit. Upon inspection, the Fire Marshall noted a number of safety deficiencies. He prepared an occupancy inspection report that outlined the deficiencies. The letter advising Altman of the deficiencies stated that the Borough could be contacted for re-inspection once the deficiencies were remedied. The Borough did not issue an occupancy permit based on the deficiencies.
After learning about these deficiencies, Dillard decided against purchasing the Property. Altman refused to correct and repair the deficiencies.
Altman testified regarding his ownership interest in the Property, and his attempts to sell it to two different prospective purchasers, Dillard and Ripley. Initially, Altman obtained the Property via quitclaim deed in 2010 after the prior residents, the Mihaliks, defaulted on the mortgage. The Mihaliks continued to reside in the Property as late as May 2011. He confirmed the Property was used as a private residence between 2008 and 2011. The Mihaliks had an occupancy permit. Altman testified he never resided in the Property and purchased it in order to sell it.
Altman admitted he was aware of the occupancy permit requirement. However, he believed it was the buyer's obligation to obtain the permit. He claimed the Borough discouraged prospective purchasers from buying the Property by disclosing numerous safety deficiencies revealed in the Fire Marshall's inspection.
Throughout his testimony, Altman consistently attested the Registration Ordinance did not apply because he did not rent the Property. Rather, he has "lease-to-own" and option to purchase agreements with prospective purchasers. However, he admitted he filed an eviction action with the magistrate in order to de-possess Ripley of the Property.
Ultimately, the trial court reasoned the cause of action in the Civil Action was identical to the matter before the criminal court. The trial court found the cases involved identical parties, and capacity of the parties. Accordingly, the trial court held Altman's civil case was barred by res judicata. The trial court also noted "[c]ollateral estoppel, [sic] does not apply in this case." Tr. Ct., Slip Op., 2/18/14, at 3.
In addition, although finding the case barred, the trial court considered the merits of Altman's constitutional claims. It specifically stated, "[i]n the presentation of evidence at the hearings on this matter, [Altman] failed to prove any constitutional violation in the application of [the Occupancy Ordinance] and [the Registration Ordinance] against him." Tr. Ct., Slip Op., 2/18/14, at 3. The trial court further noted that Altman did not submit any evidence to support his allegation that the Occupancy Ordinance prohibits him from selling his property without an occupancy permit, or that the occupancy permit fee constitutes an invalid tax. Accordingly, the trial court dismissed all of Altman's claims "without prejudice." Id. at 4.
Altman appealed the trial court's order to this Court.
The grant or denial of a permanent injunction is a question of law. Buffalo Twp. v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002). Similarly, our review of the application of res judicata is plenary. Pa. Bd. of Probation & Parole v. Pa. Human Relations Comm'n, 66 A.3d 390 (Pa. Cmwlth. 2013). We review a denial of declaratory relief to determine whether a trial court abused its discretion. Falls Twp. v. McManamon, 537 A.2d 946 (Pa. Cmwlth. 1988).
II. Discussion
Altman asserts the trial court erred in dismissing his equitable claims. First, he argues the trial court erred in holding the Civil Action is precluded by the res judicata effect of the Criminal Case. Second, Altman contends the Ordinances are unconstitutional as applied on several different grounds. As a result, the trial court erred in not holding the Ordinances violated the U.S. and Pennsylvania Constitutions. We address each argument in turn.
In his post-hearing brief, Altman concedes the Ordinances in question are "not unconstitutional on their face." Certified Record (C.R.), Item No. 3 at 2 (civil).
A. Preclusion of Civil Action
1. Res Judicata
The doctrine of res judicata provides that where a final judgment on the merits exists, a future lawsuit on the same cause of action is precluded. J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936 (Pa. Cmwlth. 2002). Technical res judicata requires the coalescence of four factors: (1) identity of the thing sued upon or for; (2) identity of the causes of action; (3) identity of the persons or parties to the action; and, (4) identity of the quality or capacity of the parties suing or being sued. Id. All four factors must be present to preclude another action.
In determining whether there is identity of the causes of action, we consider "the similarity in the acts complained of and the demand for recovery." Swift v. Radnor Twp., 983 A.2d 227, 232 (Pa. Cmwlth. 2009). Further, res judicata applies to claims that were actually litigated as well as those matters that should have been litigated. Unified Sportsmen of Pa. v. Pa. Game Comm'n, 950 A.2d 1120 (Pa. Cmwlth. 2008).
