Opinion
No. 1291 C.D. 2014 No. 1292 C.D. 2014
07-13-2015
Commonwealth of Pennsylvania v. Ronald Braho, Appellant Commonwealth of Pennsylvania v. Tracy Braho, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEADBETTER
Appellants, Ronald and Tracy Braho, appeal from the orders of the Court of Common Pleas of Mercer County (trial court) which found Appellants guilty of the summary offense of violating West Middlesex Borough Ordinance Number 2 of 2004, in violation of Section 903(a)(1) and (a)(2) of the Pennsylvania Construction Code Act (Construction Code Act) and imposed fines of $250 plus costs. We affirm, as modified.
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.903(a)(1), and (a)(2).
Appellants currently reside at 9 Penn Avenue, West Middlesex, PA 16159. On November 8, 2012, a fire on Appellants' property damaged an RV, a trailer and the front of Appellants' house. On November 29, 2012, the Borough sent Appellants a Code Complaint advising them that the Borough Council would like them to stay on top of the cleanup of the burned RV. Certified Record Item (C.R.) No. 2. On January 10, 2013, the Borough mailed a notice of violation to Appellants advising them that conditions on their property violated Sections 302.8, 304.6, and 308.1 of the 2009 International Property Maintenance Code (IPMC). Reproduced Record (R.R.) at 9a. The notice stated:
Section 302.8 of the IPMC prohibits the parking or storage of inoperative or unlicensed motor vehicles and the keeping of a vehicle in a state of major disassembly, disrepair or in the process of being stripped or dismantled. Section 304.6 provides that all exterior walls shall be free from holes, breaks, and loose or rotting materials; and maintained weatherproof and properly surface coated where required to prevent deterioration. Section 308.1 prohibits the accumulation of rubbish or garbage. R.R. at 9a-10a.
This Notice of Violation is a follow up to our phone conversation on 12/11/2012. After being advised that the Borough was receiving complaints on your property, you stated that the insurance company was prohibiting you from removing anything from the property. The Borough contacted a representative from your insurance company who stated that they placed no such restrictions on you and that you are free to clean up the property. Given the growing concerns of the community and your lack of response to our letter of 12/14/2012 (attached), we must issue the following order.
Id. (emphasis in original). Appellants were given 60 days to make all necessary repairs. R.R. at 10a.
NOTICE OF VIOLATION
This property is in violation of 34 Pa[.] 403 and in violation or subject to the following sections of the 2009 International Property Maintenance Code.
This property has burnt/inoperable RV and Trailer, damaged siding, and excessive debris and rubbish.
34 Pa. Code § 403.1 contains the administration provisions of the Uniform Construction Code as adopted by the Construction Act.
On May 30, 2013, Appellants sent the Borough a letter advising that they were unable to clean up their property because of litigation. Id. at 8a. Appellants requested that the Borough provide them with a copy of the letter from their insurance company informing the Borough that Appellants were not prohibited from cleaning up their property. Id. On June 19, 2013, the Borough solicitor, Robert J. Tesone, sent Appellants a letter informing them that they "must remove all debris from your property so that it conforms to the Code requirements of West Middlesex Borough within ten (10) [sic] of the date of this letter or the West Middlesex Code Officer will file an appropriate enforcement action." Id. at 23a. Attached to the letter was a copy of Ordinance No. 1 of 2009, pursuant to which the Borough adopted the IPMC.
On August 21, 2013, Jeffrey S. Richardson, the Borough building code officer, filed private criminal complaints against each Appellant. Id. at 4a-5a. The criminal complaints alleged:
Defendant's property at 9 Penn Avenue was [sic] has a burnt/inoperable recreational vehicle and trailer upon the property and the structures on the property are in serious disrepair and Defendants have permitted the accumulation of rubbish and trash on the property.Id. at 5a. The complaints alleged that these conditions were in violation of Sections 903(a)(1) and (a)(2) of the Construction Code Act. Id.
On or about November 29, 2012 a Notice of Violation was submitted to the Defendants for failure to remedy the code violations. See Attachment "A"
The Borough of West Middlesex Pennsylvania adopted the Pennsylvania Uniform Construction Code pursuant to Ordinance No.1 of 2009 on April 15, 2009.
