Opinion
No. 855 C.D. 2013
11-15-2013
Commonwealth of Pennsylvania v. Linda S. Light, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Linda S. Light appeals a judgment of the Court of Common Pleas of Berks County (trial court) fining her $20,000, plus fees and costs, for the unlawful accumulation of junk, trash, debris and unlicensed vehicles on property that she owns with her brother, George Light. The trial court gave Light 90 days to clean up her property and sell it. During that 90 days, Bethel Township was barred from enforcing the trial court's judgment. Light contends that the record evidence did not support the trial court's findings of fact and conclusions of law and that the trial court had no authority to order her to sell her property. We affirm.
George Light has filed a separate appeal to this Court at Light v. Commonwealth, No. 853 C.D. 2013. In her brief, Light describes the penalty as $40,000, but that represents the total of the penalties imposed on her and on her brother.
Light's property has been the subject of enforcement actions for several years. In 2009, Light was cited two times for allowing junk to accumulate on her property. After she appealed her 2010 conviction, the Township agreed to suspend the fine of $19,500 for each citation if she remediated the property within 120 days. In February 2012, the Township again cited Light. Again, she agreed to clean up the property or list it for sale. She did not do so.
On August 15, 2012, the Township issued two citations, which are the subject of this appeal, charging Light with several violations of the Bethel Township Unsafe Property and Structure Ordinance (Ordinance). Specifically, it charged her with two violations of Section 5 of the Ordinance, entitled "Property." The first citation arose from Section 5(a)(3), which states:
(a) Yards, Open Lots, Parking Areas. No person shall permit or maintain:
BETHEL TOWNSHIP ORDINANCE, ORD. NO. 2008-08 (2008), §5(a)(3); Reproduced Record at 12a (R.R. ___). The second citation arose from Section 5(c)(4) of the Ordinance, which states:
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(3) Objectionable materials to accumulate and be blown around the surrounding neighborhood[.]
(c) Miscellaneous Provisions. No person shall permit or maintain:
BETHEL TOWNSHIP ORDINANCE, §5(c)(4); R.R. 12a-13a. The citations also notified Light that under Section 9(c) of the Ordinance she could be fined for each citation, and 21 days after the citation, a daily fine of $1,000 could be imposed for each citation.
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4) Accumulate, store, maintain or otherwise allow the accumulation of Municipal waste, Garbage, Refuse, or similar material except for such limited storage of the same awaiting prompt removal by licensed companies or personnel.
Specifically Section 9(c) of the Ordinance provides that it
shall be a summary offense, punishable by a fine in the amount of One Thousand Dollar ($1,000.00) for each offense. The fine shall be in addition to any and all costs incurred and reimbursed to the Township in the event the Township must remedy the violation. The fine shall commence on the 21st day after notice is issued by the Township. Each day thereafter that the violation remains shall be considered a separate offense. The Court, may, in its discretion also impose imprisonment for each violation according to law.BETHEL TOWNSHIP ORDINANCE, §9(c), R.R. 14a.
On October 23, 2012, a magisterial district judge found Light guilty of violating Sections 5(a)(3) and 5(c)(4) of the Ordinance. Light was ordered to pay $10,000 for each violation. Light then appealed to the trial court, which conducted de novo review.
At the trial, the Township presented several witnesses. Robin Royer, the Township's zoning officer, testified that she issued the two citations. Township Supervisor Randall Haag testified about his inspection of Light's property in March 2012. He described piles of garbage cans, garbage bags, and tires. The property also contained numerous piles of wooden and plastic rubbish, as well as abandoned vehicles and house trailers. Haag took numerous photographs that were entered into evidence. Herbert Zechman, the Chairman of the Township's Board of Supervisors, testified that he visited the property several times. Most recently, on September 21, 2012, he examined the property and took photographs. His observations of the debris on the property confirmed those of Haag. He added that house trailers on the property were filled with junk. Further, he saw no attempt by Light or her brother to clean up their property.
