Opinion
No. 631 C.D. 2008.
Submitted: January 30, 2009.
Filed: July 13, 2009.
BEFORE: PELLEGRINI, Judge; LEAVITT, Judge; FLAHERTY, Senior Judge.
OPINION NOT REPORTED
William Lucabaugh, pro se, appeals from two orders dated October 22, 2007, of the Court of Common Pleas of Schuylkill County (trial court). The first order denied his Motion to Dismiss with Prejudice and his Motion for Jury Trial. The second order finds Lucabaugh guilty of violating Section 110.1 of the City of Pottsville's (City) International Property Maintenance Code/2006 (Code) and imposing fines and costs. We affirm.
This appeal was transferred to this Court from the Superior Court on March 3, 2008.
Lucabaugh owns property located at 317 N. George Street in the City. This matter began on March 19, 2007, when the Director of Code-Enforcement Zoning for the City issued a violation notice to Lucabaugh by certified mail that he was in violation of Sections 304.6 and 304.10 of the City's Code due to the very poor exterior condition of Lucabaugh's property. The violation notice further informed Lucabaugh that he had 30 days from receipt of the notice to correct the listed violations or a citation would be issued followed by a summary trial. The violation notice did not advise Lucabaugh of his appeal rights as required by Section 107 of the Code. The violation notice was returned to the City as unclaimed.
Section 304.6 of the Code provides as follows:
EXTERIOR WALLS; 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 decay.
Section 304.10 of the Code provides as follows:
STAIRWAYS, DECKS, PORCHES AND BALCONIES; Every exterior stairway, deck, porch and balcony, and all appurtenances attached thereto, shall be maintained structurally sound, in good repair, with proper anchorage and capable of supporting the imposed loads.
Section 107.2 of the Code governs the form of a violation notice and provides that the notice shall "[i]nform the property owner of the right to appeal."
The City included with the March 19, 2007, violation notice an outstanding notice of demolition and the order for demolition of the property dated April 25, 2005. The notice and order were originally issued to the previous owner of the property, Robert Nicastro, and mailed via certified mail. The notice and order of demolition informed Mr. Nicastro that he had 20 days to appeal the demolition order to the Appeals Board. The City received a signed certificate of receipt for the notice of demolition and order for demolition of the property. It is not clear from the record whether Mr. Nicastro exercised his appeal rights.
On April 10, 2007, the City posted the property with the same violations notices and demolition order that were sent via certified mail to Lucabaugh. By letter of May 4, 2007, Lucabaugh informed the City that he had found the posted violation notice dated April 10, 2007. It is clear from the May 4th letter that Lucabaugh requested an administrative hearing on the violations listed in the posted March 19, 2007, violation notice. With regard to the demolition order, Lucabaugh requested that the City send him a copy of the entire file within ten days.
By letter of May 8, 2007, sent via certified mail, the City informed Lucabaugh that his appeal was untimely as he did not appeal within 20 days as required by Section 111.1 of the Code. The letter further advised Lucabaugh that pursuant to the violation notice posted on the property on April 10, 2007, Lucabaugh had 30 days, or until May 10, 2007, to correct the violations or legal action would be taken against him.
Section 111.1 of the Code provides as follows:
Application for appeal. Any person directly affected by a decision of the code official or a notice or order issued under this code shall have the right to appeal to the board of appeals, provided that a written application for appeal is filed within 20 days after the day the decision, notice or order was served. An application for appeal shall be based on a claim that the true intent of this code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or the requirements of this code are adequately satisfied by other means.
By letter dated May 10, 2007, Lucabaugh notified the City that the violation notice did not contain his appeal rights nor did the notice posted on the property. As a result, Lucabaugh requested that the City reconsider its denial of an appeal hearing and grant an administrative hearing.
By letter of May 17, 2007, the City advised Lucabaugh that the April 25, 2005 demolition/repair order issued against the property could still be enforced. The City explained that when an individual purchases a property, any outstanding correction orders against the property become the responsibility of the new property owner to abate. The City requested that Lucabaugh contact the Director of Code-Enforcement Zoning to discuss a solution to the problems with the property thereby avoiding the issuance of a citation. By letter of June 1, 2007, Lucabaugh informed the City that he was agreeable with the suggestion that a meeting take place and asked the City to set up an appointment.
On or about June 4, 2007, Lucabaugh was issued a citation charging him with violating Section 110.1 of the Code for failing to abate an outstanding, unsatisfied demolition order against his property. The citation did not charge Lucabaugh with violating Sections 304.6 or 304.10 of the City's Code as set forth in the March 19, 2007 violation notice.
Section 110 of the Code governs demolition. Section 110.1 provides as follows:
General. The code official shall order the owner of any premises upon which is located any structure, which in the code official's judgment is so old, dilapidated or has become so out of repair as to be dangerous, unsafe, unsanitary or otherwise unfit for human habitation or occupancy, and such that it is unreasonable to repair the structure, to demolish and removes such structure; or if such structure is capable of being made safe by repairs, to repair and make safe and sanitary or to demolish and remove at the owner's option; or where there has been a cessation of normal construction of any structure for a period of more than two years, to demolish and remove such structure.
On or about June 28, 2007, the District Judge issued a summons to Lucabaugh. A hearing was conducted before the District Judge on August 23, 2007. While the City appeared before the District Judge and presented evidence, Lucabaugh, or a representative on his behalf, did not appear at the hearing.
After the hearing, the District Judge issued an order on August 23, 2007, finding Lucabaugh guilty of the summary offense of violating Section 110.1 of the Code. The District Judge ordered Lucabaugh to pay fines and costs in the amount of $361.00.
Lucabaugh timely appealed, pro se, the District Judge's decision to the trial court. Thereafter, Lucabaugh filed a Motion to Dismiss with Prejudice along with a supporting brief. Therein, Lucabaugh argued, inter alia, that his right to due process of law was violated when the City failed to notify him of his appeal rights and that the District Judge violated Rules 319, 320 and 322 of the "Pennsylvania Rules of Conduct, Office Standards, and Civil Procedure for District Justices." The trial court held a hearing on Lucabaugh's Motion to Dismiss and the appeal of the District Judge's order on October 22, 2007. At the beginning of the hearing, Lucabaugh presented the trial court with an additional Motion for Jury Trial. The trial court denied the Motion for Jury Trial on the basis that Lucabaugh was not entitled to a jury trial on appeal from a summary conviction in which the potential incarceration was only 60 days. See Commonwealth v. Kerry, 906 A.2d 1237 (Pa.Super. 2006) (The right to a jury trial exists when a defendant faces a charge which, alone, could lead to imprisonment beyond six months.).
Rules 319 and 322 govern the "Failure of a Party to Appear at a Hearing" and "Hearings and Evidence", respectively. See Pa.R.C.P.M.D.J. Nos. 319; 322. Rule 320 was rescinded by Order of December 16, 2004, effective July 1, 2005.
Next, the trial court asked Lucabaugh if he was representing himself and Lucabaugh, without answering with a direct yes or no, stated that he was proceeding in court. Accordingly, the trial court asked Lucabaugh why he wanted the case dismissed. Lucabaugh replied that the case should be dismissed for procedural errors primarily but that he wanted to correct an error in his Motion to Dismiss. Lucabaugh explained that he cited to the incorrect District Judge rules and wished to clarify that he was asking for the case to be dismissed pursuant to Criminal Rules 455(B) and 455(D), Pa. R. Crim. P. 455(B); (D). Lucabaugh argued that the District Judge did not comply with Rule 455(B) because the District Judge failed to determine the facts and render a verdict. Lucabaugh argued further that the District Judge violated Rule 455(D) by failing to give him notice of the conviction and sentence by first class mail; therefore, there was nothing to appeal. Because there was a hearing before the District Judge and because Lucabaugh apparently did receive notice of the conviction and sentence thereby enabling him to file a timely appeal, the trial court denied the Motion to Dismiss.
Rule 455 governs "Trial in Defendant's Absence" in a summary case. Rule 455(B) provides that "[a]t trial, the issuing authority shall proceed to determine the facts and render a verdict." Rule 455(D) provides, in pertinent part, that "[i]f the defendant is found guilty, the issuing authority shall impose sentence, and shall give notice by first class mail to the defendant of the conviction and sentence, and of the right to file an appeal within 30 days for a trial de novo."
At that point, the trial court asked Lucabaugh if he still wanted to pursue his appeal in light of his two motions being denied. In response, Lucabaugh requested that the trial court enter an adverse decision without proceeding any further because he was guaranteed a trial by jury in all criminal proceedings pursuant to the United States Constitution. Lucabaugh explained that because his jury trial has been denied he would like the trial court to enter an adverse order so that he could take an appeal. Lucabaugh also informed the trial court that he did not wish to present any evidence on his behalf with regards to the merits of his appeal because all of his objections were procedural. The trial court then attempted to clarify whether Lucabaugh's objections were limited to just his denial of a jury trial. In response, Lucabaugh stated that all other objections are included in the paperwork and they will be preserved for appeal.
At that point, the trial court strongly urged Lucabaugh to obtain legal counsel and posed several questions to Lucabaugh to ensure that he understood the nature of the citation and the consequences of proceeding pro se. Lucabaugh refused to obtain legal counsel or participate in the merits of his appeal on the basis that he did not want to proceed in the trial court if he was not going to have a jury trial. The trial court then proceeded with a de novo hearing and heard testimony on behalf of the City in support of its issuance of the citation to Lucabaugh.
At the conclusion of the City's case in chief, the trial court again asked Lucabaugh if he wished to question the City's witness and Lucabaugh declined. The trial court then informed Lucabaugh that this was his only opportunity to ask questions and if he did not do so, he would not have another opportunity to do so. Lucabaugh again refused to question the witness. Immediately prior to the ruling, the trial court gave Lucabaugh one last chance to offer any testimony on the merits and Lucabaugh again refused.
Accordingly, at the conclusion of the hearing, the trial court determined that Lucabaugh violated Section 110.1 of the City's Code, imposed the same fines and costs as the District Judge in addition to any costs that may have been incurred in filing with the trial court, and denied the appeal. The trial court then filed an Order/Sentence — Summary Offense dated October 22, 2007, finding Lucabaugh guilty of violating Section 110.1 of the City's Code and sentencing Lucabaugh to pay the costs of the prosecution and the fine, surcharge(s) and costs originally imposed by the District Judge within 60 days.
By separate order of October 22, 2007, the trial court denied Lucabaugh's Motion to Dismiss for Failure to Abide by Magisterial District Judge Rules 319, 320 and 322 and Motion for Jury Trial. The trial court explained in this order that it denied the Motion for Jury Trial on the basis that on appeal from a summary conviction of violating the City's building code where the potential incarceration is 60 days, the United States and Pennsylvania Constitutions do not entitle Lucabaugh to a jury trial. The trial court further explained that it denied the Motion to Dismiss because Lucabaugh's motion was misguided in that it argues civil rules when the District Judge was guided by the criminal rules in this matter.
While the actual motion filed by Lucabaugh is entitled "Motion to Dismiss with Prejudice", it is clear that the trial court's renaming of the motion was harmless error.
We recognize that Lucabaugh advised the trial court that he cited the incorrect rules in his Motion to Dismiss and argued instead that the District Judge violated Criminal Rules 455(B) and 455(D). Again, this was harmless error on the trial court's part as the trial court did not err in rejecting Lucabaugh's argument and denying his Motion to Dismiss after determining that the District Judge did not violate the foregoing Rules.
On November 20, 2007, Lucabaugh timely appealed, pro se, the trial court's orders of October 22, 2007. By order of November 20, 2007, the trial court ordered Lucabaugh to file a Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Lucabaugh filed a timely Statement of Matters Complained of on Appeal. Therein, Lucabaugh raises five issues which all relate to the alleged denial of his due process rights based on the trial court's dismissal of his Motion to Dismiss.
In an opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court determined that the only issue of a specific nature set forth in Lucabaugh's Statement of Matters Complained of on Appeal was Lucabaugh's claim that he was denied informal or formal discovery. Notwithstanding this determination, the trial court addressed Lucabaugh's demand for a jury trial and his intention not to participate in the proceedings before the trial court unless the same was granted. Citing to Kerry v. Commonwealth, the trial court again concluded that Lucabaugh was not entitled to a jury trial because the potential incarceration for the violation of Section 110.1 of the City's Code was 60 days.
With regard to Lucabaugh's contention that he was denied discovery, the trial court determined that the evidence submitted to the court at the October 22, 2007, hearing was the same evidence submitted to the District Judge to which Lucabaugh had ample access as presented at that hearing. The trial court determined that the City had no other evidence to disclose to Lucabaugh. Therefore, the trial court found that the City had disclosed all the information that it had in its file when the code enforcement officer presented the same exhibits at the District Judge's hearing.
Finally, the trial court opined that the City presented evidence beyond a reasonable doubt through the testimony of the City's witness and the exhibits presented that Lucabaugh violated Section 110.1 of the City's Code. The trial court opined further that evidence also supported the court's imposition of costs and the payment of the fine, surcharges and costs originally imposed by the District Judge in the amount of $361.00.
In his pro se appeal to this Court, Lucabaugh raises the following issues in his Statement of the Questions Involved:
This Court's review of a common pleas court order is limited to a determination of whether constitutional rights were violated and whether the common pleas court abused its discretion or committed an error of law. Mann v. City of Philadelphia, 563 A.2d 1284 (Pa.Cmwlth. 1989),petition for allowance of appeal denied, 525 Pa. 622, 577 A.2d 892 (1990).
In the interest of clarity, we have reordered the issues.
1. Whether there is any subject matter properly before this Court or the underlying courts;
2. Whether the trial court lost jurisdiction when the judicial procedure is violated, judicial impartiality is breached, or when the trial court does not know the law; and
3. Whether the principle of "due process of law" has been violated in this case.
We initially note that a review of Lucabaugh's Statement of Matters Complained of on Appeal and his brief reveals that he is only taking issue with the trial court's October 22, 2007, order denying his Motion to Dismiss. Therefore, he has waived any issue with regard to his Motion for Jury Trial, his conviction for violating Section 110.1 of the City's Code, and the fines and costs imposed as a result of that conviction. See Lower Paxton Township Board of Supervisors v. Okonieski, 620 A.2d 602 (Pa.Cmwlth.), petition for allowance of appeal denied, 535 Pa. 642, 631 A.2d 1012 (1993) (Failure to raises issues in the Statement of Matters Complained of on Appeal as required by Pa.R.A.P. 1926(b) results in a waiver of those issues.).
We point out that a pro se litigant must to some extent assume the risk that his lack of legal training will prove his undoing. Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081 (1985).
With respect to the first issue raised, Lucabaugh argues that this Court and the underlying courts do not have subject matter jurisdiction due to the initial due process of law violations; specifically, the City's failure to initially notify him of his appeal rights. However, Lucabaugh's argument is misguided.
We begin with the well-established principle that subject matter jurisdiction is a question that is not waivable. In re Adoption of N.M.B., 564 Pa. 117 n. 1, 764 A.2d 1042, 1045 n. 1 (2000). Subject matter jurisdiction is conferred by the Constitution and laws of this Commonwealth. Heath v. Workers' Compensation Appeal Board (Board of Probation and Parole), 580 Pa. 174, 860 A.2d 25 (2004). It is well settled that the test for determining whether a court has jurisdiction of the subject matter is competency of the court to determine controversies of the general class to which the case presented for its consideration belongs. Strank v. Mercy Hospital of Johnstown, 376 Pa. 305, 309, 102 A.2d 170, 172 (1954). The key question is whether "the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case." Id.
In the present matter, this Court and the underlying courts all have the power to enter upon the inquiry. In other words, each court has subject matter jurisdiction. The magisterial district judge has jurisdiction over summary offenses pursuant to Section 1515 of the Judicial Code, 42 Pa. C.S. § 1515. The common pleas court clearly has jurisdiction of appeals from judgments entered by a magisterial district judge pursuant to Section 932 of the Judicial Code, 42 Pa. C.S. 932, which governs appeals from the minor judiciary. Finally, this Court, by reason of Section 762(a)(4) of the Judicial Code, 42 Pa. C.S. § 762(a)(4), has exclusive jurisdiction of appeals from courts of common pleas in cases involving the enforcement of local government criminal ordinances.
