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07/01/97 COMMONWEALTH PENNSYLVANIA v. PATSY AND

July 1, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
PATSY AND CARLO BORRIELLO, APPELLANTS



Appealed From No. 158 of 1996 and 2160 of 1995. Common Pleas Court of the County of Washington. Judge EMERY.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Senior Judge Narick.

The opinion of the court was delivered by: Narick

OPINION BY

SENIOR JUDGE NARICK

FILED: July 1, 1997

This appeal presents the issues of: 1) whether conviction for twenty-six (26) violations of a local building code ordinance violated the owner's due process rights; and 2) whether the court erred in its application of the local building code ordinance to an unsafe building.

Patsy and Carlo Borriello (Borriellos) appeal from the order of the Court of Common Pleas of Washington County (trial court), which found them guilty of twenty-six (26) summary violations of Donora Borough (Borough) Ordinance No. 1244 *fn1 (Ordinance 1244) for failure to comply with the BOCA Code *fn2 (BOCA Code) as adopted by that Ordinance. We reverse.

Borriellos own a vacant, old dilapidated movie theater located in the Borough's downtown business district. The Borough inspected the structure and found it to be both unsafe and unsanitary under Ordinance 1244. In November 1993, the Borough took action by sending the Borriellos a letter titled "Notice of Property Condemnation," identifying the property and the unsafe conditions, and ordering that no persons be permitted to enter the building. It further advised them of their right to appeal the Borough decision to the Code Enforcement Board of Appeals (Board) and warned that failure to act on the matter could result in further orders from the Borough, specifically orders to demolish the structure.

Borriellos did not respond or attempt repairs, and the Borough issued twenty-six (26) separate citations charging violation of Ordinance 1244 - Condemnation under various subsections, including BOCA subsections ES-106.1.1, ES-110.1, ES111.1, and ES-300.3. While the citations generally referred to the owner's refusal to remove the dilapidated structure, only two mentioned that the roof had collapsed and that the building was a safety hazard.

Borriellos appealed to the district Justice and then to the trial court. After a de novo hearing, the trial court found the Borriellos guilty of twenty-six (26) violations of Ordinance 1244 for failing to comply with the BOCA Code Sections 302, 303 and 801 and imposed fines of $300 plus costs for each summary offense with the provision that the fine would be reduced by 75 percent if the owners raze or repair the structure within thirty (30) days. The Borriellos appeal. *fn3

Borriellos cite Commonwealth v. Cook, 226 Pa. Super. 273, 308 A.2d 151 (1973), for the proposition that, because they are penal in nature and deny trial by jury, summary proceedings must be strictly construed and argue that their due process rights were violated because the Borough did not give proper notice or properly charge the BOCA Code sections upon which the trial court decision was ultimately based. The trial court erred in finding Borriellos guilty of Sections 302, 303 and 801 of the BOCA Code, when the Borough did not charge Borriellos or introduce any evidence regarding violations of Section 302, 303 and 801 of the BOCA Code. We agree.

The right to formal notice of charges in a criminal proceeding is guaranteed by the Sixth Amendment to the United States Constitution and is so basic to the fairness of subsequent proceedings that it cannot be waived even if the defendant voluntarily submits to jurisdiction of the court, Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). Formal accusation and specific charge enables a defendant to properly defend and protect himself from further prosecution of the same offense, and enables the court to determine the sufficiency of the prosecution's case to support a conviction. Id.

Consequently, it is well established that the essential elements of a summary offense must be set forth in the citation so that the defendant has fair notice of the nature of the unlawful act for which he is charged, Commonwealth v. Feineigle, 690 A.2d 748 (Pa. Commw. 1997), and that when a citation contains defects, the court must look to the state rules of criminal procedure for the consequences of that defect, Commonwealth v. Neitzel, 451 Pa. Super. 1, 678 A.2d 369 (1996).

The procedures promulgated by the Supreme Court in Chapter 50 of the Pennsylvania Rules of Criminal Procedure prescribe procedure in all summary cases, *fn4 and are designed to recognize the importance of prompt notice that a summary offense is being alleged, while also taking account of the ...


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