IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Borough of Phoenixville :
:
v. : No. 1374 C.D. 2015
: Argued: June 6, 2016
ATL Associates, :
Appellant :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: August 19, 2016
ATL Associates (ATL) appeals an order of the Court of Common
Pleas of Chester County (trial court), which adjudged ATL guilty of a violation of
the housing standards of the Borough of Phoenixville’s Municipal Code (Borough
Code)1 and imposed a fine of $2,000 and restitution in the amount of $1,478. ATL
contends that the citation was invalid because the Borough did not notify it of the
violation or give it an opportunity to correct the problem before it issued the
citation. We agree and reverse the order of the trial court.
ATL owns a residential rental property located at 306 High Street,
Phoenixville, Pennsylvania (Property). In May and June 2014, the Borough’s
Code Enforcement Officer, Michael Baurley, visited the Property and found grass
taller than the maximum permissible height and accumulations of trash and
garbage. In response, the Borough issued a citation to ATL for violating two
1
The entire Borough Code is available online at http://ecode360.com/PH1486 (last visited July
14, 2016).
property maintenance provisions of the Borough Code, and it was convicted by the
Magisterial District Judge. ATL then filed a de novo appeal to the trial court,
which conducted a hearing on February 5, 2015.
At the hearing, Baurley testified that ATL was the Property’s owner
and has a mailing address of P.O. Box 1941, West Chester. Notes of Testimony
(N.T.), 2/5/2015, at 7; Reproduced Record at 7 (R.R. __). Baurley testified that on
February 25, 2014, the Borough condemned the Property for non-payment of
invoices for water, sewer, and trash services and posted a notice on the Property
stating that it was “Unfit for Human Habitation” under authority of the Borough’s
Housing Code.2 Id. at 8; R.R. 8. The posted notice stated that it was a “Legal
Notice” and that the dwelling had been “found in violation of The Housing Codes
of the Borough of Phoenixville” and “IT IS HEREBY ORDERED that all persons
cease and desist from human occupancy as this dwelling is classified as: UNFIT
FOR HUMAN HABITATION.” C.R. Exhibit B-3. Accordingly, occupants, if
any, were ordered “to vacate the premises.” Id.
Baurley testified that on May 13, 2014, he found grass in the rear of
the Property that was over a foot in height. On June 2, 2014, he returned and
found the grass to be close to three feet high. The Borough contracted with
2
Chapter 11 of the Borough Code is designated as the Phoenixville Housing Code of 1976.
Section 11-218 of the Borough Code states, in relevant part, as follows:
1. Whenever the Housing Inspector finds that any dwelling constitutes a serious
hazard to the health or safety of the occupants or to the public because it is
dilapidated, unsanitary, vermin-infested or lacking in the facilities and equipment
required by this Part, he shall designate such dwellings as unfit for human
habitation. Such designation shall be posted on the dwelling and shall specify the
reason….
BOROUGH CODE §11-218(1).
2
Westerman’s Lawn & Tree Service, LLC (Westerman’s) to go to the Property to
dispose of trash and brush, clean the yard, and mow the lawn at a cost of $746.
Thereafter, on June 16, 2014, ATL was issued a citation for two violations of the
Borough Code. Count 1 of the citation charged ATL with a violation of Section
10-301 of the Borough Code3 because of the high grass on the Property. Count 2
of the citation charged ATL for allowing trash to accumulate on the Property in
violation of Chapter 5 of the Borough Code, which adopted the International
Property Maintenance Code (2009 ed.).4
Upon discovering high grass again in August 2014, Baurley directed
Westerman’s to remove weeds from the sidewalks, dispose of a concrete birdbath
and base pole, and cut down tree stumps. It did so on September 6, 2014. One
week later, Westerman’s returned to mow and trim the lawn, and to remove weeds.
3
It states, in relevant part:
§10-301. Grass, Weeds and Other Vegetation a Nuisance Under Certain
Conditions.
No person, firm or corporation, owning or occupying any property within the
Borough [of] Phoenixville shall permit any grass or weeds or any vegetation
whatsoever, not edible or planted for some useful or ornamental purpose, to grow
or remain upon such premises so as to exceed a height of six inches or to throw
off any unpleasant or noxious odor or to conceal any filthy deposit or to create or
produce pollen. Any grass, weeds or other vegetation growing upon any premises
in the Borough in violation of any of the provisions of this Section is hereby
declared to be a nuisance and detrimental to the health, safety, cleanliness and
comfort of the inhabitants of the Borough.
BOROUGH CODE §10-301; R.R. 35. Chapter 10 of the Borough Code governs Health and Safety.
4
Section 308.1 of the International Property Maintenance Code states:
308.1 Accumulation of rubbish or garbage. All exterior property and premises,
and the interior of every structure, shall be free from any accumulation of rubbish
or garbage.
R.R. 42.
3
Westerman’s charged the Borough $352 for this work. In October 2014, Baurley
directed Westerman’s to remove furniture, trash, and debris from the Property.
Westerman’s charged the Borough $380 for this work. The Borough paid these
invoices, but it has not been reimbursed by ATL.
On cross-examination, Baurley admitted that he did not notify ATL of
the violations either by first-class mail or certified mail. Also, he did not send a
notice of violation to ATL prior to, or after, issuing a citation.
Amrit Lal and Tony Lal appeared on behalf of ATL at the hearing.
Tony Lal explained that ATL is a partnership, and he is one of the partners. Lal
testified that he received the invoices for the work that had been done at the
Property as well as the citation; however, he never received a notice of a violation
or was provided an opportunity to bring the Property into compliance with the
Borough Code.
The trial court dismissed Count 1 of the citation, relating to grass,
because ATL had not been provided with notice – by personal service or mail –
directing that it clean up the Property prior to the issuance of a citation. With
regard to Count 2, relating to trash, the trial court found ATL guilty, stating:
With regard to the Housing Standards, which would be Count
2, and that would be the violation for the trash and garbage,
under, I guess, its Section 209, let’s keep it clean, that, too,
contains a notice requirement, but on that case I find the
defendant guilty because notice there may be served by posting
it in a conspicuous portion of the dwelling and such posting
shall be considered good and sufficient notice. So the fact that
this property was posted as condemned in at least February
serves as good and sufficient notice.
Therefore, upon the finding of guilt on Count 2, you shall pay a
fine of $2,000, as well as restitution to the borough for the
cleanup costs…is $1,478.
4
Trial Court op., 2/5/2015, at 29-30.
On appeal,5 ATL raises three issues. First, ATL contends that its
conviction should be set aside because the Borough did not provide ATL with
notice of a violation either by personal service or by mail. Second, ATL contends
that the Borough’s failure to provide such notice violated due process. Third, ATL
contends that the Borough’s posted condemnation notice did not constitute a valid
substitute for its obligation to notify ATL of the alleged violation of Chapter 5 of
the Borough Code for the accumulated trash.
We begin with a review of the relevant provisions of the Borough
Code. Chapter 5 of the Borough Code, entitled “Code Enforcement,” governs the
conditions and maintenance of all property, buildings and structures. Specifically,
Part 2 of Chapter 5, designated as the Property Maintenance Code, adopts the
International Property Maintenance Code (2009 ed.), as published by the
International Code Council. Inter alia, the Property Maintenance Code provides
standards for ensuring that structures are safe, sanitary and fit for occupation and
use, and for condemning and demolishing buildings and structures unfit for human
occupancy and use. Section 308.1 of the Property Maintenance Code provides:
All exterior property and premises, and the interior of every
structure, shall be free from any accumulation of rubbish or
garbage.
R.R. 42.
5
“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. Jannini, 125 A.3d 503, 508 n. 2
(Pa. Cmwlth. 2015).
5
The Borough has also adopted ordinances to regulate the maintenance
of real property. Chapter 11, Part 2, of the Borough Code, designated as the
Phoenixville Housing Code of 1976,6 provides minimum standards for residential
properties, both rental and owner-occupied, that, inter alia, limit the accumulation
of garbage7 and rubbish8 on property. Specifically, Section 11-209 of the Borough
Code, entitled “Responsibilities of Owners and Occupants,” provides:
A. Every occupant of a dwelling, dwelling unit or rooming
unit shall maintain in a clean and sanitary condition that
part of the dwelling, dwelling unit and yard which he
occupies and controls….
***
C. Every occupant of a dwelling or dwelling unit shall
dispose of all rubbish, ashes, garbage and other organic
waste in a clean and sanitary manner by placing it in
approved storage or disposal facilities which are safe and
sanitary. Every occupant shall provide such facilities for
and within his dwelling unit and shall maintain them in a
clean and sanitary manner….
BOROUGH CODE §11-209; C.R. Exhibit B-35 at 8. Where it is determined that a
property is not in compliance with Section 11-209, the Borough Code requires that
6
BOROUGH CODE §§11-201 – 11-232.
7
Section 11-202 of the Borough Code defines “garbage” as “[t]he animal and vegetable waste
resulting from the handling, preparation, cooking and consumption of food.” BOROUGH CODE
§11-202; C.R. Exhibit B-35 at 1-2.
8
Section 11-202 of the Borough Code defines “rubbish” as
[c]ombustible and noncombustible waste materials except garbage, and shall
include the residue from the burning of wood, coal, coke and other combustible
material, paper, rags, cartons, boxes, wood, excelsior, rubber, leather, tree
branches, yard trimmings, tin cans, metals, mineral matter, glass crockery and
dust.
BOROUGH CODE §11-202; C.R. Exhibit B-35 at 3.
6
notice be given of that non-compliance. Specifically, Section 11-215 of the
Borough Code provides, in relevant part:
§11-215. Notices and Appeals.
1. When the Housing Inspector determines that there exists a
violation of any provision of this Part, he shall give written
notice of such violation to the violator. Such written notice
shall be served by registered or certified mail upon the violator
at his last known address. In the event such notice cannot be
served by registered or certified mail for any reason, such
notice may then be served by posting it in a conspicuous
portion of the dwelling and such posting shall be considered
good and sufficient notice.
2. The notice of violation shall specify the violation which
exists and a reasonable time within which to correct it. The
notice may also describe a course or remedial action which will
effect compliance with this Part.
BOROUGH CODE §11-215; C.R. Exhibit B-35 at 13.9 Further, Section 11-232 of the
Borough Code prescribes the penalties for violations of the Housing Code
provisions:
In addition to any other sanction or remedial procedure
provided, any person who shall violate any provision of
[Chapter 11, Part 2] shall, upon conviction thereof, be
sentenced to pay a fine of not more than $1,000 and costs of
prosecution, or in default of payment of such fine and costs, to
undergo imprisonment for not more than 30 days, provided that
each day that a violation is permitted to continue, after notice,
shall constitute a separate offense.
BOROUGH CODE §11-232; C.R. Exhibit 35 at 22.
9
The Borough did not introduce a copy of a notice to ATL that alleged a violation of the
Borough’s trash ordinance.
7
In its first issue, ATL contends that its conviction for Count 2 of the
citation, pertaining to accumulated trash, should be set aside because the Borough
did not give it a notice of the violation before issuing the citation. The Borough
counters that its posting of the condemnation notice on the Property as unfit for
human habitation satisfied the notice requirements.10
When a borough chooses to regulate by ordinance, it must comply
with its provisions. See generally Philipsburg v. Way, 12 Pa.D. 173, 174 (1903)
1903 WL 2346 *2. Failure to do so deprives the borough of legal authority to
exercise jurisdiction over the property or the property owner. Id. See also Moon
Township v. Cammel, 687 A.2d 1181, 1186 (Pa. Cmwlth. 1997) (noting that
district justice properly dismissed enforcement citations because property owner
was not given opportunity to comply with ordinance before being cited); Township
of Maidencreek v. Stutzman, 642 A.2d 600, 602 (Pa. Cmwlth. 1994) (holding that
failure of township to satisfy notice requirements of the Municipalities Planning
Code11 rendered the trial court’s preliminary injunction a nullity).
Here, Section 11-215 of the Borough Code requires the Borough’s
Code Enforcement Officer, when a violation is observed, to “give written notice of
such violation to the violator. Such written notice shall be served by registered or
certified mail upon the violator at his last known address.” BOROUGH CODE §11-
215(1).12 This was not done. The Borough’s Code Enforcement Officer admitted
10
At the hearing, the Borough’s counsel argued, “This property has been condemned for a year.
That is his notice. No one has been occupying it. And not only – we didn’t give notice of the
June – he’s not entitled to notice, your Honor, anyway.” N.T., 2/5/2015, at 27; R.R. 27.
11
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §10101-11202.
12
At argument before this Court, the Borough argued that the notice requirement set forth in
Section 11-215 of the Borough Code is inapplicable; instead, the notice provision contained in
Chapter 5, Part 2, of the Borough Code (adopting the 2009 International Property Maintenance
(Footnote continued on the next page . . .)
8
that the Borough did not give written notice of the violation to ATL prior to the
issuance of the citation. N.T., 2/5/2015, at 21; C.R. 21.
Nonetheless, the Borough argues that it gave ATL notice of the
violation related to trash by posting the condemnation notice on the Property. In
support, the Borough directs this Court to a case from the United States District
Court for the Middle District of Pennsylvania, Jean v. Gerardi, 2012 WL 1604872
(M.D. Pa., No. 4:10-CV-1568, filed May 8, 2012), for the proposition that
Pennsylvania courts have long held that posting a property is sufficient notice of a
violation and also satisfies due process.
In Jean, a property’s detached garage, walls and roof were caving in.
The city mailed a notice of violation and notice of condemnation to the plaintiff
property owner at the rental property address; the notices were not returned as
undeliverable. The city did not receive a response from the property owner. The
city also placed a condemnation notice on the garage door giving notice of the
impending demolition of the garage. The city sent a second letter to the property
owner, who did not respond. The city demolished the garage. The District Court
held that because the notices were not returned as undeliverable, the city was
entitled to a presumption that notice was received. Further, the notice on the
garage constituted valid alternative notice, and the owner conceded that the city
had placed a notice on the door to the garage prior to demolishing the structure.
(continued . . .)
Code) was applicable, and that it satisfied those requirements. We are unpersuaded. The trial
court determined that ATL violated Section 11-209 of the Borough Code, which “contain[ed] a
notice requirement.” N.T., 2/5/2015, at 29; R.R. 29. At no time during or after the trial court
proceeding did the Borough object to the trial court’s use of the notice provisions set forth in
Section 11-215 of the Borough Code.
9
Jean is distinguishable from the instant matter because the Borough did not mail
notice of the violation to ATL or post a notice of violation.
Here, although Section 11-215 of the Borough Code permits the
Borough to post notice of the violation in a conspicuous place, this is to be done
only if notice of the violation cannot be served on the property owner by registered
or certified mail. The Borough did not present any evidence it could not serve
notice on ATL by mail. Therefore, in the absence of such evidence, the Borough
could not post notice of the violation in a conspicuous place on the Property.
Moreover, the condemnation notice did not constitute notice to ATL
of a violation of the trash ordinance. The Property was condemned for non-
payment of the Borough’s invoice for water, sewer, and trash services and was
posted nearly four months before the violation of the trash ordinance was first
observed. The condemnation notice did not state that there was garbage on the
Property, note a violation of the Borough’s trash ordinance, or set forth a timetable
for bringing the Property into compliance. Further, at the hearing, the Borough did
not present evidence that the Code Enforcement Officer observed garbage on the
Property when he posted the condemnation notice. In short, the condemnation
notice did not provide valid alternative notice of a violation.
Finally, the Borough contends that ATL was on notice to keep the
Property free from garbage and rubbish because it received the invoices from the
Borough for its costs to remove trash from the Property on seven occasions. We
disagree. The presence of garbage on the Property in August and October may
constitute new violations of the Borough Code, but is not notice for a violation that
is the basis of the June citation. Likewise, the invoices for the clean-up of the
10
Property in June, September and October are not a substitute for the notice of
violation required by the Borough Code.
We are cognizant that the Borough incurred significant costs in
cleaning up the Property. It may avail itself of civil remedies to recover these
costs. Nevertheless, the judgment against ATL cannot be sustained because the
citation was not validly issued.
For these reasons, we reverse the trial court’s order.13
_____________________________________
MARY HANNAH LEAVITT, President Judge
13
Because this Court has determined to reverse the trial court’s order, we need not address
ATL’s remaining arguments.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Borough of Phoenixville :
:
v. : No. 1374 C.D. 2015
:
ATL Associates, :
Appellant :
ORDER
AND NOW, this 19th day of August, 2016, the order of the Court of
Common Pleas of Chester County dated February 13, 2015 in the above-captioned
matter is REVERSED.
_____________________________________
MARY HANNAH LEAVITT, President Judge