The photographs in the certified and reproduced record are in black and white. The Township states that the photographs submitted to the trial court were in color. Further, Light has reduced the size of the photographs in the reproduced record, making them impossible to examine. The Township has provided colored copies of the photographs as an appendix to its brief. The photographs taken by Haag are identified as Exhibit 3, Nos. 1-70.
The photographs are identified as Exhibit 4, Nos. 71-86.
Light testified. She explained that the property was purchased to store "stuff" that she and her brother "want to keep or try to sell [at flea markets]." R.R. 7a. She did not concede that the items were junk or garbage. Some of the items, such as copper wiring and air conditioning units, had been stolen. Light asserted that the items stored on her property could not be deemed junk if they were valuable enough to steal. She agreed that the photographs introduced as evidence accurately depicted the condition of the property.
Light's brother, George, also testified. He testified that they were trying to clean up some sections of the property but were busy with doctor appointments. He noted that the property has a gate and no trespassing signs, but items continue to be stolen. He agreed that the property has remained in basically the same condition since 2009.
George Light explained that they listed the property for sale, through a realtor, at $150,000, and an adjoining neighbor offered to pay the asking price and to take responsibility for remediating the property. The Lights rejected the offer because the offer was contingent on an immediate closing, which would not give the Lights time to remove items they wished to keep. In addition, based on a conversation with another realtor, the Lights decided that the property was worth $300,000.
The trial court found that the condition of the property had remained unchanged since 2009. The trial court explained as follows:
The evidence was clearly sufficient to find [Light] guilty of the offenses charged beyond a reasonable doubt. The pictures are worth a thousand words. They clearly show that the accumulation of trash and rubbish has continued unabated and that [Light has] not cleaned up the property as originally agreed in December 2010. The Township has been lenient with [Light] considering the fact that the fines could have accumulated for each day the condition of the property remained unabated. [Light has] had ample notice and [was] given ample time since November 2009 to cure the violations.Trial Court Opinion at 6-7. The Township then argued that Section 9(c) of the Ordinance authorized the imposition of fines from August 15, 2012, onward, which would total several hundred thousand dollars. The trial court fined Light $10,000 for each violation, for a total of $20,000. The trial court informed the Township that if the situation was not remediated in 90 days, it should "take my judgment and enter it and if necessary, sell it yourself at auction[.]" R.R. 9a. Specifically, the sentencing orders provided that Light was given "90 days to clean up the property and sell, after that the township may come and execute on the property." Judgments of Sentence, Light's Brief, Attachments 3 and 5.
Light now appeals to this Court, raising the following three issues. First, she contends that the verdict is not supported by sufficient evidence. Second, she contends that the trial court erred in ordering her to sell the property. Third, she contends that the fine was excessive and illegal.
Our scope of review of a trial court's determination of an appeal of a summary conviction is whether there has been an error of law, or whether the trial court's findings are supported by competent evidence. Commonwealth v. DeLoach, 714 A.2d 483, 485 n.5 (Pa. Cmwlth. 1998).
In her first issue, which challenges the sufficiency of the evidence, Light makes several arguments. She argues that there was no evidence that she failed to maintain the property in a safe, sound, and secure manner; that it was speculative that standing water in containers or tires was a breeding ground for mosquitoes; and that labeling the items on the property as garbage was speculative. Although the Ordinance treats each day of a continuing violation as a separate offense, the exact number of days was not listed on the citation. Further, the Township did not present evidence on the exact number of days.
The Township counters that the evidence was overwhelming. The photographs show a garage and a mobile home stuffed with debris. They show piles of trash, junk, tires, metal, old clothes and plastic containers strewn throughout the property. Unidentifiable material hangs from tree branches. As noted by the trial court in its opinion, "[t]he pictures are worth a thousand words." Trial Court Opinion at 6.
