Submitted: October 14, 2016
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE JULIA K.
HEARTHWAY, Judge HONORABLE JOSEPH M. COSGROVE, Judge
Cannarozzo (Landlord) asks whether the Court of Common Pleas
of Luzerne County (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
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.
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. N.T. I at 13-22, 29-36; R.R. at
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.
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.
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. N.T. II at 3-5, 7, 21-29;
R.R. at 78a, 79a, 82a-84a. Landlord appealed to this Court.
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.
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.
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.
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 ...