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Commonwealth v. Cannarozzo

Commonwealth Court of Pennsylvania

March 1, 2017

Commonwealth of Pennsylvania
George Cannarozzo, Appellant

          Submitted: October 14, 2016



          ROBERT SIMPSON, Judge.

         George Cannarozzo (Landlord) asks whether the Court of Common Pleas of Luzerne County[1] (trial court) erred in entering a guilty verdict after trial on summary appeal on 10 of 11 citations issued for violations of the 2012 International Property Maintenance Code (IPMC), adopted by Ordinance Number 7 of 2007 (Ordinance) of West Hazleton Borough (Borough). Landlord contends the Borough violated his constitutional and statutory rights by entering his property without his consent and without a warrant. He also asserts the trial court erred in determining he failed to correct the Ordinance violations to the extent necessary. Discerning no error below, we affirm.

         I. Background

         Landlord owns the property located at 10-12 East Oak Street in West Hazelton (property), which is improved with a five-unit apartment building. The Borough's Code Enforcement Officer (Code Enforcement Officer) first became aware of violations at the property when contacted by the mother of a tenant who was moving out. Tr. Ct. Hr'g, Notes of Testimony, 1/27/16 (N.T. I), at 5; Reproduced Record (R.R.) at 9a. The Code Enforcement Officer subsequently visited and inspected the subject property. N.T. I at 5-6; R.R. at 9a-10a. One of Landlord's tenants allowed the Code Enforcement Officer entry into the property. Id. Upon inspection, the Code Enforcement Officer "jot[ted] down everything that was found, " and she took pictures. Id.

         Thereafter, the Code Enforcement Officer issued notices of violation to Landlord by certified and regular mail. The post office returned the certified mail items as undeliverable. N.T. I at 11; R.R. at 11a. The notices of violation described 11 violations the Code Enforcement Officer observed when she inspected the property.[2] N.T. I at 13-22, 29-36; R.R. at 11a-14a, 15a-17a.

         The issuing authority found Landlord guilty on each of the 11 violations. See R.R. at 1a (docket entry). Thereafter, Landlord appealed to the trial court.

         After presentation of the Borough's evidence at the first trial court hearing (First Hearing), the trial court allowed the parties time to resolve the matters by permitting Landlord to make repairs and show compliance through a follow-up inspection by the Code Enforcement Officer. N.T. I at 36-37; R.R. at 17a. At that time, the parties agreed to a follow-up inspection on February 3, 2016. Tr. Ct. Hr'g, Notes of Testimony, 4/6/16 (N.T. II), at 3-5, 7, 21; R.R. at 78a, 79a, 82a. As a result, at the end of the First Hearing, the trial court held the record open and retained jurisdiction. N.T. I at 36-37; R.R. at 17a.

         At the request of the parties, the trial court reconvened in April 2016 (Second Hearing). At the Second Hearing, the trial court questioned Landlord as to why he never appeared for the agreed-upon re-inspection. Landlord asserted he was unaware of the appointment scheduled for February 3, 2016. Landlord asked for another appointment to allow inspection. The trial court denied that request. Ultimately, the trial court concluded the Borough established Landlord violated the Ordinance on 10 of the charges, and it fined him $200 plus costs on each of the 10 violations.[3] N.T. II at 3-5, 7, 21-29; R.R. at 78a, 79a, 82a-84a. Landlord appealed to this Court.

         Thereafter, the trial court issued an order requiring Landlord to file a concise statement of the errors complained of on appeal pursuant to Pa. R.A.P. 1925(b) (1925(b) Statement). In his 1925(b) Statement, Landlord claimed a constitutional violation when the Code Enforcement Officer entered the property without his consent and without a warrant. Landlord also asserted he corrected the violations to the extent necessary, and the trial court erred to the extent that it found to the contrary.[4]

         In its subsequent opinion pursuant to Rule 1925(a), the trial court concluded that Landlord did not ask the court to make a ruling on whether the Code Enforcement Officer's initial entry was unlawful; therefore, the issue was waived. The trial court also observed the issue "could have been addressed had [Landlord] filed a suppression motion. His failure to do so also results in waiver." Tr. Ct., Slip Op., 6/30/16, at 2.

         The trial court further quoted Section 104.3 of the IPMC, entitled "Right of Entry." That Section provides that when a code official has reasonable cause to believe that a structure contains a condition that violates the IPMC, the code official may go to the structure and request entry from an occupant. The trial court determined that the Code Enforcement Officer became aware of violations at the property and was allowed to enter the property by a tenant. Id. The trial court concluded this course of action complied with Section 104.3 of the IPMC. Id.

         In response to Landlord's second assignment of error, the trial court explained that the parties agreed upon a meeting at the property on February 3, 2016, to give Landlord the opportunity to demonstrate that the alleged violations had been remedied. However, Landlord failed to appear for that meeting, so there was no way for the Code Enforcement Officer to determine if compliance had occurred. The only credible evidence before the court was of Landlord's ...

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