To prove a violation of Sections 5(a)(3) and 5(c)(4) of the Ordinance, the Township had to establish that Light accumulated objectionable materials on the property or permitted the accumulation of waste, garbage or refuse on the property. The Township did not have to establish that the property was maintained in an unsafe manner or was a breeding ground for mosquitoes and disease. Light's arguments in this regard are simply irrelevant. As to Light's claim that it was "speculative" to find the items to be garbage, the photographs alone support the trial court's finding.
We also agree that the evidence supported the imposition of a $20,000 fine. Light was cited on August 15, 2012. Under Section 9(c) of the Ordinance, a fine begins to accumulate 21 days after the citation's issuance and each day thereafter constitutes a separate offense. Light has never claimed that the citation was inadequate in any way. She offers no authority to support her argument that the Township must present evidence of the exact number of days of the continuing violation. The fine imposed by the trial court equals nine "separate offenses" as to Sections 5(a)(3) and 5(c)(4) of the Ordinance. Light does not claim that the Township failed to prove an ongoing violation of at least nine days.
Proceedings involving municipal ordinance violations that could result in imprisonment are governed by the Pennsylvania Rules of Criminal Procedure. See Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 (Pa. Cmwlth. 2002). Pennsylvania Rule of Criminal Procedure 109 provides as follows:
Section 9(c) of the Ordinance gives the trial court discretion to impose imprisonment.
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.Pa. R. Crim. P. 109. See also DeLoach, 714 A.2d at 486 (party raising a defect as to notice in municipal ordinance violation proceeding has the burden of showing defect was prejudicial).
At trial, Light did not claim there was a defect in either of the two citations that resulted in two separate $10,000 fines. Nor has she shown why she was prejudiced by not knowing "the exact number of days" for which she could be fined. Light's Brief at 13. Light has been on notice since 2009 that the property was in violation of the Ordinance. Her brother, the co-owner of property, admitted that its condition has remained basically unchanged from that time until the trial court proceeding on March 25, 2013. The trial court did not err in imposing a $20,000 fine; Section 9(c) of the Ordinance authorized a fine of $1,000 per day over the course of Light's most recent violation period.
In her second issue, Light argues that the trial court lacked authority to order the sale of the property. Further, the sale is impossible because the Township has encumbered the property with liens.
In its opinion filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), the trial court explains that it did not order Light to sell the property. The testimony presented at trial indicated that Light had a purchaser for the property who was willing to pay the full asking price. Selling the property was a choice available to Light to avoid continuing violations. Accordingly, the trial court gave Light 90 days to bring the property into compliance with the Ordinance or sell it. If she failed to do so, the Township would then be free to pursue its legal remedies to satisfy the fines and costs imposed. We agree that the trial court did not order Light to sell the property.
It requires "the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record" to file an opinion in support of its rulings. PA.R.A.P. 1925(a).
In her third issue, Light claims that a $40,000 fine for storing junk and garbage in a rural area is excessive. The Township rejoins that Light's contention is conclusory and devoid of analysis. We agree.
The trial court explained in its 1925(a) opinion that Light did not explain why the fines were excessive or illegal. Accordingly, the court was "constrained to speculate the basis for this claim." Trial Court Opinion at 8. The trial court surmised that Light was asserting that the $40,000 fine was excessive because each co-owner was fined individually for the same offense. The trial court explained that this Court resolved that issue in Commonwealth v. DeLoach, 714 A.2d 483 (Pa. Cmwlth. 1998).
In DeLoach, landowners, a husband and wife, were each assessed $535,000 in fines and costs for violating a junkyard ordinance. They claimed that they could not each be fined individually because they owned the property as tenants by the entireties. We rejected this claim. We explained that each landowner listed on the deed could be charged and fined separately for violations that occur on their property. Id. at 488. Consistent with DeLoach, we reject Light's final claim of error.
Light and her brother are listed on the deed to the property as tenants in common. --------
For these reasons, we affirm the order of the trial court.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 15th day of November, 2013, the order of the Court of Common Pleas of Berks County, dated March 25, 2013, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge