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Philadelphia v. DY Properties, LLC

Commonwealth Court of Pennsylvania

December 12, 2019

City of Philadelphia
DY Properties, LLC, Appellant

          Argued: November 12, 2019



          ANNE E. COVEY, JUDGE

         DY Properties, LLC (DY) appeals from the Philadelphia County Common Pleas Court's (trial court) December 20, 2018 order issuing a stop work order, granting a final injunction and imposing a statutory fine for violations of The Philadelphia (City) Code (Code). There are four issues for this Court's review: (1) whether DY waived constitutional and evidentiary arguments by failing to appear before the trial court and present arguments; (2) whether the fine was excessive in violation of the United States and Pennsylvania Constitutions; (3) whether the trial court abused its discretion by imposing the fine; and (4) whether the trial court's opinion reflects bias or partiality. After review, we affirm.

         In July 2017, DY purchased the property located at 3325 North 9th Street in the City (Property) at sheriff's sale. On April 13, 2018, the City's Department of Licenses and Inspections (Department) inspector Martin Raudenbush (Raudenbush) inspected the Property and identified Code violations that included: DY's lack of a vacant property license;[1] combustible waste accumulation on the exterior of the building; combustible debris accumulation in the building's interior; an inoperable sprinkler system; lack of certification evidencing that the fire suppression system was tested and in good working order; and missing downspouts. On April 17, 2018, the Department issued an Initial Notice of Violation and Order, case number 629052 (April Violation Notice), listing the aforementioned violations and directing that they be corrected.[2] DY did not appeal from the April Violation Notice.

         On May 24, 2018, Raudenbush reinspected the Property and, on May 28, 2018, issued a final warning (Final Warning) to DY because the violations had not been corrected. Raudenbush also discovered that the Property was now occupied by an auto repair shop. Raudenbush reinspected the Property on May 26, 2018, and issued a second final warning as it remained in violation of the Code, case number 636058 (May Violation Notice), [3] for DY's failure to obtain a use registration permit and a certificate of occupancy for the auto repair shop. Raudenbush also delivered a Notice of Intent to Cease Operations and Order (Notice of Intent) unless the violations were corrected by July 3, 2018. DY did not appeal from the May Violation Notice and did not respond to the Notice of Intent. On July 3, 2018, the Department issued a cease operations order (Cease Operations Order) and posted it on the Property. On July 17, 2018, Raudenbush conducted a follow-up inspection of the Property to determine whether DY complied with the Cease Operations Order. Raudenbush observed that the loading dock door was open, and individuals were performing automobile tire changes and wheel work. Raudenbush posted another Cease Operations Order notice.

         On August 22, 2018, the City filed a complaint with a proposed rule to show cause and proposed order of a permanent injunction (Complaint) in the trial court seeking an order directing DY to correct all violations[4] and imposing fines for past and ongoing violations and statutory reinspection fees.[5] On October 11, 2018, the trial court held a hearing, at which DY's owner Yoret Meir, also known as Yosef Meir (Meir), appeared and accepted service on DY's behalf. The trial court continued the hearing until December 20, 2018, and a new hearing notice was issued to the parties. DY did not file an answer to the Complaint.

         On December 20, 2018, the trial court held the scheduled injunction hearing. However, neither Meir nor any other DY representative appeared. DY's tenant, Nicholas Adeleye (Adeleye) attempted to participate in the hearing; however, upon the City's objection, the court informed Adeleye that he did not have standing to do so. Thereafter, the City presented Raudenbush's testimony regarding his inspections of the Property and the violations he observed. He also described that, on November 21, 2018, long after the Cease Operations Order had been posted, while performing an inspection next door to the Property, Raudenbush again observed individuals performing tire changes at the Property. He required all individuals to vacate the Property. Finally, Raudenbush testified that the violations had not been corrected; specifically, DY had not obtained a certificate of occupancy, the combustible material had not been removed from the Property, and the sprinkler system was not operational.

         The City asked the trial court to order that the violations be corrected and that the Property remain vacant until DY complied. The City also requested fines totaling $243, 200.00. The City explained that, of the total fine, $133, 000.00 represented the $150.00 daily fine for each of the five violations[6] referenced in the April Violation Notice for 75 days, plus a fine of $1, 000.00 per day for violating Section F-915.1 of the Code[7] (pertaining to testing and certification of the fire suppression system). The remaining $110, 200.00 of the fine consisted of a $2, 000.00 per day fine for DY's ongoing failure to obtain a certificate of occupancy as the May Violation Notice mandated.[8] Because DY did not attend the hearing, it did not challenge the City's calculations, claim that the City's request was excessive, or otherwise oppose the fine. By December 20, 2018 order, the trial court granted the City's requested relief.

         On January 9, 2019, counsel for DY entered his appearance and filed a motion for reconsideration (Reconsideration Motion), wherein DY averred, inter alia, that: Raudenbush inspected the Property on December 19, 2018; Raudenbush saw the permits issued for the electrical work (issued October 12, 2018) and fire suppression system (issued December 18, 2018), and informed Adeleye that he would request a continuance of the December 20, 2018 hearing; the City did not request the continuance; and DY did not attend the hearing because the hearing was to be continued. DY also argued that the fine was excessive. DY attached copies of the permits and Adeleye's affidavit describing the inspector's representation as exhibits to the Reconsideration Motion. The City asserted in its response to the

         Reconsideration Motion (Response) that the permits were not in evidence, and denied that Raudenbush told Adeleye the hearing would be continued, that the City would request a continuance, or otherwise stated that DY should not attend the hearing. The City attached Raudenbush's affidavit to its Response.

         On January 22, 2018, the trial court held a hearing on the Reconsideration Motion, at which both Adeleye and Raudenbush testified.[9]Thereafter, the trial court denied the Reconsideration Motion from the bench. DY appealed to this Court.[10]

         Before addressing DY's arguments on appeal, this Court must consider the City's contention that DY waived all issues by failing to appear and raise them at the December 20, 2018 trial court hearing.[11]

          "'[T]o preserve an issue for appeal, a litigant must make a timely, specific objection at trial and must raise the issue on post-trial motions.' Issues not preserved for appellate review cannot be considered by this Court, even if the alleged error involves 'a basic or fundamental error.'" Mun. Auth. of the Borough of Midland v. Ohioville Borough Mun. Auth., 108 A.3d 132, 136-37 (Pa. Cmwlth. 2015) (original emphasis omitted) (quoting Dennis v. Se. Pa. Transp. Auth., 833 A.2d 348, 352 (Pa. Cmwlth. 2003)). Failure to appear at a hearing may result in a waiver of all arguments for appeal. See City of Phila. v. Frempong, 762 A.2d 395, 397 (Pa. Cmwlth. 2000) (Where appellants failed to attend the hearing, the trial court issued a permanent injunction directing the removal of a commercial truck from a residential property. On appeal, this Court affirmed concluding that "[a]ppellants' failure to attend the hearing and raise issues that could be heard on appeal is fatal to their claim."). Specifically, the Pennsylvania Supreme Court has found an excessive fines challenge is waived where the issue was not raised before an administrative tribunal. See HIKO Energy, LLC v. Pa. Pub. Util. Comm'n, 209 A.3d 246 (Pa. 2019). This Court has also previously found waiver of excessive fine allegations where such allegations were not raised before the trial court. See Commonwealth v. Dennis (Pa. Cmwlth., No. 1873 C.D. 2013, filed October 9, 2014); see also In re: 1448 W. Loudon St. (Pa. Cmwlth., No. 201 C.D. 2012, filed August 19, 2013); Commonwealth v. 928 W. Lindley Ave, Phila., Pa. (Pa. Cmwlth., No. 766 C.D. 2012, filed May 2, 2013).

This Court has previously held that where an issue which could have been raised earlier is raised for the first time in a motion for reconsideration, it is not preserved for appellate review. See Bedford Downs M[gmt.] Corp[.] v. State Harness Racing Comm['n], . . . 926 A.2d 908, 924 ([Pa.] 2007) ('[I]ssues raised for the first time in a reconsideration request, after the agency has issued its adjudication, cannot be regarded as raising the issues while the matter was before the agency.'); Ramsey v. P[a.] Milk M[ktg.] B[d.], . . . 572 A.2d 21, 25 ([Pa. Cmwlth.] 1990); Frankford Hosp[.] v. Dep['t] of Pub[.] Welfare, . . . 466 A.2d 260, 262 ([Pa. Cmwlth.] 1983); see also Rabatin v. Allied Glove Corp[.], . . . 24 A.3d 388, 391 ([Pa. Super.] 2011) ('While the issue was included in the subsequently filed motion for reconsideration, issues raised in motions for reconsideration are beyond the jurisdiction of this Court and thus may not be considered by this Court on appeal.').

Lin v. Bd. of Revision of Taxes of the City of Phila., 137 A.3d 637, 643 (Pa. Cmwlth. 2016) (emphasis added).

         In the instant action, DY did not appear at the December 20, 2018 trial court hearing. Had it done so, it could have opposed the City's requested fines as excessive. "Issues not raised at the earliest possible time during a proceeding are waived." Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. Cmwlth. 2010), superseded on other grounds by Pa.R.A.P. 1513(d), as recognized in Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181 (Pa. Cmwlth. 2015). Because DY failed to appear at the hearing and challenge the City's request for the $243, 200.00 fine as constitutionally excessive, DY did not raise the issue "at the earliest possible time during [the] proceeding[.]" Id. ...

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