This statement is incorrect. The Borough adopted the IPMC on April 15, 2009, pursuant to Ordinance No. 1 of 2009. C. R. Item No. 2. The IPMC has not been adopted by the Commonwealth, but individual municipalities are permitted to adopt and enforce the IPMC. Enforcement of IPMC requirements falls outside the Uniform Construction Code. See Pennsylvania Department of Labor and Industry, http://www.portal.state.pa.us/portal/server.pt/community/uniform_construction_code/10524/ucc_codes/553803 (last visited June 23, 2015). The Borough adopted the Uniform Construction Code on June 21, 2004, pursuant to Ordinance No. 2 of 2004.
On October 22, 2013, during a hearing before the magisterial district judge, the parties agreed that the Borough would contact Appellants' insurance company, Millville Mutual Insurance Company, to determine the status of Appellants' claim. C. R. Item No. 2. By letter dated November 15, 2013, the insurance company advised the Borough that Appellants' file was closed without payment and they were free to do whatever they wished with their property. R.R. at 16a. On February 14, 2014, the magisterial district judge found Appellants guilty and imposed fines of $250 and costs. C. R. Item No. 1. Appellants, proceeding pro se, appealed their summary convictions to the trial court. Id.
On June 26, 2014, the trial court held a hearing at which witnesses for the Borough and Appellants testified. The trial court entered the following amended verdicts/orders: "Defendant is guilty of violating West Middlesex Ordinance Number 2 of 2004, in violation of the Construction Code Act found at 35 Pa.C.S.A. §7210.903(a)(1) & (2)." Exhibit A to Appellants' Brief. Appellants filed a Statement of Errors Complained of on Appeal asserting seven grounds for error. The trial court filed an opinion in support of its order pursuant to Appellate Rule 1925(a), Pa.R.A.P. 1925(a). The trial court opined that the Construction Code Act and Ordinance No. 2 of 2004 create strict liability and that a violation exists once a property is no longer in compliance with the requirements of the ordinance. Trial Court's Opinion at 5-7. The trial court also concluded that there was sufficient evidence of record to support Appellants' conviction based upon the testimony of the Borough's code officer that Appellants had failed to make any significant progress in cleaning up their property or remedying violations of the Construction Code Act, photographs taken of the property the day before the hearing, and testimony from a neighbor that Appellants' property had been in poor condition for several years. Trial Court's Opinion at 11-12. These appeals followed.
By order dated September 29, 2014, this Court consolidated Appellants' individual appeals. Additionally, Appellants are represented by counsel before this Court.
Appellants assert that the trial court erred in finding them guilty of a summary offense when the record demonstrated their efforts to bring their property into compliance with the ordinance and the Commonwealth's failure to present any evidence that they intended to violate the ordinance. Appellants argue that the trial court should have reviewed the ordinance to determine whether it requires proof of criminal intent or guilty knowledge by considering the ordinance's manifest purpose, design, subject matter and language. Appellants assert that the instant summary offenses are appropriate situations where the application of criminal intent or culpability is consistent with the effective enforcement of the law defining the offense.
Section 305(a) of the Crimes Code, 18 Pa. C.S. § 305(a), provides that the culpability requirements found in Section 301 and 302 of the Crimes Code, 18 Pa. C.S. §§ 301 and 302, are inapplicable to summary offenses. Specifically, Section 305(a)(1) and (a)(2) provide that the culpability requirements are not applicable to:
(1) summary offenses, unless the requirement involved is included in the definition of the offense or the court determines that its application is consistent with effective enforcement of the law defining the offense; orSection 106.3 of the IPMC provides: "Any person failing to comply with a notice of violation...shall be deemed guilty of a misdemeanor or civil infraction as determined by the local municipality and the violation shall be deemed a strict liability offense." (Emphasis in original.) Because Section 106.3 of the IPMC specifically deems violations of the code a strict liability offense, the trial court was not required to determine whether the application of criminal intent or culpability is consistent with the effective enforcement of the law. Consequently, the trial court was not obligated to consider either Appellants' intentions or actual efforts to clean up their property.
(2) offenses defined by statutes other than this title, in so far as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.
