City of Bethlehem v. A.S. Kanofsky, USA Appeal of: A.S. Kanofsky

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Bethlehem :
:
v. : No. 777 C.D. 2017
: Submitted: December 15, 2017
Alvin S. Kanofsky, :
United States of America :
:
Appeal of: Alvin S. Kanofsky :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT FILED: April 4, 2018

Alvin S. Kanofsky, pro se, appeals an order of the Court of Common
Pleas of Northampton County (trial court) affirming a decision of the City of
Bethlehem’s Blighted Property Review Committee (City) finding that his property
located at 32 East Third Street is blighted.1 For the following reasons, we reverse.
The subject property is a vacant, unimproved lot (Lot) adjacent to an L-
shaped commercial building at 30 East Third Street (Building),2 which is also owned

1
Although named as a party, the United States of America is precluded from filing a brief in this
matter due to its failure to comply with this Court’s October 30, 2017, order directing it to file a
brief within 14 days of the exit date of said order.
Notably, in a separate decision, City of Bethlehem v. Kanofsky, (Pa. Cmwlth., No. 1034 C.D.
2017, filed March 23, 2018), this Court affirmed the trial court’s order which granted an
application by the City, as conservator of the subject property, to sell the property to Collaboration
3, LLC. In light of that decision, the issues Kanofsky raises in the instant appeal may become
moot when and if he loses his title interest in the property.
2
The Building has been the subject of several actions in the trial court pertaining to alleged code
violations as well as appeals to this Court. See, e.g., Commonwealth v. Kanofsky, (Pa. Cmwlth.,
No. 1938 C.D. 2016, filed August 14, 2017) (involving summary criminal charges for violations
by Kanofsky. On January 20, 2017, the City notified Kanofsky that the Lot is
blighted and ordered him to eliminate the blight-causing conditions. The City’s
notice stated, in pertinent part, as follows:

1) The [Lot] is blighted within the meaning of the City
Codified Ordinance Article 149, as amended, and the
Pennsylvania Urban Redevelopment Law.[3]
2) The owner of the subject property is ordered to eliminate the
following conditions causing the blight within twenty (20) days.
a. Correct property condition so it is no longer a
public nuisance per local housing, building,
plumbing, fire and related codes.
b. Correct dilapidated, unsafe, vermin-infested
conditions at property.
c. Improve lot conditions so it is no longer a
place for accumulated trash and/or debris or for
rodents and/or vermin.
d. Pay delinquent taxes so property is no longer
a tax delinquent property.
3) Failure to eliminate the conditions stated above in #2 within
the stated period of time may render the property subject to
condemnation by the Redevelopment Authority of the [City]
under the Urban Redevelopment Law.

Reproduced Record at 34 (R.R.__).

of City’s codified ordinances relating to maintenance of Building and failure to obtain certificate
of occupancy); Kanofsky v. City of Bethlehem, (Pa. Cmwlth., No. 1503 C.D. 2016, filed May 17,
2017) (quashing appeal of blight certification for Building); Kanofsky v. City of Bethlehem, (Pa.
Cmwlth., No. 2163 C.D. 2015, filed September 28, 2016) (ordinance violations relating to
maintenance of Building and failure to obtain certificate of occupancy); City of Bethlehem v.
Kanofsky (Pa. Cmwlth., No. 181 C.D. 2017, filed November 29, 2017) (affirming appointment of
the City as conservator for the Lot and the Building).
3
Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§1701–1719.2.
2
 Kanofsky appealed to the trial court, which held a hearing on May 8,
2017. The City presented the testimony of Tony Hanna, Executive Director of the
City’s Redevelopment Authority. He described the Lot as “vacant,” “unpaved,
unfinished [, and] not code compliant to be used as a parking lot[.]” Notes of
Testimony (N.T.), 5/8/2017, at 14; R.R. 63. Hanna stated that a building that once
stood on the Lot had burned down 18 years ago and the Lot “was left in its place”
since then. N.T. 14-15; R.R. 63.
The City submitted several violation notices issued to Kanofsky dated,
respectively, July 20, 2006, October 8, 2013, October 22, 2014, and June 13, 2016,
concerning garbage, rubbish and weeds on the Lot. In response, Kanofsky submitted
pictures of the Lot, showing that he had corrected the conditions cited in the notices.
Hanna acknowledged that at the time the City issued the blight notices, all of the
weeds and rubbish had been removed from the Lot. N.T. 30; R.R. 67. The City’s
counsel then proposed that, to “streamline things, [the City] will proceed on the
blighted property solely with regard to the [unpaid] taxes.” N.T. 31; R.R. 67.
In support, the City presented the testimony of Linnea Lazarchak,
director of financial services, who oversees the collection of tax delinquencies.
Lazarchak testified that Kanofsky had not paid real estate taxes on the Lot for the
years 2015 and 2016. The City submitted a notice of nonpayment issued to
Kanofsky dated September 30, 2015, along with an annual report sent to the City’s
collection agency in January of 2016, showing that Kanofsky owed real estate taxes
on the Lot in the amount of $647.88 for 2015. The City also submitted documents
showing a $662.17 delinquency for 2016. Kanofsky acknowledged that the Lot is
vacant, and that he has not paid real estate taxes on the Lot for the years 2015 and
2016.

3
 By order of May 11, 2017, the trial court affirmed the City’s
determination that the Lot is blighted. Kanofsky appealed to this Court. 4 The trial
court issued an order directing him to file a statement of errors complained of on
appeal. See PA. R.A.P. 1925(b).5 Kanofsky filed the statement on July 5, 2017,
asserting,6 inter alia, that the Lot was neither vacant nor “overgrown with weeds,”
and there were no other ordinance violations. R.R. 52. The trial court issued an
opinion pursuant to Pa. R.A.P. 1925(a)(1)7 stating that under Section 12.1(c)(7) of
the Urban Redevelopment Law, “[a]ny unoccupied property which has been tax
delinquent for a period of two years” is a blighted property. 35 P.S. §1712.1(c)(7).8
Because Kanofsky conceded that the Lot is unoccupied and has a two-year tax
delinquency, the trial court concluded the Lot is blighted.

4
This Court’s review determines whether the trial court abused its discretion or committed an error
of law. Smucker v. Lancaster City Planning Commission, 74 A.3d 349, 352 n.8 (Pa. Cmwlth.
2013).
5
It states in pertinent part:
If the judge entering the order giving rise to the notice of appeal (“judge”) desires
clarification of the errors complained of on appeal, the judge may enter an order
directing the appellant to file of record in the trial court and serve on the judge a
concise statement of the errors complained of on appeal (“Statement”).
PA. R.A.P. 1925(b).
6
To the extent that Kanofsky’s statement of errors raises new issues not asserted before the trial
court, such issues are waived for appellate review. See Pa. R.A.P. 302(a); Commonwealth v. Ali,
10 A.3d 282, 293 (Pa. 2010).
7
Rule 1925(a)(1) states, in relevant part, as follows:
[U]pon receipt of the notice of appeal, 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,
shall forthwith file of record at least a brief opinion of the reasons for the order, or
for the rulings or other errors complained of, or shall specify in writing the place
in the record where such reasons may be found.
Pa. R.A.P. 1925(a)(1).
8
Added by the Act of June 23, 1978, P.L. 556.
4
 On appeal to this Court, Kanofsky contends that the trial court erred.
He argues that the pictures he presented during the hearing show that the Lot “was
in a decent condition, with hard packed soil and trimmed grass.” Appellant’s Brief
at 5. He maintains that he was never notified by the City of any violation “[with]
regard to the [Lot] being vacant.” Id. at 9. The City responds that it provided
sufficient evidence that the Lot is unoccupied and tax delinquent for a two-year
period; accordingly, the trial court did not err in determining that the Lot is blighted
under Section 12.1 of the Urban Redevelopment Law.
We begin with the applicable provisions of the Urban Redevelopment
Law. Under the Law, the elimination of blighted areas constitutes a proper public
purpose for which the power of eminent domain may be exercised. The Law
provides procedures for determining whether a particular area or property is blighted
and, thus, a candidate for rehabilitation. In re Condemnation by Redevelopment
Authority of Lawrence County, 962 A.2d 1257, 1260 (Pa. Cmwlth. 2008), appeal
denied, 973 A.2d 1008 (Pa. 2009).
Section 12.1(c) of the Law sets forth several criteria for determining
whether an individual property located outside a designated redevelopment area9
may be deemed blighted. Section 12.1(c) states that blighted property shall include:

***
(6) Any vacant or unimproved lot or parcel of ground in a
predominantly built-up-neighborhood, which by reason of
neglect or lack of maintenance has become a place for
accumulation of trash and debris, or a haven for rodents or other
vermin.

9
A finding that a specific property is blighted is not necessary to support a condemnation
proceeding if the property lies within a declared blighted area. In re Condemnation by Urban
Redevelopment Authority of Pittsburgh, 822 A.2d 135, 138 (Pa. Cmwlth. 2003).
5
 (7) Any unoccupied property which has been tax delinquent for
a period of two years prior to the effective date of this act, and
those in the future having a two year tax delinquency.
***

35 P.S. §1712.1(c)(6)-(7) (emphasis added). The property owner shall be “served
with notice of the determination that the property is blighted, together with an
appropriate order to eliminate the conditions causing the blight and notification that
failure to do so may render the property subject to condemnation under [the Law].”
35 P.S. §1712.1(e)(2). “The owner or his agent shall have the right of appeal from
the determination in the same manner as an appeal from the determination of public
nuisance.” Id.
After a municipality determines that a property is blighted, it must
certify the property as blighted to the redevelopment authority. Section 12.1(e) of
the Urban Redevelopment Law sets forth the procedure for doing so. It states in
pertinent part:

The blighted property review committee and the appropriate
planning commission, upon making a determination that any
property is blighted within the terms of this section, must certify
said blighted property to the Redevelopment Authority, except
that:
(1) No property shall be certified to the Redevelopment
Authority unless it is vacant. A property shall be considered
vacant if:
(i) the property is unoccupied or its occupancy has
not been authorized by the owner of the property;
(ii) in the case of an unimproved lot or parcel of
ground, a lien for the cost of demolition of any
structure located on the property remains unpaid for
a period of six months; or

6
 (iii) in the case of an unimproved lot or parcel of
ground, the property has remained in violation of
any provision of local building, property
maintenance or related codes applicable to such lots
or parcels, including licensing requirements, for a
period of six months.

35 P.S. §1712.1(e)(1) (emphasis added). Once a property is certified to the
redevelopment authority as blighted, a condemnation proceeding may begin if other
conditions under the Urban Redevelopment Law are met.
Here, the City determined, and the trial court affirmed, that the Lot is
blighted pursuant to Section 12.1(c)(7) of the Urban Redevelopment Law because it
was “unoccupied” and “tax delinquent for a period of two years.” 35 P.S.
§1712.1(c)(7). In so holding, the trial court misapplied the Law because occupancy
is not a factor in the case of an “unimproved lot or parcel.” 35 P.S. §1712.1(e)(1).
In Redevelopment Authority of City of York v. Bratic, 45 A.3d 1168 (Pa.
Cmwlth. 2012), the city’s redevelopment authority certified a building as blighted
and brought a condemnation action against the property owner. The property owner
filed preliminary objections arguing, inter alia, that the property should not have
been certified because the parking lot located behind the building was rented out
pursuant to a rental agreement; thus, the property was not vacant within the meaning
of Section 12.1(e) of the Urban Redevelopment Law. The trial court overruled the
property owner’s preliminary objections, and this Court affirmed. Interpreting
Section 12.1(e), we observed:

[Property owner’s] reliance is misplaced; there is no need to go
searching for a definition of “vacant” when it is provided in the
statute. Parts (i) through (iii) in Subsection (e)(1) of the statute
clearly differentiate between property that has a structure, such
as the commercial building located on the [property], and
properties that do not; both can fall within the definition of

7
 “vacant,” but an “unimproved lot or parcel” is addressed
separately from properties where occupancy is a factor.

Id. at 1178 (emphasis added).
In short, Section 12.1 of the Urban Redevelopment Law distinguishes
between parcels that have buildings on them and those that do not. Both can be
vacant. However, for an “unimproved lot or parcel,” occupancy is not a factor. It is
only a factor where the parcel holds a building.
Although the instant case involves a blight determination rather than a
blight certification, our interpretation of Section 12.1, as set forth in Bratic, is
nevertheless dispositive. The trial court found that the City established that the Lot
is unoccupied and has a two-year tax delinquency. In so finding, the trial court
credited the testimony of the City’s witnesses. Hanna testified that the Lot is
“vacant,” “unpaved, unfinished [, and] not code compliant to be used as a parking
lot.” N.T. 14; R.R. 63. He further testified that a building that once stood on the Lot
had burned down 18 years ago and the Lot “was left in its place” since then. N.T.
14-15; R.R. 63. In short, the testimony established that the Lot is vacant and
unimproved.
The trial court erred in deeming the Lot blighted under Section
12.1(c)(7) of the Urban Redevelopment Law. As used in Section 12.1(c)(7), the
term “unoccupied property” refers to property “that has a structure” or “where
occupancy is a factor.” Bratic, 45 A.3d at 1178. It has nothing to do with a “vacant
or unimproved lot or parcel,” which is explicitly addressed in different subsections
of the Law, i.e., Section 12.1(c)(6). Id.
The object of all construction of statutes is to ascertain and effectuate
the intention of the legislature. “It is axiomatic that in determining legislative intent,
all sections of a statute must be read together and in conjunction with each other,

8
and construed with reference to the entire statute.” Allstate Life Insurance Company
v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012) (citation omitted). Section 12.1
must be viewed in its entirety. It is unreasonable to conclude that the General
Assembly would differentiate between an unimproved lot or parcel and unoccupied
property in one subsection of a statute, only to conflate them in another.
For all of the foregoing reasons, we reverse the trial court’s decision.
_____________________________________
MARY HANNAH LEAVITT, President Judge

9
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Bethlehem :
:
v. : No. 777 C.D. 2017
:
Alvin S. Kanofsky, :
United States of America :
:
Appeal of: Alvin S. Kanofsky :

ORDER

AND NOW, this 4th day of April, 2018, it is hereby ORDERED that the
order of the Court of Common Pleas of Northampton County, dated May 11, 2017,
in the above-captioned case is hereby REVERSED.

_____________________________________
MARY HANNAH LEAVITT, President Judge