City of New Castle v. Uzamere

Dissenting Opinion by

Senior Judge KELLEY.

I respectfully dissent.

Section 2821 of the Third Class City Code (Code)1 provides, in pertinent part:

Whenever the board of health shall determine ... that a public nuisance exists or is about to exist, it may order the nuisance to be removed abated, suspended, altered, or otherwise prevented or avoided. Notice of such order, bearing the official title of the board and the number of days for compliance therewith and the alternative remedy of the board in case of non-compliance, shall be served upon the person, if any, whom the board deems responsible therefor or concerned therein, and upon the owner of the land, premises or other places whereon such a nuisance is or about to be, if any ...

53 P.S. § 37321.

In addition, Section 2324 of the Code provides, in pertinent part:

In any case where the persons ordered by the board of health to abate or prevent a public nuisance or anticipated public nuisance refuse or neglect to do so within the time specified in the original or any subsequent order of the board, then ... the board may direct its health officer and employes to execute such order; or if the execution of the said order requires ... any other work or service that may best be performed or contracted for by the agencies and employes of the city itself, then the board shall certify its order to the city council and council shall thereupon proceed to cause the execution of the order. In any case where the board of health or the council thus abates or prevents or causes the abatement or prevention of a public nuisance, the cost and expense of such work, services and materials shall be charged to the persons affected in their proper proportions; and upon nonpayment of such charges, the city may file a lien therefore upon the affected premises in the name of and for the use of the city, as provided by law for municipal claims, in addition to the other remedies available for the collection of debts due the city ...

53 P.S. § 37324.

In addition, Section 2403 of the Code provides, in pertinent part:

In addition to other powers granted by this act, the council of each city shall have power, by ordinance:
*77416. Nuisances and obstructions.— To prohibit nuisances ... and to require the removal of any nuisance or dangerous structure from public or private places upon notice to the owner, and, upon his default, to cause such removal and collect the cost thereof, together with a penalty of ten percentum of such cost, from the owner, by an action in assumpsit. The cost of removal and the penalty may be entered as a lien against such property in accordance with existing provisions of law. In the exercise of the powers herein conferred, the city may institute proceedings in courts of equity.

58 P.S. 37403(16).2

Thus, with respect to notice regarding the abatement of a nuisance, the foregoing provisions of the Code make an explicit distinction between the person deemed to be responsible for the property in question and the owner of the property. In addition, with respect to the non-payment of the costs of abatement, the foregoing provisions specifically provide that the City may either pursue the claim in rem by entering a lien against the property, or in personam by pursuing an action in as-sumpsit against the owner of the property.

In addition, Section 1 of the Municipal Claims and Tax Liens Act (Act)3,4 defines the term “municipal claim”, in pertinent part, as “[t]he claim filed to recover.... For the removal of nuisances ...” 53 P.S. § 7101. Although the term “owner” is not defined in the Code, Section 1 of the Act defines the term “owner”, in pertinent part, as “[t]he person or persons in whose name the property is registered, if registered according to law5, and, in all other *775cases, means any person or persons in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, if any, or the reputed owner or owners thereof in the neighborhood of such property.” Id.

The record in this matter shows that the fictitious name of Des-Maraf Co. was registered with the Commonwealth of Pennsylvania by a Delaware corporation called National Infodata Corporation. The application for registration of the fictitious name Des-Maraf Co. was signed by Uzam-ere as the authorized agent. The record further shows that the deed to the subject property was issued to the fictitious name of Des-Maraf Co. While it is true that Uzamere signed various documents as an agent of Des-Maraf Co., there is nothing in the record to indicate that Uzamere was doing business as or trading as Des Maraf Co. or National Infodata Corporation. Thus, any claim for the non-payment of the costs of abating the nuisance could only take the form of either a lien against the property or an action in assumpsit against the record owner of the property, and not Uzamere.

In addition, I believe that the agency aspects of the BOCA Code, as contained in the City’s Ordinance, go only to notice of infractions of the BOCA Code, consistent with the provisions of Section 2821 of the Code. Thus, the foregoing agency provisions cannot be used to initiate an action in assumpsit to reclaim the costs of abating the nuisance on property which is titled in a corporation’s name, albeit through a fictitious name. I do not believe that Uzamere can be held responsible, as an owner, for the costs of abating the nuisance on the subject property. Moreover, the provisions of the City’s Ordinance imposing personal liability on Uzamere for the costs of abatement are void to the extent that they conflict with the relevant provisions of the Code and the Act.6

Accordingly, unlike the Majority, I would reverse the trial court’s order on the basis that Uzamere is not personally responsible for the costs of demolishing the residential structure located on Des-Maraf Co.’s property.

. Act of June 23, 1931, P.L. 932, as amended, 53 P.S. §§ 35101-39701.

.See also Section 4140 of the Code, 53 P.S. § 39140, which provides, in pertinent part:

The council of any city may, by resolution, authorize and empower the mayor of such city to present a petition to the court of common pleas, setting forth that any property, building [or] premises ... located within said city has become a public nuisance, injurious or dangerous to the community and to the public health. Upon the presentation and hearing of such petition, if the nuisance complained of be not a public nuisance, per se, then the court may appoint three viewers, from the county board of viewers, to go upon the premises where said nuisance is alleged to exist — at a time to be fixed in the order appointing the same, of which time due notice shall be given to all persons affected ... and shall thereupon, being first duly sworn, view the property, premises [or] building ... shall hear the parties, their witnesses and counsel, and shall make due report thereof to the court appointing them ...

In addition, Section 4143 of the Code, 53 P.S. § 39143, provides, in pertinent part:

Whenever the award of viewers, or the verdict of a jury, shall find that a public nuisance exists, and the owner or owners of any property, premises [or] building ...
shall fail to abate the same within sixty days from the date of the judgment, the authorities of said city shall have full power and authority to enter upon said property, premises or building where said nuisance exists and abate the same, and shall not be liable in any form of action for so doing. The cost and expense of abating the same shall be deducted from any compensation awarded in said proceedings.

. Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§ 7101-7505.

. As both the Code and the Act apply to the pursuit and enforcement of municipal claims, they must be read and construed in pari mate-ria. See Section 1932 of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1932 ("[Sjtatutes or parts of statutes are in pari materia when they relate to the same persons or thing or to the same class of persons or things ... Statutes in pari materia shall be construed together, if possible, as one statute.”).

. Where a deed registry is not required by law, the record owner is the "owner” for the purposes of satisfying the requirements of the Act setting forth the procedures to be used to *775collect municipal claims. In re Tax Claim Bureau, German Township, Mt. Sterling, 54½ Acres Miscellaneous Buildings, 64 Pa.Cmwlth. 374, 439 A.2d 1349 (Pa.Cmwlth.1982); Borough of Towanda v. Brannaka, 61 Pa.Cmwlth. 622, 434 A.2d 889 (1981).

. It must be noted that the City of New Castle is organized as an Optional Charter City of the Third Class pursuant to the provisions of the Optional Third Class City Charter Law, Act of July 15, 1957, P.L. 901, as amended, 53 P.S. §§ 41101-45000. See 115 Pennsylvania Manual 6-57 (2001-2002). Nonetheless, the provisions of the City's Ordinance are void to the extent that they conflict with the provisions of the Code and the Act, statutes concerning substantive matters of statewide concern. See, e.g., Devlin v. City of Philadelphia, 809 A.2d 980 (Pa.Cmwlth.2002).