Appellants also assert that they never received notice of the ordinance used by the Borough to allege a summary offense and that the trial court erred in connecting the IPMC to the Ordinance No. 2 of 2004 offered by the Borough at trial. Appellants point out that the trial court found them guilty of violating West Middlesex Ordinance No. 2 of 2004 in violation of the Construction Code Act found at 35 P.S. § 7210.903 (a)(1) and (2), but that Section 903 of the Construction Code Act is a penalty section that does not describe any violations. Appellants contend that the complaints referenced Ordinance No. 1 of 2009, which the Borough failed to provide to them, resulting in Appellants having insufficient notice of the violation. Appellants also challenge the trial court's conclusion that Ordinance No. 2 of 2004 "adopts the Uniform Construction Code and certain sections of the 2009 [IPMC]." Trial Court's Opinion at 5. Accordingly, Appellants assert that the evidence submitted by the Commonwealth was insufficient, as a matter of law, to establish a connection between Ordinance No. 2 of 2004 and the provisions of the IPMC on which the Commonwealth relied to prove Appellants guilty of summary offenses.
Section 903(a)(1) and (a)(2) provide:
(a) VIOLATION OF ACT.—
(1) Any individual, firm or corporation that violates any provision of this act commits a summary offense and shall, upon conviction, be sentenced to pay a fine of not more than $ 1,000 and costs.
(2) Each day that a violation of this act continues shall be considered a separate violation.
The essential elements of a summary offense must be set forth in the citation so that the defendant has fair notice of the nature of the unlawful act for which he is charged. Commonwealth v. Feineigle, 690 A.2d 748, 751 (Pa. Cmwlth. 1997). When a citation contains defects, the court must look to the state rules of criminal procedure for the consequences of that defect. Commonwealth v. Neitzel, 678 A.2d 369, 374 (Pa. Super. 1996). Any defects in the content of a complaint do not automatically render charges invalid. Pennsylvania Rule of Criminal Procedure 109 (Rule 109) provides:
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint...unless the defendant raises the defect before the conclusion of the trial in a summary case...and the defect is prejudicial to the rights of the defendant.Pa.R.Crim.P. 109. The official comment to Rule 109 states in relevant part: "As a condition of relief regardless of whether the defect is in form, content, or procedure, the court or issuing authority must determine that there is actual prejudice to the rights of the defendant." A court will not find prejudice "where the content of the citation, taken as a whole, prevented surprise as to the nature of summary offenses of which defendant was found guilty at trial or the omission does not involve a basic element of the offense charged[.]" Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997) (citation omitted). Thus, the defects in the complaints were not fatal unless they resulted in actual prejudice to the Appellants.
After reviewing the record, we conclude that Appellants failed to raise the defects in the complaints before either the district judge or the trial court. Nevertheless, because the complaints filed by the Borough contain factual and legal errors, we will consider whether Appellants suffered actual prejudice.
The complaints improperly stated that the Borough had adopted the Uniform Construction Code pursuant to Ordinance No. 1 of 2009, when that ordinance resulted in the adoption of the IPMC. The complaints alleged that Appellants' failure to properly maintain their property was in violation of Sections 903(a)(1) and (a)(2) of the Construction Code Act, when enforcement of the IPMC is solely based on Ordinance No. 1 of 2009 and is outside the Construction Code Act. However, the complaints filed by the Borough notified Appellants that the Borough had taken issue with the "burnt/inoperable recreational vehicle and trailer upon the property and the structures on the property are in serious disrepair and [Appellants] have permitted the accumulation of rubbish and trash on the property." R.R. at 5a. The complaints also reference Ordinance No. 1 of 2009.
Further, the complaints were filed nearly ten months after the Borough first contacted Appellants and nine months after the Borough issued a notice of violation which provided a detailed description of the violations observed on the property and the sections of the IPMC violated. R.R. at 9a-10a. In the five months following the filing of the complaints, Appellants continued to have contact with Borough representatives, appeared at the hearing before the district judge and the hearing before the trial court. At no time, did Appellants express any confusion regarding which offenses they were charged. Appellants were at all times aware that the Borough wanted them to remove the RV, the trailer and the debris, and repair the siding on the house. Appellants simply wanted to clear the property by themselves and did not wish to hire help in order to comply with the Borough's time-frame. We conclude that the defects in the complaint did not prejudice Appellants.
To the extent that the trial court's amended verdicts/orders of court adjudicated Appellants as guilty of violating "West Middlesex Ordinance No. 2 of 2004 in violation of Sections 903(a)(1) and (a)(2) of the Construction Code," the verdicts are modified to state that "Defendant is guilty of violating West Middlesex Ordinance No. 1 of 2009."
Accordingly, we affirm, as modified.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 13th day of July, 2015, the orders of the Court of Common Pleas of Mercer County are hereby affirmed, as modified.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge