IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Burton Samuel Comensky, : No. 1431 C.D. 2013
Appellant : Submitted: April 25, 2014
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 30, 2014
Burton Samuel Comensky (Comensky), pro se, appeals from the
Allegheny County Common Pleas Court’s (trial court) July 23, 2013 order finding
him guilty under the City of Duquesne’s (City) Property Maintenance Code (PMC),
Section 108.1.1. Although Comensky presents eight issues in his Statement of
Questions Involved, they may be summarized as follows: (1) whether the City’s
violation notice (Notice) and private criminal complaint (Complaint) violated
Comensky’s due process rights; (2) whether the Complaint was valid, and whether
the City’s Building Code Official Donald McCrimmon (McCrimmon) was authorized
to file it; (3) whether the City Solicitor’s (Solicitor) statements to the trial court were
prejudicial; and, (4) whether the trial judge was biased. Upon review, we affirm.
Comensky is the owner of property located at 32 S. 6 th Street in the City.
By April 23, 2012 Notice, McCrimmon notified Comensky:
Your property at 32 S[.] 6th Street has numerous code
violations. Please contact me at the above number, so that
we can discuss how to remediate these violations. If you do
not contact my office, I will have to file charges at the
District Magistrate.
Original Record (O.R.), Item No. 13. Comensky did not contact McCrimmon. On
October 3, 2012, McCrimmon filed the Complaint against Comensky alleging that he
violated PMC Sections 108.1.1 (unsafe structures), 108.1.3 (structure unfit for human
occupancy), 304.7 (roofs and drainage) and 304.13 (window, skylight and door
frames).1 The Complaint listed the address of the property and quoted the specific
sections of the PMC without explanation of how Comensky’s property was in
violation of the identified sections. The Magisterial District Judge (MDJ) held a
hearing which Comensky did not attend. The MDJ fined Comensky $300.00 for each
violation. On February 27, 2013, Comensky appealed from the MDJ’s order to the
trial court.
On May 28, 2013, the trial court held a de novo hearing. At the hearing,
Comensky, pro se, briefly discussed the alleged defects in the Notice and the
Complaint. The Solicitor represented that Comensky’s noncompliance had been a
longstanding problem. Comensky objected to the Solicitor’s representation that the
condition of his property had been a longstanding concern. The parties also discussed
the effect of a prior bankruptcy on Comensky’s liability. The trial court continued
the hearing for 60 days and directed Comensky to talk with McCrimmon to determine
the required repairs and to correct the violations during that time or he would be
fined.
The hearing before the trial court was reconvened on July 23, 2013.
McCrimmon agreed to withdraw three of the four charges against Comensky because
Comensky had taken remedial action to abate them. Thus, the trial court considered
only the charge under PMC Section 108.1.1 pertaining to unsafe structures.
McCrimmon described debris still present on Comensky’s property, and an unsafe,
1
See O.R., Item No. 14, Ex. B.
2
unstable wall remaining from a garage that Comensky contended he was in the
process of removing. By July 23, 2013 order, the trial court found Comensky guilty
of violating PMC Section 108.1.1 and fined him $300.00. However, the trial court
informed Comensky that if he removed the remaining wall, cleaned up the property
within 30 days, and notified the trial court that he had done so, the trial court would
waive the fine. Comensky appealed to this Court.2
Comensky first contends that both the Notice and the Complaint were
defective, and that the defects deprived him of his due process rights.3 In regards to
the Notice, Sections 107.1 and 107.2 of the PMC provide:
107.1 Notice to person responsible. Whenever the code
official determines that there has been a violation of this
code or has grounds to believe that a violation has occurred,
notice shall be given in the manner prescribed in Sections
107.2 and 107.3 [pertaining to method of service] to the
person responsible for the violation as specified in this
code. Notices for condemnation procedures shall also
comply with Section 108.3.
107.2 Form. Such notice prescribed in Section 107.1 shall
be in accordance with all of the following:
1. Be in writing.
2. Include a description of the real estate sufficient for
identification.
3. Include a statement of the violation or violations and why
the notice is being issued.
4. Include a correction order allowing a reasonable time to
make the repairs and improvements required to bring the
2
“In reviewing a summary conviction matter, where the trial court has taken additional
evidence in de novo review, our standard of review is limited to considering whether the trial court
abused its discretion or committed an error of law.” Commonwealth v. Halstead, 79 A.3d 1240,
1242 (Pa. Cmwlth. 2013).
3
“Fundamentally, due process affords an individual notice and opportunity to be heard.”
Weaver v. Franklin Cnty., 918 A.2d 194, 203 (Pa. Cmwlth. 2007).
3
dwelling unit or structure into compliance with the
provisions of this code.
5. Inform the property owner of the right to appeal.
6. Include a statement of the right to file a lien in
accordance with Section 106.3.
PMC §§ 107.1, 107.2. The Notice to Comensky did not comply with PMC Sections
107.1 and 107.2. The Notice did not “[i]nclude a statement of the violation or
violations and why the notice is being issued.” PMC § 107.2. It did not “[i]nclude a
correction order allowing a reasonable time to make the repairs and improvements
required to bring the dwelling unit or structure into compliance . . . .” Id. Further, the
Notice did not “[i]nform [Comensky] of the right to appeal.” Id. Finally, it did not
“include a statement of the right to file a lien in accordance with Section 106.3.” Id.
Instead, McCrimmon’s Notice merely notified Comensky that there were “numerous
code violations,” identified the property at issue, requested that Comensky call him to
discuss the matter, and threatened Comensky with a criminal complaint if he failed to
do so. O.R., Item No. 13.
With respect to the Complaint, Pennsylvania Rule of Criminal Procedure
403(A) (Rule 403(A)) requires that every citation for a summary offense must
contain:
(1) the name and address of the organization, and badge
number, if any, of the law enforcement officer;
(2) the name and address of the defendant;
(3) a notation if the defendant is under 18 years of age and
whether the parents or guardians have been notified of the
charge(s);
(4) the date and time when the offense is alleged to have
been committed, provided however, if the day of the week
is an essential element of the offense charged, such day
must be specifically set forth;
4
(5) the place where the offense is alleged to have been
committed;
(6) a citation of the specific section and subsection of the
statute or ordinance allegedly violated, together with a
summary of the facts sufficient to advise the defendant
of the nature of the offense charged;
(7) the date of issuance;
(8) a notation if criminal laboratory services are requested
in the case;
(9) a verification by the law enforcement officer that the
facts set forth in the citation are true and correct to the
officer’s personal knowledge, or information and belief, and
that any false statements therein are made subject to the
penalties of the Crimes Code, 18 Pa.C.S. § 4904, relating to
unsworn falsification to authorities.
Pa.R.Crim.P. 403(A) (emphasis added). Here, the Complaint did not comply with the
requirements of Rule 403(A). The Complaint simply identified the subject property
by its address and quoted four PMC provisions verbatim. It did not state “the date
and time when the offense is alleged to have been committed.” Id. More
importantly, although the Complaint references the specific sections of the PMC
under which Comensky was charged, it did not provide any “facts . . . to advise the
defendant of the nature of the offense charged.” Id.
In support of his contention that the aforementioned defects deprived
him of due process, Comensky relies upon this Court’s opinion in Commonwealth v.
Borriello, 696 A.2d 1215 (Pa. Cmwlth. 1997), aff’d, 723 A.2d 1021 (Pa. 1999). In
Borriello, the defendant landowners were charged with violating a borough ordinance
under twenty-six separate citations, and convicted on all twenty-six counts. On
review, this Court noted that the citations did not reference the ordinance sections
under which the defendants were ultimately convicted. Further, the citations failed to
5
order the defendants to repair the structure, and did not identify the repairs necessary
for compliance. This Court ultimately reversed the convictions, explaining:
We . . . find insufficient nexus between the charges
contained in the citations and the provisions relied upon by
the trial court to sustain conviction for summary violation . .
. . We further find that the citations lacked sufficient notice
to provide a reasonable opportunity for the owners to
make repairs in order to eliminate the dangerous
condition without facing conviction.
Id. at 1218-19 (emphasis added).
The instant matter is clearly distinguishable from Borriello. Here, the
trial court provided Comensky with “a reasonable opportunity . . . to make repairs in
order to eliminate the dangerous condition without facing conviction.” Id. At the
May 28, 2013 hearing, McCrimmon was present, and the Solicitor offered to discuss
the necessary repairs with Comensky to ensure that Comensky knew what repairs
were required. The trial court continued the May 28, 2013 hearing specifically to
provide Comensky with 60 days to remediate the violations, and then reconvened on
July 23, 2013 to hear from the parties and determine if Comensky had indeed done
so. Thus, the concerns present in Borriello are not at issue here.
Further, 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, 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.
6
Pa.R.Crim.P. 109 (emphasis added).4 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.” (Emphasis added). Thus, the
defects in the Complaint were not fatal unless they resulted in actual prejudice to
Comensky.
At the May 28, 2013 hearing, the trial court provided Comensky with
actual notice of the bases for the specific offenses charged, and an opportunity
thereafter to address the violations. The record evidence reveals that Comensky
understood the violation pertaining to the remaining garage wall as Comensky
admitted to the same at the hearing. See Notes of Testimony (N.T.), May 28, 2013 at
14. Comensky conceded that after the May 28, 2013 hearing he understood he was
to speak to McCrimmon to fully determine the property’s noncompliance and the
corrections necessary. See N.T., July 23, 2013 at 7. The trial court gave Comensky
60 days to make repairs and took no action until the July 23, 2013 hearing, when it
learned that Comensky had failed to remove the remaining garage wall. It was not
until after there had been a disclosure and discussion of the specific concerns with the
property, a 60 day period to remedy the violation, and a second hearing that the trial
court found Comensky guilty of violating PMC Section 108.1.1.5 Thus, neither the
defective Notice nor the defective Complaint deprived Comensky of notice or an
opportunity to be heard.
Comensky also challenges the Complaint’s validity, asserting that
McCrimmon was not authorized to issue the Complaint because he is not a law
4
“Such prejudice will not be found 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[.]” Borriello, 696 A.2d at
1217 (citation omitted); see also Commonwealth v. Halstead, 79 A.3d 1240 (Pa. Cmwlth. 2013).
5
The three other charges against Comensky were withdrawn at the July 23, 2013 hearing.
7
enforcement officer. Pennsylvania Rule of Criminal Procedure 402 states, “Law
enforcement officers shall ordinarily institute summary proceedings by citation.”
Pennsylvania Rule of Criminal Procedure 420 provides: “When the affiant is not a
law enforcement officer, the affiant shall institute a criminal proceeding in a
summary case by filing a complaint with the proper issuing authority.” This Court
has held that “where authorized, a code enforcement officer has the authority to file
criminal complaints.” Commonwealth v. Whiteford, 884 A.2d 364, 366 n.3 (Pa.
