Opinion
No. 280 C.D. 2013
10-17-2013
Commonwealth of Pennsylvania v. William H. Birk, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
William H. Birk appeals pro se from the order of the Court of Common Pleas of Northampton County dated August 31, 2012, finding him guilty of violating a local ordinance prohibiting nuisances arising from the accumulation of garbage, rubbish and unlicensed and/or uninspected motor vehicles. Although Birk raises numerous issues concerning his prosecution, the hearing, the penalties imposed and the validity of the ordinance, Birk's failure to timely appeal common pleas's order deprives this court of jurisdiction, mandating that his appeal be quashed.
Specifically, Birk was convicted of violating Lower Saucon Township Ordinance § 112-5A. Common pleas initially imposed a $1000 fine with costs and, one week later, by separate order, authorized the Township to, inter alia, enter the premises where Birk resided to remove the offending items.
According to the certified record, Lower Saucon Township (Township) has taken issue with the condition of Birk's yard before, bringing Birk before common pleas on several occasions in the past few years. Birk was apparently most recently cited for violating Township Ordinance § 112-5 (pertaining in part to prohibition of nuisances caused by accumulation of rubbish, garbage, and unlicensed or unregistered motor vehicles) in June 2012 and when he failed to clean up the property as directed, a hearing before common pleas occurred on August 31, 2012. Thereafter, an order dated August 31 was entered, finding Birk guilty of violating the ordinance as charged and imposing a fine and costs.
Birk appeared at the hearing pro se. The Township's zoning officer testified to the condition of the property, noting that photographs taken of the property depicted "the accumulation of all kinds of different rubbish or there is trash there, there is containers, there is pieces of furniture, miscellaneous stuff just placed all over the property." Notes of Testimony (N.T.) at 7 (Hearing of August 31, 2012). Birk testified, in turn, that he did not have any garbage in his yard. According to Birk, however, the yard contained household goods and items to be taken elsewhere, such as cardboard, scrap metal and furniture for auction. He stated that he had cleaned up the property and believed that he was compliant with the ordinance. The trial judge clearly credited the Township's evidence, noting from the photographs that the property was "terrible." N.T. at 11.
The Township solicitor offered a proposed order seeking, inter alia, authorization to enter the property in order to remove the items depicted in the photographs. The trial judge stated that he would delay signing the proffered order until he had an opportunity the following week to personally view the property, noting that if the property was cleanedup, he would modify the order. Based upon testimony that occurred at a subsequent hearing, it is clear that the judge did inspect the property as promised. Thereafter, an order apparently backdated to August 31 was signed imposing the monetary fine. The order is listed on the docket on August 31. As noted in footnote one, a subsequent order dated September 6, and amended September 7, was signed, authorizing entry onto the property for cleanup purposes.
While not before us, although the condition of the property is obviously quite unsightly, no testimony was offered to establish that the property presented a danger to health or environment, created noxious odors, a haven to vermin, unsanitary conditions or otherwise constituted a nuisanceinfact. See generally Borough of New Bloomfield v. Wagner, 35 A.3d 839 (Pa. Cmwlth. 2012); McClellan v. Commonwealth, 499 A.2d 1150 (Pa. Cmwlth. 1985).
Contrary to Rule of Criminal Procedure No. 720(D), on November 5, 2012, Birk filed a "post sentence motion for reconsideration" in which he averred, in pertinent part, that he was requesting "reconsideration of the illegal conviction and sentence of 31 August 2012 for the following reasons . . . ." See Post Sentence Motion, Certified Record (C.R.) Item No. 17. Pursuant to Criminal Rule 720(D): "There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal." Nonetheless, a hearing on the motion followed on November 16, 2012, during which the same trial judge noted that he drives by the subject property several times a week and it "is a mess." Notes of Testimony at 3 (Hearing of November 16, 2012), C.R. Item No. 25. In addition, in response to the judge's inquiry, the Township's zoning officer indicated that Birk was not "within code." Id. at 4. The judge directed that Birk be cited again and dismissed Birk's motion for relief with prejudice. That same day, November 16, the trial judge also signed and filed another order providing the Township with authority to enter Birk's property, remove any materials deemed to create a public nuisance, and charge the costs associated therewith against Birk and his wife, who is the apparent record property owner.
Birk's motion was denied orally during the hearing and a subsequent order to that effect was filed on November 27, 2012.
Thereafter, on that same day, November 16, Birk filed a Notice of Appeal to the Pennsylvania Superior Court, appealing from the order of August 31, 2012. Common pleas directed Birk to file a concise statement of errors complained of on appeal. Birk complied and the trial judge issued an opinion observing that Birk's appeal was timely and disposing of the matters raised on appeal. The orders entered on September 6 and 7 and November 16, each authorizing the Township to remove items from the Birk premises and to assess costs against the Birks, have not been appealed; the August 31 order is the only order subject to appeal.
Inexplicably, the record contains an order signed by a different judge on October 25, 2012, and filed November 5, 2012, granting Birk's petition for leave to appeal nunc pro tunc the August 31 order and affording him 10 days to file any post-trial motions. Neither the docket nor the record appears to contain a petition seeking permission to appeal nunc pro tunc. Thereafter, by order dated and filed on November 13, the October 25th order was vacated.
Not only is the August 31 order the only one cited in his notice of appeal, the text of the August 31 order appears in Appellant's brief under "Order Being Appealed." After quoting the August 31 order, Appellant notes that "[a]n additional order for Property Removal was issued on 7 September 2012." Brief for Appellant at 3. Even if this appeal were deemed to encompass the September 7 order, it would be untimely.
The Superior Court transferred the appeal to this court.
It is well settled that an untimely appeal to this court deprives the court of jurisdiction to entertain the merits. See generally Calvo v. Dep't of Transp., Bureau of Driver Licensing, 717 A.2d 1102, 1104 (Pa. Cmwlth. 1998); Workmen's Comp. Appeal Bd. v. Budd Co., 370 A.2d 757, 758 (Pa. Cmwlth. 1977). Moreover, the timeliness of an appellant's appeal may be raised sua sponte by the court. Budd Co., 370 A.2d at 758. Pursuant to Rule of Appellate Procedure 903(a), an appeal must be filed "within 30 days after the entry of the order from which the appeal is taken." Here, Birk's appeal was not filed until November 16, well more than thirty days after the August 31 order. Accordingly, we lack jurisdiction and must quash this appeal.
While there is some suggestion in the record that this order may not have been filed until sometime after August 31, common pleas's docket reflects that Birk was found guilty on August 31 and a penalty was imposed on that same date. Thus, in light of the certified docket, and both Birk's and the trial judge's reference to the subject order as the order dated August 31, we do not question the order's entry date reflected on the docket. In deeming Birk's appeal timely, we presume common pleas incorrectly assumed that a petition for reconsideration extends the time for appeal. That is incorrect. See generally City of Philadelphia v. Frempong, 865 A.2d 314, 317-18 (Pa. Cmwlth. 2005).
We do note that after a brief review of the arguments set forth in the appellate brief, we conclude that Birk has failed to raise any argument warranting a reversal of the fine. --------
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 17th day of October 2013, Appellant's appeal in the above captioned matter is hereby QUASHED.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge