Opinion
No. 940 C.D. 2012
04-08-2013
Commonwealth of Pennsylvania v. Estate of Norman Ferguson, Appellant
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter is a pro se appeal involving 30 summary criminal convictions for violations of Ordinance No. 429 of Plum Borough in Allegheny County, Pennsylvania (Borough) regarding dangerous structures. For the reasons set forth below, we reverse.
On each day from December 15, 2009, through January 14, 2010, Greg Bachy, the Borough's Code Enforcement Officer, issued non-traffic citations to Appellant, the Estate of Norman Ferguson, for violations of Borough Ordinance No. 429 for Appellant's failure to repair or demolish a dangerous building located at 7680 Saltsburg Road, Pittsburgh, Pennsylvania (Property). The Estate, administered by Robert D. Ferguson, is the owner of the Property. Each of the 30 citations states: "Defendant failed to demolish or repair structure located at [the Property] and failed to obtain required permits after being ordered to do so by Plum Borough Council." Appellant was adjudicated guilty on all 30 citations by a Magisterial District Judge on February 4, 2010. For each violation, Appellant was fined $300.00 and charged $67.00 in costs. There is no record of the proceeding before the District Judge. Appellant made a timely de novo appeal of the convictions to the Allegheny County Court of Common Pleas (trial court) on March 5, 2010.
The trial court scheduled a hearing for June 22, 2010, which was continued eight times at Appellant's request. The trial court finally held a very short hearing on April 17, 2012, finding Appellant guilty and setting the fine at $9,000, plus costs. (Record Item 19, April 17, 2012 Hearing Transcript (H.T.) at 4.) The Court concluded that, after eight continuances over nearly two years, it had to find Appellant guilty of the 30 violations of the Ordinance and impose a fine of $9,000 plus costs. (H.T. at 4.)
Appellant filed a notice of appeal to this Court and the trial court issued an opinion dated July 12, 2012. The trial court found: "Based on the evidence presented by Gregory Bachy, the Code Enforcement Officer for Plum Borough, and the evidence presented by Defendant, the Court found that Defendant had failed to make any real progress on correcting the violations, demolishing the building or properly constructing the fence around the property." (Trial Ct. Op. at 2.) In Appellant's statement of matters complained of on appeal, Mr. Ferguson claimed that the Borough Council's hearing and original finding that the Property was dangerous constituted an "abuse of power, corruption, and violation of rights [that] went on behind closed doors." (Trial Ct. Op. at 2.; R. Item 20, Statement of Matters Complained of on Appeal, June 5, 2012.) He also claimed that he asked the Borough for a hearing "several times" and submitted a report from his engineer that declared the Property safe, but that he "never heard back" and was forced to continue to tear down the building on the Property. (R. Item 20, Statement of Matters Complained of on Appeal, June 5, 2012.) The trial court does not address any of these issues other than to state (accurately) that "[i]t is difficult to understand Defendant's complaint." (Trial Ct. Op. at 2.)
On appeal to this Court, Appellant raises two issues: (1) the trial court erred in finding that there was sufficient evidence that the Property was condemned according to the law and (2) the trial court erred in finding that Appellant's constitutional rights were not violated. In his brief, Mr. Ferguson asserts that the Property was condemned "behind closed doors" and without notice in violation of his rights. He also asserts that a report from his engineer states that the building on the Property was safe and structurally sound.
In response, the Borough claims that Appellant waived the issue of whether the building is "dangerous" under the Ordinance because he failed to appeal from the Borough Council's hearing and its "Findings and Conclusions of Council" in September 2009. Thus, according to the Borough, the only issue before this Court is whether the trial court erred when it determined that Appellant was guilty of violating the Ordinance for failing to repair, vacate, or demolish the dangerous building.
We must reverse for the simple reason that there is absolutely no record establishing that the Borough met its burden of proof before the trial court to establish the existence of a "dangerous building" under the Ordinance or that Appellant committed the infraction for which he was cited. Although the Borough makes repeated references in its brief to the "Findings of Conclusions of Council," no such document was put in the record before the trial court. The Borough did not submit any evidence whatsoever before the trial court to establish the existence of a dangerous building on the Property, or to show that the Borough Council had previously made such a finding. As such, the trial court's ruling in favor of the Borough is not based on substantial record evidence. Indeed, it appears to be based on no evidence at all.
When Appellant appealed the Magisterial District Judge's guilty verdicts to the trial court, Appellant was entitled to a de novo proceeding before the trial court. Under the Local Agency Law, an appeal from a court that does not create a record, like the District Judge here, is de novo. 2 Pa. C.S. § 754(a). The trial court was required either to conduct a de novo trial or remand to the District Judge to create a record. Id. The trial court elected to conduct a de novo hearing. In the de novo proceeding, the burden remained on the Borough to establish that Appellant committed the alleged infraction. Id.; Appeal of Lawrence Township Board of Supervisors, 544 A.2d 1070, 1074 (Pa. Cmwlth. 1988) (holding that in a de novo appeal, the burden of proof is on the local agency, which has the affirmative duty to go forward with the evidence, notwithstanding that it was appellant who was appealing the local agency decision). The alleged infraction, as set forth on the citations themselves, stated that: "Defendant failed to demolish or repair structure located at [the Property] and failed to obtain required permits after being ordered to do so by Plum Borough Council." To substantiate the citations, the Borough was required to establish first that a "dangerous building" existed on the Property. Only then could the Borough attempt to prove that Appellant violated the Ordinance for failing to remedy the dangerous building, as charged in the citations.
