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West Pittston Borough v. LIW Invs., Inc.

Commonwealth Court of Pennsylvania

June 19, 2015

West Pittston Borough
v.
LIW Investments, Inc.; Appeal of: Glenn Keller

Submitted April 24, 2015

For Glenn Keller, Appellant: Anthony Roberti, Roberti & Roberti, L.L.C., Jim Thorpe, PA.

For LIW Investments, Inc., Appellee: Joseph J. Terrana, Terrana Law, P.C., Kingston, PA.

For West Pittston Borough, Appellee: Mark William Bufalino, Elliott Greenleaf & Dean, Wilkes-Barre, PA.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 416

ANNE E. COVEY, J.

Glenn Keller (Keller) appeals from the Luzerne County Common Pleas Court's (trial court) October 3, 2014 order directing Keller's incarceration due to LIW Investments, Inc.'s (LIW) failure to comply with the trial court's orders. Essentially, the issue for this Court's review is whether the trial court erred by sanctioning Keller for LIW's contempt.

LIW, a Pennsylvania corporation, owns the real property located at 504 Wyoming Avenue in West Pittston Borough (Borough), Pennsylvania, upon which the left half of a residential duplex is situated (Property). By March 22, 2013 notice (First Notice) sent to LIW's corporate office in Wilmington, Delaware, the Borough's Code and Zoning Enforcement Officer Bill O'Donnell (O'Donnell) notified LIW that he inspected the Property due to complaints and discovered numerous significant code violations creating fire and health hazards that LIW must address.[1] The violations included leaking water and fuel oil, mold on the floor and walls, unsound front and rear porch structures, trash and odor. The First Notice also informed LIW that copper piping had been stolen from the Property on March 20, 2013 for which a police report was made. The First Notice warned LIW that its failure to contact O'Donnell within ten business days would result in a citation. LIW did not respond.

Page 417

In an April 9, 2013 notice (Second Notice) addressed to LIW and its President, Keller, at LIW's Mount Pocono, Pennsylvania office, O'Donnell stated that the Property had been posted " UNFIT FOR HUMAN HABITATION." [2] Reproduced Record (R.R.) at 18a-19a. In addition to the previously-listed violations, O'Donnell referenced dead animals in the house. The Second Notice warned that LIW's continued failure to respond would result in a citation. LIW did not respond.

On May 10, 2013, the Borough filed a Complaint with the trial court alleging that LIW allowed the Property to be " deteriorated[,] . . . in disrepair, unsafe, unsanitary and a hazard to neighboring properties and the general public." R.R. at 6a. The Borough sought judgment against LIW for the Borough's costs of " declaring the structure located on the [Property] to be a nuisance and in violation of the [Borough's ordinances] and the laws of this Commonwealth, abating and removing any dangerous conditions and any demolition expenses together with a [10%] penalty[.]" R.R. at 8a. LIW did not answer the Complaint.

On June 18, 2013, the Borough filed a motion for preliminary injunction to compel LIW to abate the Property's hazards and properly maintain it. On October 25, 2013, at the preliminary injunction argument, Joseph Terrana, Esquire (Terrana) informed the trial court that notwithstanding the Department of State's records that Keller was LIW's president, LIW was defunct and he represented Keller personally. Terrana nevertheless stipulated to receipt of the Second Notice on behalf of LIW and Keller. See Supplemental Reproduced Record (S.R.R.) at 11b-12b. O'Donnell testified regarding the Property's condition and presented photographs and the Borough's costs of securing the residence, cutting the grass and maintaining the Property's sidewalks from September 25, 2012 to July 31, 2013. The trial court instructed the parties to prioritize the Property's needs and establish timeframes for the work to be completed upon which the trial court could fashion an order. Keller assured the trial court that LIW would not transfer the Property in the meantime. See S.R.R. at 15b. Keller also advised the trial court that he would meet with Borough representatives at the Property at 8:00 a.m. the following Monday. See S.R.R. at 8b, 15b.

On December 27, 2013, the trial court issued a preliminary injunction ordering LIW by January 31, 2014 to remove garbage, debris, animal carcasses and other hazardous and unsanitary contents from the Property, and to replace or board up portions of the Property exposed to the outdoors.[3] Further, LIW was required to supply the Borough with a professional mold assessment and recommendation report. The December 27, 2013 order prohibited LIW from transferring the Property, and authorized the Borough to enter and inspect the property on January 31, 2014 and February 28, 2014.

On February 6, 2014, the Borough filed a motion for contempt, sanctions and issuance of a bench warrant because LIW failed to comply with the December 27, 2013 order. The trial court held a hearing on March 24, 2014. O'Donnell testified at the hearing that he conducted the January 31, 2014 inspection; however, the Borough did not receive a mold assessment and,

Page 418

when he arrived to conduct his February 28, 2014 inspection, the Property was locked. He explained that he could tell by looking from the outside that the soffits had been enclosed and that the carcasses and some of the debris had been removed, but not all of the work LIW was ordered to perform had been completed.[4] The trial court queried:

The interesting question here is if the Court makes the rule absolute and extends the time frame for performance, . . . does this Court have authority to hold an officer of the corporation in contempt without notice as to whether or not that corporation, which is really the party here, has the financial wherewithal to bring about compliance with the order of the Court.

S.R.R. at 23b. Terrana argued that LIW did not have liquid assets and that the trial court did not have the authority to jail Keller for LIW's failure to obey the trial court's December 27, 2013 order. The trial court issued an order on March 25, 2014 which made its December 27, 2013 order absolute, deemed LIW in contempt thereof and gave LIW 60 days to comply or suffer sanctions.[5]

On May 30, 2014, the Borough filed a motion for sanctions and issuance of a bench warrant. The trial court held a hearing on June 17, 2014, during which the Borough represented that there had not been any substantial changes at the Property, and that LIW still had not provided a mold assessment and recommendation. The trial court requested proof of LIW's financial status in order to assess LIW's ability to comply with the trial court's December 27, 2013 order.

Terrana represented that Keller was no longer LIW's president. He argued that Jose Luis Ciriaco (Ciriaco) became LIW's president as of April 1, 2014.[6] Purportedly, by April 1, 2014 notarized Resolution to Resign, Keller placed Ciriaco on notice that Keller would no longer serve as LIW's president, " [d]ue to personal conflicts between us." R.R. at 29a.[7] However, the only proof of that averment was a Department of State print-out dated January 29, 2015 listing Ciriaco as LIW's president. See R.R. at 30a. The Resolution to Resign was not admitted into evidence before the trial court.

The trial court stated that since Keller attended the hearing and was listed with the Department of State as LIW's president, either he or someone now acting on LIW's behalf must provide proof of LIW's viability. The trial ...


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