The trial court determined that res judicata applied here because all four factors were present. See Tr. Ct., Slip Op., 2/18/14, at 2-3. Although the parties to the Criminal Case and the Civil Action are the same, and both cases relate to the Ordinances, we are constrained to disagree.
Altman's Civil Action does not seek the same relief or state the same causes of action asserted in his defense in the Criminal Case. In his five-count complaint, Altman requested declaratory and injunctive relief. See Certified Record (C.R.), Item No. 1 (civil). Four of the counts set forth different grounds for declaring the Ordinances unconstitutional. In Count I, Altman claims the Ordinances, as applied to him, violate his constitutional right to due process under the Fourteenth Amendment to the United States Constitution, U.S. CONST. amend. XIV. In Count II, Altman claims the Ordinances violate the contract clauses of the U.S. and Pennsylvania Constitutions because they impair his right to contract for the sale of the Property. In Count III, Altman claims the Ordinances constitute a veiled tax that is beyond the Borough's authority to impose. In Count IV, he argues the inspection of his Property constituted an improper search without a warrant, in violation of the Fourth Amendment to the United States Constitution. U.S. CONST. amend. IV.
From our careful review of the trial transcripts, Altman did not challenge the constitutionality of the Ordinances in the Criminal Case. In defending the summary appeals, Altman only noted that he intended to challenge the constitutionality of the Ordinances though his then pending Civil Action. Hr'g Tr., N.T., 7/23/13, at 4-7 (criminal). Thus, the causes of action asserted in Counts I through IV of the complaint, which challenge constitutionality, are not precluded.
Because the trial court ruled in the Borough's favor based on res judicata, the proceedings in the Criminal Case are relevant to discerning the identity of the causes of action. Lycoming Cnty. v. Pa. Labor Relations Bd., 943 A.2d 333 (Pa. Cmwlth. 2007). Moreover, Senior Judge O'Reilly accepted the trial transcript in the Criminal Case as evidence he considered in the Civil Action. See Hr'g Tr., N.T., 8/2/13, at 144 (civil).
Relevantly, in the Criminal Case, when it was to its advantage, the Borough admitted that the causes of action were not the same. The Borough argued that the criminal court needed to rule on the ordinance violations because "[i]t's a separate matter from the lawsuit filed in front of Judge O'Reilly. They're independent causes of action." Id. at 50 (criminal).
Additionally, the relief Altman sought in defending the Criminal Case was much narrower than the prospective relief he sought in the Civil Action. In his prayer for relief, Altman asked the trial court to declare the Ordinances unconstitutional as applied, and sought to enjoin the Borough from instituting future enforcement proceedings. The relief in the Criminal Case was limited to avoidance of fines for two ordinance violations on specific dates, through a challenge to the Borough's chosen method of initiating prosecution. Thus, the relief sought is not identical. Accordingly, the trial court erred in holding the Civil Action was barred by res judicata.
Notably, when the trial court determined the Criminal Case had res judicata effect on Altman's Civil Action, it did not have the benefit of this Court's per curiam opinion issued on July 1, 2014. In that opinion, this Court recognized that during the hearing before the criminal court, "counsel for Altman acknowledged numerous times that the only issue before the [criminal] court was the issue of whether the Borough properly used private criminal complaints to institute the summary proceedings." Altman I, Slip Op., at 2. This Court concluded that Altman's counsel did not argue the constitutionality of the Ordinances before the criminal court. Rather, Altman's counsel "very clearly attributed these [as applied constitutional] issues to the pending [C]ivil [A]ction." Id. at n.3.
That Altman could have raised the invalidity or unconstitutional application of the Ordinances in the Criminal Case also does not preclude the Civil Action. Altman was not required to present a defense challenging the constitutionality of the Ordinances within the confines of the summary appeal process. Altman elected to challenge the Ordinances through civil means, in an effort to obtain permanent prospective relief from future enforcement actions. Altman's election of a civil remedy to obtain civil relief from future prosecution is not precluded by the Borough's prosecution of specific violations because the relief differs. Cf. Borough of Kennett Square v. Lal, 665 A.2d 15 (Pa. Cmwlth. 1995) (borough may seek injunctive relief as well as file summary offenses as alternative ordinance enforcement mechanisms as they seek different remedies).
2. Collateral estoppel
Collateral estoppel prevents relitigation of issues in a subsequent case where: (1) the issue decided in the prior case is identical to that of the subsequent case; (2) the prior case resulted in a final judgment on the merits; (3) the party against whom the doctrine is asserted was a party in the prior case; and, (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action. Rue v. K-Mart Corp., 713 A.2d 82 (Pa. 1998); Benginia v. Workers' Comp. Appeal Bd. (City of Scranton), 805 A.2d 1272 (Pa. Cmwlth. 2002).
Senior Judge Gallo's decision in the Criminal Case did not decide the merits of the equitable claims Altman asserted in his Civil Action. The Criminal Case determined that Altman committed the cited violations of the Ordinances on specific dates. In so doing, the criminal court rejected Altman's defense that a citation is the only proper means of commencing a summary proceeding for ordinance violations. The Criminal Case also addressed Altman's claim that the criminal court abused its discretion in refusing to grant a continuance until the pending Civil Action resolved.
In addition, there was no final judgment as to the Ordinances' validity. To the contrary, on appeal from the Criminal Case, this Court explained Altman reserved his arguments regarding constitutionality to the Civil Action, so they were not before the criminal court. Altman I, Slip Op., at 2 n.3. Thus, the trial court did not err in holding collateral estoppel did not apply.
3. Lis pendens
As an alternate ground for affirmance, the Borough argues Altman's claims are precluded by the doctrine commonly known as lis pendens. Lis pendens, meaning pendency of a prior action, applies when, in the previously filed case, "the parties are the same, the rights are the same, and the requested relief is the same." Feldman v. Lafayette Green Condo. Assoc., 806 A.2d 497, 502 (Pa. Cmwlth. 2002) (emphasis added). The doctrine of lis pendens protects defendants from the harassment of having to defend several suits on the same cause of action at the same time. Swift; Hillgartner v. Port Auth. of Allegheny Cnty., 936 A.2d 131 (Pa. Cmwlth. 2007).
An appellate court may affirm a trial court where the result is correct, even when the reason given is erroneous, provided the correct basis for the decision is clear on the record. Rhoads v. Lancaster Parking Auth., 520 A.2d 122 (Pa. Cmwlth. 1987).
The principles of lis pendens are incompatible with the facts presented here. In this case, the Borough was required to defend only one civil suit. The Borough was not the defendant in the Criminal Case; rather, it was the prosecutor. Moreover, as discussed above the relief sought in each action is different. Under these circumstances, we reject the Borough's invitation to dismiss this case on the alternate theory of lis pendens.
B. Merits
1. Prerequisites for Equitable Relief
Altman bears the burden of proving the equitable claims he asserted. See, e.g., Watts v. Manheim Twp. Sch. Dist., 84 A.3d 378 (Pa. Cmwlth. 2014) (plaintiff bears burden of proving necessity of injunctive relief); Stilp v. Commonwealth, 910 A.2d 775 (Pa. Cmwlth. 2006), aff'd, 974 A.2d 491 (Pa. 2009) (plaintiff seeking declaration bears burden of proof). Here, Altman sought injunctive and declaratory relief.
Although Altman also requested mandamus in his prayer for relief, he did not preserve any argument related to his request for mandamus relief on appeal to this Court.
With regard to a permanent injunction, as the plaintiff, Altman "must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested." Watts, 84 A.3d at 390 (emphasis added) (citing Buffalo Twp. v. Jones, 813 A.2d 659, 663-64 (Pa. 2002)). Specifically, Altman seeks to permanently enjoin enforcement of the Ordinances against him because they are unconstitutional as applied.
With regard to declaratory judgment, Altman must establish entitlement to the declaration of law he seeks. Here, he seeks a declaration that the Ordinances are unconstitutional as applied to him. Specifically, Altman requests relief "declaring the constitutionality [sic] of the [Ordinances]." C.R., Item No. 1 (civil complaint) at 17. He also seeks a declaration of "the obligations of the [Borough] in the collection of fees and expenses for maintenance of its occupancy and rental permit programs to insure that such collection activity is not a tax imposed against local property owners." Id. Based on Altman's briefs on appeal and below, we construe this request as seeking a declaration that the Ordinances are void as an improper taxation device.
Altman requests declaratory relief without specifying the precise declaration he seeks. Also, in his brief, Altman did not set forth the prerequisites for declaratory relief, (an actual controversy, for which the declaration sought will aid the resolution, and for which there is no other remedy). Cnty. Comm'rs Ass'n of Pa. v. Dinges, 935 A.2d 926 (Pa. Cmwlth. 2007).
Both of these claims share in common the element that Altman establish his right to the relief requested. For an injunction, he must show a clear right to relief, whereas for a declaratory judgment, he must show an actual controversy from an invasion of his legal rights. Here, his substantive claims are predicated upon alleged violations of the U.S. and Pennsylvania Constitutions. Stated differently, unless Altman establishes the constitutional violations he alleges, he cannot sustain a claim for equitable relief from the alleged violations. Therefore, the trial court's determination that Altman failed to substantiate any constitutional violation is dispositive of his claims for equitable relief.
2. Constitutionality of Ordinances
As an initial matter, we note, Altman did not challenge the legitimacy or validity of the purpose of the Ordinances. Altman also did not assert discriminatory enforcement. Moreover, Altman's constitutional challenge pertains to the Occupancy Ordinance only. See Appellant's Br. at 17-20. Altman does not explain how the enforcement or application of the Registration Ordinance violated any constitutional rights, and it is unclear from his brief. Consequently, only the alleged unconstitutionality of the Occupancy Ordinance may be considered. Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n.11 (Pa. Cmwlth. 2002) (failure to develop an issue may constitute waiver; "Mere issue spotting without analysis or legal citation to support an assertion precludes our appellate review.").
This Court previously recognized that an ordinance providing for occupancy licenses and inspections is a reasonable exercise of a borough's police powers. Berwick Area Landlord Ass'n v. Borough of Berwick, 48 A.3d 524 (Pa. Cmwlth. 2012) (rejecting substantive due process challenge to borough's occupancy ordinance). Therefore, when the constitutionality of such an ordinance is challenged, it is reviewed under a rational basis standard. Id.
Before reviewing each argument raised, we acknowledge Altman's claims consist largely of vague assertions without any analysis, or legal or evidentiary support for his positions. Altman's brief lacks an analysis of the Occupancy Ordinance and an explanation as to how it violates his constitutional rights. Cognizant of the limitations such deficiencies entail, to the extent possible, we consider the constitutional challenges that are sufficiently developed and for which Altman cited legal authority.
a. Improper Search
First, Altman asserts the Borough violated his constitutional rights because it unreasonably entered the Property and conducted an administrative inspection without a warrant. Altman contends that because the Occupancy Ordinance permitted the Fire Marshall to conduct an inspection of the Property without notice or consent to the owner of record (Altman), the ordinance violates his rights under the Fourth Amendment to the U.S. Constitution. In support, Altman cites two cases: See v. City of Seattle, 387 U.S. 541 (1967) and Commonwealth v. Tobin, 828 A.2d 415 (Pa. Cmwlth. 2003).
See involved a warrantless inspection of a locked warehouse after the property owner refused entry. In See, the appellant sought reversal of a conviction for refusing an inspection by a representative of the city fire department. Here, there was no refusal of an inspection. Dillard, who was authorized by Altman to be on the Property and ready it for her prospective purchase, authorized the Fire Marshall to enter and inspect the Property. Moreover, See did not hold that warrants for inspection are always necessary in recognition that "surprise [is a] crucial aspect of routine inspections." See, 387 U.S. at 545 n.6.
Tobin also involved a prosecution for refusing entry without a warrant. In Tobin, a residential landlord refused a code enforcement officer entry to his premises. We held the Fourth Amendment prohibits non-consensual searches without a warrant. Unlike the landlord in Tobin, however, Altman was not prosecuted for refusing an inspection so as to violate his Fourth Amendment right to be free from unreasonable warrantless searches. The Borough received permission to inspect the Property from the prospective occupant who had permission from Altman to enter and begin preparing the Property. Altman testified he never used the Property as his own residence.
Altman's lack of authority argument presumes the Borough was required to obtain an administrative warrant prior to entering the Property. Neither See nor Tobin set forth a bright-line requiring municipalities to obtain administrative warrants prior to inspecting property for safety purposes. Altman also did not identify any evidence indicating that an administrative warrant was necessary so as to invalidate any Borough inspection conducted without one. In light of evidence of consent to search by the person in possession of the property, we discern no merit to the improper search challenge.
b. Impairment of Contracts
Altman next asserts the Borough interfered with the sale of the Property. In that manner, he asserts the Occupancy Ordinance violated the contract clauses of the U.S. and Pennsylvania Constitutions, which prohibit "law[s] impairing the obligation of contracts." PA. CONST. art. I, §17; see U.S. CONST. art. I, §10, cl. 10. He characterizes the Occupancy Ordinance's inspection requirement and necessity to correct safety deficiencies as a means of prohibiting the sale of property. However, in so doing, Altman does not quote any passage of the ordinance that prohibits the sale or transfer of property.
Altman quotes one section of the Occupancy Ordinance related to temporary permits. It provides the Borough may issue temporary permits when a transfer in ownership is occurring but the property does not qualify for an occupancy permit. There is no indication that Altman or Dillard requested a temporary permit here, or that the provision is mandatory.
Essentially, Altman faults the Borough with the loss of sales because Ripley and Dillard declined to purchase the Property based on the deficiencies discovered. That prospective purchasers were no longer interested in purchasing the Property after learning of the deficiencies outlined in the inspection report does not render the Occupancy Ordinance unconstitutional. Altman cites no support for his position that the Borough's disclosure of deficiencies in the Property rises to the level of impairing contractual obligations.
Significantly, Altman does not set forth the basic elements of a contract clause claim. Pa. Workers' Comp. Judges Prof'l Ass'n v. Exec. Bd. of Com., 39 A.3d 486, 494 (Pa. Cmwlth. 2012) ("A court makes three threshold inquiries in evaluating a Contract Clause claim: (1) whether there is a contractual relationship; (2) whether a change in a law has impaired that contractual relationship; and (3) whether the impairment is substantial."). Without legal or evidentiary support for his argument, we reject Altman's claim that application of the Occupancy Ordinance, in listing deficiencies to be remedied before occupation, is a legislative power of a permanent character implicating the constitutional prohibition in the contract clause. Id. Rather, the Fire Marshall's inspection report is more akin to a local administrative act or decision that falls outside constitutional protection. Id.
Moreover, Altman fails to establish that any relevant contract was impaired by passage of the Occupancy Ordinance. It is axiomatic in the law of contract impairment that the contract in question must take effect before the change in the law takes place. DePaul v. Kauffman, 272 A.2d 500 (Pa. 1971) (leases formed after date of statute cannot be impaired by its passage). Altman did not prove that he came within the constitutional protection.
c. Improper Taxation
Altman further contends the fee required by the Occupancy Ordinance constitutes an improper taxation device. In support, he cites Trigona v. Lender, 926 A.2d 1226 (Pa. Cmwlth. 2007), and Commonwealth v. Hoffman, 938 A.2d 1157 (Pa. Cmwlth. 2007). The facts of those cases are inapposite to the facts presented here.
In Trigona, the complainant brought a declaratory judgment action, arguing the ordinance at issue was an invalid taxation device. There, the ordinance explicitly prohibited issuing a license for occupancy without payment of outstanding taxes. This Court reasoned the ordinance imposed an improper means of collecting taxes, which were not a municipal claim within the municipality's police powers.
Hoffman involved an appeal from an adjudication of guilt for ordinance violations. Hoffman applied for licenses for the properties, but did not receive them because of non-payment of sewage charges. The municipality thus withheld a license based on non-payment of fees, and then cited the owner for not having the license for which she applied. Hoffman challenged the constitutionality of the ordinance at a hearing on the violations. Following Trigona, this Court reasoned that a municipality lacks authority to collect municipal debt through an ordinance.
In contrast to Trigona and Hoffman, the Borough did not use the Occupancy Ordinance to force Altman to pay his unpaid taxes on the Property. Thus, the connection between the unpaid taxes and their alleged collection through the ordinance is not evident and requires some explanation lacking here.
Altman submitted no evidence regarding the alleged invalidity of the Occupancy Ordinance as an improper taxation measure. Because the Occupancy Ordinance does not state on its face that issuance of a permit is contingent on payment of taxes, Altman must establish, through evidence, that the inspection fee qualifies as a "tax." Tobin.
A license fee is charged "to defray the cost of a license ... ; however, this fee must be commensurate with the expense incurred by the [municipality] in connection with the issuance and supervision of the license or privilege." Talley v. Commonwealth, 553 A.2d 518, 519 (Pa. Cmwlth. 1989) (quoting Mastrangelo v. Buckley, 250 A.2d 447, 464 (Pa. 1969)). License fee legislation is struck down where "the amount of a 'license fee' is grossly disproportionate to the sum required to pay the cost of the due regulation of the business." Flynn v. Horst, 51 A.2d 54, 60 (Pa. 1947). Courts only interfere with legislative discretion in enacting license fee legislation where the regulations are arbitrary, oppressive, or unreasonable. Id.
As to the ultimate question of constitutionality, in Tobin this Court held that a fee provision in an ordinance requiring owners of real estate to submit to inspections, and to pay a fee for inspections was not an unconstitutional tax. Absent evidence that the fee was for revenue-raising purposes, rather than administrative enforcement costs, an inspection fee is permissible and within a municipality's authority to impose. Id.
d. Due Process
Altman also vaguely asserts the criminal prosecutions violate his constitutional due process rights because the Borough withheld the occupancy permit. As he does not provide sufficient detail explaining this argument, and it is not apparent to this Court, we do not consider it. Sponterelli; Campbell v. Civil Serv. Comm'n, 717 A.2d 574 (Pa. Cmwlth. 1998).
e. Violation of Pennsylvania Law
Lastly, Altman argues the Occupancy Ordinance violates Pennsylvania law. He asserts a municipality cannot refuse to issue an occupancy permit based on code violations "unless the substantial violation renders the property unfit for habitation." Section 3(d) of the Municipal Code and Ordinance Compliance Act (Act), 68 P.S. §1083(d). The Act pertains to "municipal codes relating to building, housing, property maintenance or fire ..." and requires purchasers to "bring the building...into compliance." Section 3(a) of the Act, 68 P.S. §1083(a). Based on these provisions, Altman argues that his failure to cure the defects set forth in the Borough's inspection report was not proper grounds for withholding an occupancy permit. He also asserts there is no evidence that the violations were so substantial as to render the Property unfit for habitation.
Act of December 20, 2000, P.L. 724.
This is not a constitutional claim, and it is not pled in Altman's complaint. Further, during a two-day hearing, Altman did not submit any evidence regarding the condition of the Property. In this appeal, he alludes to no such evidence. Instead, he claims the Borough bore the burden of proving the unfitness of the Property based on the substantiality of the violations.
As the party seeking equitable relief in the Civil Action, Altman bore the burden of proving a clear right to relief. Because Altman did not offer credible evidence about the habitability of his Property, he cannot prevail on this issue.
Additionally, we note, the invalidity of the Occupancy Ordinance on this basis is not fairly comprised within the Statement of Questions Involved. For this additional reason, we need not address it. See Pa. R.A.P. 2116(a) (providing "[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
III. Conclusion
In his Statement of Questions Involved, Altman claims the trial court erred in not accepting additional evidence regarding the indirect taxation issue. However, he neglected to brief the issue, merely referring to his request for an additional hearing. See Appellant's Br. at 11. Therefore, he waived this issue. See Pa. R.A.P. 2119; Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011). In addition, Altman did not provide any reason for his failure to submit evidence during the two-day hearing before Senior Judge O'Reilly. --------
Although his Civil Action was not precluded by res judicata, Altman did not demonstrate a clear right to equitable relief by showing any violation of the constitutional rights alleged. For the foregoing reasons, we affirm the trial court's dismissal of Altman's Civil Action without prejudice.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 8th day of January, 2015, the Order of the Court of Common Pleas of Allegheny County is AFFIRMED on other grounds.
/s/_________
ROBERT SIMPSON, Judge