2 Pa. C.S. §§ 551-555, 751-754.
Section VII of Ordinance No. 429 provides:
Section VII. Violations - Penalties.(Ordinance No. 429 § VII.)
The owner, occupant or lessee in possession of any building who shall fail to comply with any Notice or Order to repair, vacate or demolish any such "dangerous building," given by any person authorized by this ordinance to give such notice or order, or who violates any of the provision[s] of this ordinance, or any regulation issued thereunder, shall upon conviction before any alderman or magistrate of the Borough of Plum be subject to a fine not exceeding Three Hundred ($300.00) Dollars and costs. . . .
To establish the existence of a dangerous building under the Ordinance, the Borough Council is required, inter alia, to make findings of fact and issue an order in writing. The Ordinance provides:
Section V. Duties of Borough Council. The Borough Council shall: . . .
(a) Upon receipt of a report of the Building Inspector . . . give written notice to the owner . . . to appear before Council on the date specified in the notice to show cause why the building or structure reported to be a "dangerous building" should not be repaired, vacated, or demolished. . . .
(b) Hold a hearing and hear such testimony as the Building Inspector . . . or the owner . . . shall offer relative to the "dangerous building."
(c) Make written findings of fact from the testimony offered pursuant to subsection (b) as to whether or not the building in question is a "dangerous building" within the term of the Section I herein."
(d) Issue an order based upon findings of fact made pursuant to subsection (c) commanding the owner . . . to
repair, vacate, or demolish any building found to be a "dangerous building" within the terms of this ordinance. . . . .(Ordinance Number 429 § V.) See also 2 Pa. C.S. § 555 (requiring local agency adjudications to be in writing and to contain findings and a reason for the adjudication).
At the de novo trial before the trial court, the Borough may have met its burden simply by introducing the Borough Council's alleged "Findings and Conclusions" or the written order that the Borough Council is required to issue under the Ordinance. However, the Borough failed to make any record at all regarding the adjudication it allegedly made at some time during September 2009. In turn, the record before the trial court is bereft of any testimony or evidence regarding the condition of the building on the Property. On such a record, or lack thereof, we find that the trial court erred in finding Appellant guilty of violating the Ordinance.
Among the amorphous packet of information forwarded to this Court as a certified record are approximately ten identical photographs (marked "P13" in whose hand we do not know) that show the foundation of a building that has apparently been torn down and two gentlemen standing on the foundation, one of whom is holding a wrecking tool. These photos were not mentioned by the trial court. If, in fact, the building was torn down, it would appear that Appellant complied with whatever order the Borough issued and the matter would appear to be moot.
The Borough argues that it was sufficient that the trial court, upon weighing the evidence, found that Appellant had failed to construct an adequate fence around the Property. The Borough's argument misses the point. Appellant argued below and on appeal to this Court that the Borough failed to fulfill its burden to prove the underlying infraction, i.e., the Borough's initial determination that the structure on the Property was "dangerous." Accordingly, Appellant argues, essentially, that the Borough failed to issue a written final ruling, ignored the report of his engineer that the Property and structure were safe, and conducted a back-room hearing to adjudicate the Property as "dangerous." The trial court did not reject, or even address, any of those claims. The trial court issued no findings of facts or conclusions of law other than those pertaining to the inadequate fence. Under the Ordinance, at the very least, the Borough is required to issue "written findings of fact," which the Borough failed to do and the trial court failed to address. On this record, we have no recourse but to reverse. Of course, if such findings were made and were supported by substantial evidence, we would be in a different situation. However, as it stands, we cannot speculate what happened before the Borough Council or the trial court, and we can only conclude that the Borough failed to prove its case.
The Borough's counsel stated at the hearing before the trial court that the trial court had previously instructed Appellant to put a fence around the Property, although there is no such order in the record. (H.T. at 2.) Mr. Ferguson, administrator of the Estate, testified that he did put a fence around the Property and Mr. Bachy, the Borough's Code Enforcement Officer, testified that the fence was inadequate. (H.T. at 3.)
Attached to Appellant's brief are competing reports from the Borough's and Appellant's engineers, dated May 4, 2009, and September 28, 2009, respectively. The Borough's report states that the structure on the Property is dangerous and recommends that it be demolished pursuant to Ordinance 429. Appellant's report states that the structure is safe and could be renovated to make it safe for occupancy for a cost much less than fifty percent of the value of the house. Because the conflicting reports are attached only to the brief and are not marked as exhibits to any proceeding below, they are not part of the record and we have no way of determining if they were considered by the Borough Council or the trial court.
The Borough also argues that Appellant waived his opportunity to challenge the Borough Council's alleged "Findings and Conclusions" that the building on the Property is "dangerous" under the Ordinance. We disagree. In order to have waived a right to appeal the Borough's adjudication, there must have been, in the first place, an adjudication. On this record, there was none.
In the context of an appeal of an enforcement action and fines levied for an underlying zoning code violation, we have ruled that an appellant may waive the right to challenge the zoning code violation by failing to appeal that adjudication. For example, in Johnston v. Upper Macungie Township, the township zoning officer charged landowners with violating a provision of the zoning code prohibiting the operation of a business out of a private residence. 638 A.2d 408 (Pa. Cmwlth. 1994). The township notified the landowners of the violation and advised them, inter alia, of their rights to appeal the zoning officer's determination to the zoning hearing board and that if the violation was not remedied, enforcement proceedings would be commenced against them. Id. at 410. Landowners did not appeal and the township brought an enforcement action before a district justice, which found them guilty. Landowners appealed to the common pleas court, which remanded to the district justice for a determination on the issue of whether landowners were, in fact, operating a business in their home. The township appealed to this Court, arguing that landowners had waived their ability to challenge that issue by failing to appeal the zoning officer's underlying determination. We agreed with the township and reversed the common pleas court. We held that only the zoning hearing board could determine whether a violation of the township's zoning code had been committed and that, by failing to appeal the matter to the board, the violation determination was unassailable. Id. at 411-12 (applying the Municipalities Planning Code). Relevant to the matter here, what is clear from our analysis in Johnston is that there was notice to the landowners and an adjudication from which they could have appealed. Thus, we found that, because of the landowners' failure to appeal the adjudication, they could not raise a collateral attack on that adjudication through an appeal of the non-traffic citations. Here, as set forth above, there is no evidence of notice or an adjudication.
The Borough Council's adjudication under the Ordinance would have been appealable pursuant to the Local Agency Law. Under the Local Agency Law, "any person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals. . . ." 2 Pa. C.S. § 752 (emphasis added). At minimum, for an adjudication of a local agency to be appealable, the Local Agency Law requires notice of the proceedings and that the adjudication is in writing, containing findings and the reason for the adjudication. 2 Pa. C.S. §§ 553, 555. The Ordinance itself, as quoted above, also plainly requires the Borough Council to make findings of fact and issue an order in writing. (Ordinance Number 429 § V.)
Here, the Borough narrates in its brief that the non-traffic citations were issued following a final determination of the Borough Council that the structure on the Property was "dangerous" under the Ordinance. As set forth in the Borough's narrative, the Borough's engineer recommended that the building was a "dangerous building" and then the Borough building inspector, on July 30, 2009, "posted" the Property with a legal notice. (Borough Brief at 1-2.) The Borough Council conducted a hearing on an unspecified date in September 2009, at which the Council allegedly issued "Findings and Conclusions of Council," setting forth the determination that the building was "dangerous" under the Ordinance. (Id.) Appellant did not appeal the Council's determination. (Id.) Several months after the determination, Appellant had not complied with a "Notice to repair, vacate or demolish the dangerous structure" and so, according to the Borough's brief, the Council dispatched Mr. Bachy, the Borough's Code Enforcement Officer, to issue the aforementioned citations. (Id.)
The assertions of counsel in a brief or at a hearing are, of course, not evidence. The record contains no evidence whatsoever regarding any of the events that preceded the issuance of the citations. Thus, there is no evidence or record establishing, inter alia, (1) the Borough engineer's finding that the building on the Property is dangerous, (2) the posting of the Property, (3) the Borough Council's hearing, (4) the Borough Council's so-called "Findings and Conclusions of Council" that the Property was dangerous, (5) that Appellant received notice of any of the events that allegedly preceded the issuance of the citations, or (6) that Appellant was afforded any procedural due process before he was adjudicated guilty of violating the Ordinance.
Appellant has consistently disputed that any adjudication consistent with due process occurred, asserting before the trial court that whatever procedure occurred before the Borough was "behind closed doors." Although this issue was raised before the trial court, we have no ruling and no record on it. Thus, we conclude that Appellant did not waive his right to challenge the Borough's conclusion that the structure was dangerous, because there was no adjudication from which Appellant could have appealed. In turn, as explained above, because the Borough failed to meet its burden at the de novo hearing before the trial court, the trial court's finding that Appellant was guilty of violating the Ordinance is not supported by the record.
For the foregoing reasons, we reverse.
Our reversal is without prejudice to the Borough to commence entirely new proceedings regarding the current state of the Property that comport with due process, the Ordinance, and the Local Agency Law. --------
/s/ _________
JAMES GARDNER COLINS, Senior Judge ORDER
AND NOW, this 8th day of April, 2013, the order of the Allegheny County Court of Common Pleas is REVERSED.
/s/ _________
JAMES GARDNER COLINS, Senior Judge