Cmwlth. 2005). Further, “[b]ecause the code enforcement officer has been charged
with the enforcement, a code enforcement officer is a ‘law enforcement officer’
within the meaning of Pa.R.Crim.P. 402.” Commonwealth v. Daugherty, 829 A.2d
1273, 1277 (Pa. Cmwlth. 2003). In the instant matter, McCrimmon was authorized
by PMC Section 106.3 to “institute the appropriate proceeding at law or in equity
to restrain, correct or abate such violation . . .” when Comensky failed to comply with
the Notice. (Emphasis added). Accordingly, Comensky’s argument is without
merit.6
Comensky next contends that the Solicitor’s statements referencing
Comensky’s alleged prior noncompliance prejudiced the factfinder. The law is well-
established that “[c]omments by a prosecutor do not constitute reversible error unless
the unavoidable effect of such comments would be to prejudice the [factfinder],
forming in [his] mind a fixed bias and hostility toward the defendant such that they
could not weigh the evidence objectively and render a true verdict.” Commonwealth
6
We also reject Comensky’s argument that McCrimmon does not qualify as a code
enforcement official because he was not certified in accordance with the Uniform Construction
Code (UCC) and that the trial court should not have permitted McCrimmon to testify as an expert
witness. The UCC refers to the code established by Section 301 of the Pennsylvania Construction
Code Act, Act of November 10, 1999, P.L. 491, as amended, 35 P.S. § 7210.301. Comensky was
charged with violating provisions of the PMC, not the UCC. McCrimmon, as the City’s PMC code
official, had authority to institute proceedings against Comensky, and to provide testimony in that
capacity as to his observations of the property. Accordingly, we discern no error.
8
v. Thomas, 783 A.2d 328, 335 (Pa. Super. 2001) (quoting Commonwealth v.
Bronshtein, 691 A.2d 907, 917 (Pa. 1997)). Moreover, “[i]t has long been held that
trial judges, sitting as factfinders, are presumed to ignore prejudicial evidence in
reaching a verdict.” Commonwealth v. Irwin, 579 A.2d 955, 957 (Pa. Super. 1990).
In response to Comensky’s objections to the Solicitor’s comments at the
hearing about the property’s longstanding problems, the trial court made it
emphatically clear that the Solicitor’s statements did not have a prejudicial effect:
“It’s pretty hard to prejudice a Judge. It’s from today on. You are out of compliance
today. If you don’t get into compliance, then you get fined. It’s as easy as that.”
N.T., May 28, 2013 at 16-17. Thereafter, at the July 23, 2013 hearing, upon hearing
McCrimmon’s testimony regarding the property’s current condition and reviewing
photographs of the property, the trial court found Comensky guilty of violating PMC
Section 108.1.1. Comensky’s brief does not further discuss how the trial court was
allegedly prejudiced, but merely speculates that the Solicitor’s comments prejudiced
the trial court, stating, “it appears as if the seed was planted . . . . As the seed was
planted the sprout has sprung and the plant is viewing sunlight.” Comensky Br. at 11
(emphasis added). Because the record evidence contradicts Comensky’s position, his
argument cannot stand.
Finally, Comensky asserts that the trial court demonstrated a
predisposition against him when the trial judge referred several times to the
likelihood that the matter would be appealed, routinely overruled his objections,
prevented him from raising issues in his defense, and prohibited him from offering
evidence. This Court has held: “[T]he party who asserts that a trial judge must be
disqualified bears the burden of producing evidence establishing bias, prejudice or
unfairness.” Wertz v. Chapman Twp., 709 A.2d 428, 438 (Pa. Cmwlth. 1998).
“Rulings on the admissibility of evidence are within a trial court’s discretion and
those rulings should not be reversed on appeal absent a clear abuse of discretion.”
9
Sitoski v. Dep’t of Transp., Bureau of Driver Licensing, 11 A.3d 12, 22 (Pa. Cmwlth.
2010). After a careful review of the record, we detect no bias, prejudice or unfairness
by the trial judge and, therefore, no predisposition, and conclude the trial court did
not abuse its discretion in making its evidentiary rulings.7
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
7
We note that Comensky’s attempts to raise issues in his defense and attack McCrimmon’s
credibility involved efforts to present evidence and introduce statutory authority that was not
relevant to the Complaint and McCrimmon’s authority under the PMC.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
v. :
:
Burton Samuel Comensky, : No. 1431 C.D. 2013
Appellant :
ORDER
AND NOW, this 30th day of July, 2014, the Allegheny County Common
Pleas Court’s July 23, 2013 order is affirmed.
___________________________
ANNE E. COVEY, Judge