W. M. Gross v. Harrisburg Building and Housing Code Board of Appeals (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA William M. Gross, Appellant v. Harrisburg Building and Housing Code Board of Appeals BEFORE: : : : : : : : No. 1191 C.D. 2007 SUBMITTED: December 21, 2007 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE LEADBETTER FILED: January 30, 2008 William M. Gross (Appellant), proceeding pro se, challenges the order of the Court of Common Pleas of Dauphin County (common pleas) condemning the properties located at 1637 and 1639 Paxton Street, Harrisburg, Pennsylvania and affirming Condemnation Order No. 2005-050 and Condemnation Order 2005-051 (the condemnation orders) issued by the City of Harrisburg, Department of Building and Housing Development (the Department). In April 2005, the Department issued two condemnation orders following an exterior inspection of the properties.1 The Department determined that the neglected state of the properties violated Sections 108.1, 109.0 and 110.0 1 The 1637 and 1639 properties are a single structure divided by a common center wall (otherwise known as a twin or duplex). of the 2000 International Property Maintenance Code as adopted in the Codified Ordinances of the City of Harrisburg (Building Code), under Section 8-107.2. Appellant appealed the condemnation orders and the Harrisburg Building and Housing Code Board of Appeal (Board) held a hearing in July 2005. At the hearing, Earl Dieffenderfer, a code enforcement officer for the Department, testified regarding the physical conditions present at the Paxton Street properties. Dieffenderfer testified that during his inspection of the properties on April 5, 2005, he observed a general state of disrepair and neglect, including, inter alia, a deteriorated roof, a lack of proper roof drainage, broken and missing windows, deteriorated porch/balcony assembling, a partially collapsed soffit and fascia and deteriorated millwork. Dieffenderfer testified that these conditions violated the City Building Code and constituted the basis for the condemnation orders. The two orders and photographs of the properties taken by Dieffenderfer were admitted into evidence. Appellant did not dispute that the properties were not in compliance with the Building Code, but rather asserted that the building should not be demolished because the interior of the building was structurally sound. A transcript of the hearing, including all exhibits, was made, preserved and filed as the certified copy of the record. As a quorum of Board members were not present at the July hearing, the Board held a second hearing in January 2006 at which no new testimony was taken. Having reviewed the exhibits and the transcript of the July 2005 hearing, the Board voted unanimously to uphold the condemnation orders. A verbatim transcript of the January hearing was made. Thereafter, the Board issued a decision denying Appellant s appeal and sustaining the condemnation orders, which required Appellant to begin immediate rehabilitation or demolition of the properties. 2 Appellant then appealed to the court of common pleas. The parties initially stipulated that the record developed in front of the Board was full and complete. However, in November 2006 common pleas sua sponte issued an order stating that, the Court finds that the record is not complete and we cannot, as a matter of law, decide this case based upon the record before us. See November 13, 2006, order. Common pleas held a de novo hearing on February 7, 2007. Dieffenderfer again testified regarding the general neglected state and the unchanged, even advanced deterioration of the properties. Additional photos of the properties taken by Dieffenderfer in February 2007 were submitted into evidence. Appellant again did not dispute that the properties were not in compliance with the Building Code, but rather insisted that the building should not be condemned because the interior was structurally sound. Consequently, virtually the same record was developed before common pleas as was before the Board. Following the hearing, common pleas issued an order on February 7 allowing Appellant 15 days to notify the Department whether he intended to repair his properties in compliance with the Building Code or demolish the building. Appellant responded to the February 7 order by proposing to minimize the dangerous conditions at his properties without bringing the buildings up to code. At this time, Appellant admitted that he did not have the financial wherewithal to rehabilitate the building and that the properties were subject to several liens. On March 9, 2007, common pleas issued an order affirming the condemnation orders because Appellant s attempts to minimize the dangerous conditions at his properties did not comply with the options offered to him in the February 7 order. On appeal, Appellant asserts that: (1) common pleas should not have conducted a de novo hearing when a full and complete record before the local 3 agency existed; and (2) the March 9 order was improper as it was not based on the propriety of the condemnation orders, but rather Appellant s failure to comply with common pleas February 7 order. We affirm. Appellant first asserts that common pleas erred when it held a de novo hearing instead of proceeding in its appellate posture.2 Section 754 of the Local Agency Law, 2 Pa. C.S. § 754, governs the court's disposition of an appeal from a local agency. Pursuant to Section 754(b), the court shall affirm the decision of the local agency when it has developed a complete record, unless the court determines that the necessary findings of fact are not supported by substantial evidence, that constitutional rights were violated, that an error of law was committed or that the procedures followed by the agency were contrary to statute. Society Created to Reduce Urban Blight (Scrub) v. Zoning Bd. of Adjustment of the City of Phila., 804 a.2d 147, 150 (Pa. Cmwlth. 2002). A full and complete record is defined as a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal and, also, that the appellate court is given a sufficient record upon which to rule on the questions presented. In re Thompson, 896 A.2d 659, 668 (Pa. Cmwlth. 2006). In the event a full and complete record of the proceedings before the local agency was not made, the court may hear the 2 The Board contends that Appellant has not properly developed any issue, cited insufficient case law in his brief and his brief is not in compliance with the Rules of Appellate Procedure. The Board requests that Appellant s appeal be dismissed or in the alternative that the Court suppress those questions listed in Appellant s Statement of Questions Involved that have not been adequately addressed and argued. While we note that Appellant s brief contains many defects, we have considered the merits of particular cases where defects in the brief did not preclude meaningful appellate review or result in waiver of issues. Russell v. Unemployment Comp. Bd. of Review, 812 A.2d 780, 783-84 n.3 (Pa. Cmwlth. 2002). Therefore, because we can discern several arguments raised by the Appellant, we deem review to be possible. See id. However, we will address only the two arguments developed in Appellant s brief and not all issues raised in the Statement of Questions Involved. 4 appeal de novo, or remand to the agency to make a full and complete record. Id. The trial court's authority to remand or hear a case de novo is tied to a finding that a complete record was not made before the local agency. Only if the trial court determines that the record before the agency is incomplete, does it have discretion to determine the manner of implementing a deficient record. Ret. Bd. of Allegheny County v. Colville, 852 A.2d 445, 450 (Pa. Cmwlth. 2004) appeal after remand at 888 A.2d 21 (Pa. Cmwlth. 2005), aff d¸592 Pa. 433, 926 A.2d 424 (2007). In general, this Court has held that courts which ordered a de novo hearing for reasons such as a missing transcript, refusal by a party to produce documents or improper limitation of a party s ability to cross examine, have not abused their discretion. See, e.g., School Dist. of the City of Erie v. Hamot Med. Ctr. of the City of Erie, 602 A.2d 407, 409 (Pa. Cmwlth. 1992); In re: Appeal of Disciplinary Action by Lawrence Twp. Bd. of Supervisors, 544 A.2d 1070, 1073 (Pa. Cmwlth. 1988); Township Manager of the Township of Falls v. Striluk, 501 A.2d 301, 302 (Pa. Cmwlth. 1985). On the other hand, this Court has held that common pleas abused its discretion by conducting a de novo hearing for the purpose of allowing a party to introduce evidence regarding an issue not raised before the local agency, or to allow a party to introduce evidence not available at the time of the local agency hearing. See Powell v. Middletown Twp. Bd. of Supervisors, 782 A.2d 617, 621-22 (Pa. Cmwlth. 2001); Monaghan v. Bd. of School Dir. of Reading Sch. Dist., 618 A.2d 1239, 1242 (Pa. Cmwlth. 1992). In the case at hand, common pleas determined without explanation that the record before the Board was incomplete and that it was unable, as a matter 5 of law, to decide the case.3 Having reviewed the record from the Board, we are unable to see any gaps in the record such that common pleas would have found the record incomplete. Consequently, we find that common pleas erred as a matter of law in conducting a de novo hearing. However, reversal and remand is unnecessary because the error was harmless. Common pleas error was harmless for several reasons. First, Appellant does not allege any harm. Second, essentially the same evidence was entered into the record at both the Board hearing and the common pleas hearing. In addition, Appellant did not preserve any objection that common pleas findings of fact were not supported by substantial evidence. Appellant never disputed at the Board hearing or the common pleas hearing that his properties were in violation of the Building Code. Appellant acknowledged that the exterior portions of the properties were neglected and in need of repair, but asserted that the interior portions of the buildings were structurally sound. Whether the properties were structurally sound was not an issue before the Board. Rather, the issue before the Board was whether the observed condition of the properties violated the Building Code. By conducting a de novo hearing, common pleas gave Appellant a second opportunity to provide evidence that his properties were not in violation of the Building Code. Appellant did not take the opportunity given to him, but rather again asserted that the building should not be demolished because it was structurally sound on the interior despite the deterioration of the exterior. Both proceedings demonstrated that the building was dangerous and in violation of the Building Code. Therefore, the result would have been the same had common pleas 3 We note that it would have been helpful if common pleas had elaborated as to exactly what the record lacked such that it could not rule on the questions presented. 6 reviewed the Board s proceedings under an appellate standard, and any error was harmless. Appellant also contends that common pleas March 9 order was improper because the order was not based on the whether the condemnation orders were proper under the Building Code, but rather on Appellant s failure to comply with either of the options provided to him in common pleas February 7 order. The February 7 order required Appellant to take one of two actions. Appellant had the option to begin to take the steps required to bring the properties in compliance with the Building Code. Alternately, Appellant could choose to demolish the building. Appellant did not choose to accept either of the options provided by common pleas, but rather sought to create his own solution, i.e. minimizing the dangerous conditions present at the properties without bringing them up to code. Appellant does not seem to comprehend that it is the City of Harrisburg that sets the standards to which properties owners must maintain their premises and not the property owners themselves. Properties that are in violation of the Building Code must be brought into compliance or they may become subject to a demolition order. For example, § 108.1 of the Building Code states that a structure may be considered unsafe and subject to condemnation where it is so damaged, decayed or dilapidated that partial or complete collapse is possible. The evidence provided at both the Board hearing and common pleas hearing demonstrated that the fascia and soffit along with portions of the porch and balcony had collapsed. The March 9 order sustained the Board s condemnation orders. Common pleas properly conducted a hearing at which the Board provided evidence as to the neglected and deteriorated state of Appellant s properties and submitted into evidence specific examples of Code violations. The fact that common pleas first gave Appellant an 7 opportunity to bring his property into compliance does not change the fact that its order upholding the condemnation of Appellant s properties was based upon substantial evidence that the properties were not in compliance with the Code. Thus, common pleas properly upheld the condemnation orders. Accordingly, we affirm. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge 8 IN THE COMMONWEALTH COURT OF PENNSYLVANIA William M. Gross, Appellant v. Harrisburg Building and Housing Code Board of Appeals : : : : : : : No. 1191 C.D. 2007 ORDER AND NOW, this 30th day of January, 2008, the order of the Court of Common Pleas of Dauphin County in the above captioned matter is hereby AFFIRMED. _____________________________________ BONNIE BRIGANCE LEADBETTER, President Judge
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