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ROBERT T. WOOD v. CITY PITTSBURGH (05/25/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 25, 1983.

ROBERT T. WOOD, APPELLANT
v.
CITY OF PITTSBURGH, A MUNICIPAL CORPORATION AND PAUL J. IMHOFF, SUPERINTENDENT OF BUREAU OF BUILDING INSPECTION, APPELLEES

Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of City of Pittsburgh, a municipal corporation, Paul J. Imhoff, Superintendent of Bureau of Building Inspection v. Robert T. Wood, No. GD 81-02112.

COUNSEL

Robert T. Wood, appellant, for himself.

Kathryn E. Hanna Katsafanas, Assistant City Solicitor, with her D. R. Pellegrini, City Solicitor, for appellees.

Judges Rogers, Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 74 Pa. Commw. Page 451]

Robert T. Wood (appellant) appeals from an order of the Court of Common Pleas of Allegheny County granting the City of Pittsburgh's (city) request for a preliminary injunction restraining appellant from occupying or using his apartment building*fn1 in violation of the city's Building Code requirement that

[ 74 Pa. Commw. Page 452]

    buildings of appellant's type have two means of egress from each story.*fn2

On January 1981, the city filed a Complaint in Equity requesting preliminary and permanent injunctions enjoining appellant from occupying, altering or using the subject property in violation of the Building Code. By preliminary objections, appellant alleged selective enforcement and harassment by the city, and asserted that the Building Code provisions should not be applied retroactively to appellant's property which was constructed prior to the enactment and effective date of the Code. Appellant failed to specifically deny the city's averment that his building had only one means of egress.

On April 13, 1981, a preliminary injunction hearing was held at which counsel for the city and appellant, representing himself, attended. Without taking testimony and upon consideration of the complaint, preliminary objections and oral arguments the court

[ 74 Pa. Commw. Page 453]

    found appellant to be in violation of the Building Code for failing to provide a second means of egress, and ordered appellant to install a second exit within thirty days of the entry of the order or vacate the top floor.*fn3

In raising a plethora of questions,*fn4 appellant properly raises two issues for our consideration. First, appellant contends that the city may not retroactively apply the minimum egress provisions of the Building Code to buildings constructed prior to the Code's effective

[ 74 Pa. Commw. Page 454]

    date; and, second, that the city engaged in selective enforcement of the Building Code.*fn5

In an appeal from a granting of a preliminary injunction our scope of review is

     narrowly limited to a determination, following examination of the record, of whether there are any apparently reasonable grounds to support the order of the court below. . . . Unless it is clear that no reasonable grounds existed or that the rules of law relied upon are palpably wrong or clearly unapplicable, the merits of the case or the reason for or against the lower court's action cannot be considered. . . . [W]e may inquire only as to whether the court below committed a manifest abuse of discretion. . . .

Valley Center, Inc. v. Parkhouse, 62 Pa. Commonwealth Ct. 453, 455, 437 A.2d 74, 75 (1981) (citations omitted) (quoting Committee of Seventy v. Albert, 33 Pa. Commonwealth Ct. 44, 49, 381 A.2d 188, 190 (1977)).

Appellant primarily contends that the application of Building Code provisions to his property contravenes Article I, Section 9 of the United States Constitution which forbids ex post facto laws. In Kastner v. PennDOT, 46 Pa. Commonwealth Ct. 97, 99, 405 A.2d 1133, 1134 (1979) we stated that

[ 74 Pa. Commw. Page 455]

    the term "ex post facto" as used in the Constitutions of the United States and Pennsylvania applies only to penal statutes and "may be defined as [a law] which imposes a punishment for an act which was not punishable when it was committed, imposes additional punishment or changes the rules of evidence by which less or different testimony is sufficient to convict. . . ." (Emphasis in original.)

Myers v. Lohr, 72 Pa. Superior Ct. 472, 474 (1919). Since the case sub judice does not involve the imposition of penal sanctions, the constitutional prohibition of ex post facto laws is not applicable. See, Padgett v. Stein, 406 F. Supp. 287, 299-301 (M.D. Pa. 1975) (not an impermissible retroactive application of law to require that a building erected prior to the effective date of the Fire and Panic Act*fn6 be brought into compliance with the regulations promulgated thereunder).

Appellant next claims that the city engaged in selective enforcement of the Building Code. No evidence showing discriminatory enforcement by the city of its Building Code provisions was adduced at the hearing by appellant. Thus, appellant's claim, being a mere assertion, is without merit.

The Court's order is hereby affirmed.

Order

And Now, this 25th day of May, 1983, the order of the Court of Common Pleas of Allegheny County, dated April 15, 1981, granting preliminary injunctive relief to the City of Pittsburgh and Paul J. Imhoff against Robert T. Wood is hereby affirmed.

Disposition

Affirmed.


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