Accordingly, we reject Lucabaugh's contention that his Motion to Dismiss should have been granted based on lack of subject matter jurisdiction in this matter.
Next, Lucabaugh contends that the trial court lost jurisdiction when judicial procedure was violated, judicial impartiality was breached, and the trial court did not know the law. Lucabaugh's arguments in support of this issue are lengthy, confusing and convoluted.
The trial court did not "lose" jurisdiction over Lucabaugh's appeal from his summary conviction because of errors allegedly committed by the District Judge or the trial court. As stated previously herein, the trial court had subject matter jurisdiction in this matter.
As to the allegations that judicial procedure was violated, judicial impartiality was breached and the trial court did not know the law, it is difficult to ascertain exactly what Lucabaugh's arguments are in this regard. It appears as though Lucabaugh first believes that judicial procedure was violated by the trial court's refusal to enter an adverse order after denying Lucabaugh's motions. Lucabaugh contends that his appeal to this Court from the trial court's order denying his Motion to Dismiss and Motion for Jury Trial should be treated as an emergency appeal rather than an appeal from a final order because his due process rights were violated. We decline that request.
A final appealable order was entered in this matter. As such, the requirements for an emergency appeal have not been satisfied. See Pa.R.A.P. 301(e) (An emergency appeal is only permitted where the party intending to appeal an adverse action is unable to secure the formal entry of an appealable order pursuant to the usual procedures.).
Next, Lucabaugh takes issue with: (1) the District Judge's conduct with respect to service of the summons and hearing notice; and (2) the District Judge conducting a "fiction at law" hearing. Lucabaugh's contentions in this regard set forth facts clearly not of record. Moreover, Lucabaugh failed to raise this issue in his Statement of the Matters Complained of on Appeal; therefore, it is waived. Lower Paxton Township Board of Supervisors. Accordingly, we decline to address this issue any further.
Next, Lucabaugh takes issue with the trial court's dismissal of his Motion to Dismiss and the Motion for Jury Trial. Lucabaugh contends that the insufficiency of the violation notice was before the trial court in the Motion to Dismiss but the trial court did not review the evidence to determine if Lucabaugh had proper notice. Lucabaugh contends that this was error on the part of the trial court. We disagree.
Lucabaugh's objections in his Motion to Dismiss as to the violations of his rights to due process appear to be based solely on the March 19, 2007, violation notice. However, this matter does not involve the March 19, 2007, violation notice advising Lucabaugh that he was in violation of Sections 304.6 and 304.10 of the City's Code. Lucabaugh was only cited for and convicted of violating Section 110.1 of the Code arising from the outstanding demolition order for his property. Therefore, this appeal only involves that conviction. Accordingly, the trial court did not err by not addressing Lucabaugh's objections based on any defects in the March 19, 2007, violation notice.
Finally, we conclude that Lucabaugh has also waived any issue regarding judicial impartiality for failure to raise it before the trial court or in his Statement of Matters Complained of on Appeal. Pa.R.A.P. 302(a) (Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.); Lower Paxton Township Board of Supervisors.
The final issue raised in this appeal is whether the principle of "due process of law" has been violated in this case. In support of this issue, Lucabaugh once again presents a confusing and convoluted argument.
The crux of the argument again appears to be that Lucabaugh's due process rights were violated by the City for failing to include an explanation of his appeal rights on the violation notice as required by Section 107 of the City's Code. However, Lucabaugh's arguments regarding defective notice all relate to the March 19, 2007, violation notice that was posted on his property on April 10, 2007. We once again point out that this appeal does not involve the March 19, 2007, violation notice.
Accordingly, the trial court's October 22, 2007, orders are affirmed.
ORDER
AND NOW, this 13th day of July, 2009, the two orders of the Court of Common Pleas of Schuylkill County, dated October 22, 2007, entered in the above captioned matter are affirmed.