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NEWTON M. SAMUELS v. CITY BEAVER FALLS (05/21/84)

decided: May 21, 1984.

NEWTON M. SAMUELS, APPELLANT
v.
CITY OF BEAVER FALLS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Beaver County in the case of Newton M. Samuels v. City of Beaver Falls, No. 2563 of 1981.

COUNSEL

Timothy Finn, for appellant.

Edward S. Young, for appellee.

Judges Rogers, Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.

Author: Barbieri

[ 82 Pa. Commw. Page 499]

Newton M. Samuels (Appellant) appeals here from an order of the Court of Common Pleas of Beaver County directing him to make certain repairs to a building he owns at 919 Seventh Avenue in the City of Beaver Falls (City), Pennsylvania, and to demolish two buildings he owns at 218 and 220 Short Tenth Street in the City. We reverse in part and remand.

Following an inspection of Appellant's Seventh Avenue building on March 31, 1981, the City's Building Inspector and Code Enforcement Officer sent a notice to Appellant informing him provisions of the so-called BOCA Building Code (BOCA Code) adopted by reference by City Ordinance No. 1420, that the building was an unsafe structure within the intendment of Section 124.1 of the BOCA Code, and that it would have to be repaired or demolished within thirty days. Following an inspection of Appellant's Short Tenth Street buildings on June 4, 1981, a similar notice was sent to Appellant informing him that his Short Tenth Street buildings were unsafe structures within the intendment of Section 124.1 of the BOCA Code. Both notices further indicated that Appellant could appeal these determinations to the City Council "sitting as the Board of Appeals" (Board) within ten days.

Appellant subsequently filed such an appeal from each notice and following two days of hearings the Board (1) apparently issued an order dated July 14, 1981, not in the record before us, pertaining to Appellant's Seventh Avenue building, and (2) an order dated July 30, 1981 directing Appellant to repair or demolish his Short Tenth Street buildings within thirty days. On October 13, 1981, more than thirty days after the date of issuance of these orders, the Board conducted a new hearing which only addressed the question of whether Appellant had complied with the

[ 82 Pa. Commw. Page 500]

Board's July 30, 1981 order, and concluding that he had not, the Board ordered the City's "Health and Code Enforcement Officer[,]" in an order dated October 27, 1981, to demolish and remove Appellant's Short Tenth Street buildings. Shortly thereafter, Appellant filed a Petition To Appeal Code Enforcement Order with the common pleas court seeking (1) appellate review of the Board's July 14, July 30, and October 27, 1981 orders, and (2) a supersedeas. In an order dated November 23, 1981, the court "granted" the petition and issued a rule to show cause why a supersedeas should not be issued. The City subsequently filed an answer to Appellant's petition, but this document did not address itself to the supersedeas issue, no hearing was ever held on this issue, and no supersedeas was ever granted.

Thereafter, both Appellant and the City filed a motion, without explanation, requesting a hearing de novo, and at the subsequent hearing on the appeal the court, without explanation, proceeded with such a hearing. After evaluating the evidence adduced at this hearing, pertaining to the condition of Appellant's Seventh Avenue and Short Tenth Street buildings, the court issued an order directing Appellant, inter alia, to make certain repairs to his Seventh Avenue building by June 15, 1982, and to demolish his Short Tenth Street buildings by June 30, 1982. Appellant then filed an appeal from this order, and the common pleas court, pursuant to Pa. R.A.P. 1925, filed a Memorandum Opinion in support of its order. In this opinion, the court made findings of fact and concluded, inter alia, (1) that Appellant's buildings were "unsafe structures" within the intendment of Section 124.1 of the BOCA Code, and (2) that it had the authority to conduct a hearing de novo since Section 4133 of The Third Class City Code (Code), Act of June 23, 1931, P.C. 932, as amended, 53 P.S. § 39133, authorized

[ 82 Pa. Commw. Page 501]

    the City to "bring actions at law or equity to . . . correct . . . any violation ...


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