Comwlth of PA v. R. M. Wahner, Jr. - 1678, 1695 & (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. Rudolf M. Wahner, Jr., Appellant BEFORE: : : : : : : : : No. 1678 C.D. 2007 No. 1695 C.D. 2007 No. 1719 C.D. 2007 Submitted: February 15, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SMITH-RIBNER FILED: June 4, 2008 Rudolf M. Wahner, Jr., (Wahner) appeals from the orders of the Court of Common Pleas of Delaware County that found Wahner guilty of violating the following provisions of the Ridley Township Code (Code): Ch. 92, §111.1 (failure to obtain demolition permit) (Citation P2751358-1); Ch. 92, §118.2 (failure to comply with stop-work order) (Citation P5475813-0); Ch. 403, §403.43(g) (expired permit and failure to re-apply for permit) (Citation P5556422-4); and Ch. 202, §202.19 (parking vehicle in front yard in residential district) (Citations P5475842-1, P5475831-4, P5475840-6, P5475839-5, and P5475830-3). Wahner owns a four-unit residential building whose rear wall partially collapsed in 2001 due to termite infestation. He eventually demolished the left side of the rear wall to prevent further damage but admittedly did not obtain a permit to do so. Following complaints of scattered demolition debris, Wahner was cited on August 6, 2004 for performing demolition without a permit by the code enforcement officer, Paul Dick, who also observed that no safety measures were provided for the building. Officer Dick charged Wahner under Section 114.3.5 instead of under Section 111.1 of the Code.1 Wahner thereafter applied for a sixmonth reconstruction permit, but it expired in February 2005 without work being completed. Wahner admittedly resumed work in 2006 without a permit. On August 3, 2006, Officer Dick posted a stop-work order on the building because the reconstruction permit had expired and the exterior wood in the rear of the building was weathered and posed a danger. On August 15, 2006, Officer Dick noticed that the stop-work order had been removed and that siding had been added. The officer cited Wahner for failing to comply with the order under Section 118.2 of the Code.2 The next day Wahner was cited by an assistant code enforcement officer under Section 403.43(g)3 for failing to complete the construction within the permit period and to re-apply for a permit to continue the work. Wahner was again cited in 2007 on January 12 and 16 and on February 2, 7 and 8 for parking his flatbed commercial truck on the front lawn of the property in violation of Section 202.19.4 He admitted parking the truck on the front lawn. 1 Section 114.3.5 provides in part as follows: "Where work for which a permit is required ¦ is started prior to obtaining the required permit, the fees set forth herein for such permit shall be doubled[.]" Section 111.1 provides in part as follows: "It shall be unlawful to construct ¦ or demolish a structure ¦ without ¦ obtaining the required permit[.]" 2 Section 118.2 provides in part as follows: "Unlawful continuance: Any person who shall continue any work ¦ after having been served with a stop-work order ¦ shall be liable to a fine[.]" 3 Section 403.43(g) was adopted by the Township from the Uniform Construction Code, 34 Pa. Code §403.43(g), which provides in part as follows: "A permit becomes invalid ¦ if the authorized construction work permit is suspended or abandoned for 180 days after the work has commenced. A permit holder may submit a written request for an extension of time to commence construction for just cause." 4 Section 202-19 provides as follows: "Prohibited acts. Parking in the front yard of any lot zoned residential in the Township of Ridley is prohibited." 2 Wahner was found guilty of the violations by the magisterial district justice. He appealed and the trial court held a hearing on April 4, 2007. The trial court allowed the Commonwealth to amend the citation charging Wahner under Section 114.3.5 to Section 111.1 after finding that the substance of the violation under both sections is the same, with no resulting prejudice to Wahner. After hearing the evidence and crediting Officer Dick's testimony over the testimony of Wahner, the trial court found Wahner guilty of the violations as charged. The trial court concluded that the Commonwealth proved its case beyond a reasonable doubt, and in its opinion it rejected all of the claims of error that Wahner raised. Regarding the Section 111.1 violation (failure to obtain a demolition permit), Wahner questions whether the citation was issued beyond the statute of limitations for prosecution of the offense, whether the trial court erred in allowing amendment of the citation from Section 114.3.5 (commencing work prior to obtaining permit) to Section 111.1 and whether the district court's verdict should be upheld when the hearing took place more than 2 years after the citation was issued. Regarding the Section 118.2 violation (failure to comply with stop-work order) and Section 403.43(g) violation (expired permit), Wahner questions whether the trial court erred in finding that the Commonwealth proved its case beyond a reasonable doubt. As for the Section 202.19 violation (parking a vehicle in front lawn in a residential district), Wahner questions whether the trial court erred in finding him guilty beyond a reasonable doubt, whether the Township ordinance was properly applied and whether the citations were properly issued. 5 5 The Court's review of the trial court's order in an appeal from a summary conviction is limited to deciding whether the trial court committed an error of law or whether its findings are supported by competent evidence. Commonwealth v. A.D.B., 752 A.2d 438 (Pa. Cmwlth. 2000). 3 After examining the record and considering the arguments presented, the Court determines that the trial court thoroughly and ably disposed of questions presented in this appeal. The Court also finds that the issues regarding the Section 403.43(g) violation and the statute of limitations for the Section 111.1 violation are waived because they were not preserved for appellate review. Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005). Moreover, the Court rejects Wahner's argument that the citations for parking on the front lawn were improperly issued to him personally rather than to his business, which owns the truck. The Code places the responsibility on the property owner and not on the vehicle owner. See Ch. 202, §202.1 (stating that party who has direct control over private property shall be presumed to have control over any vehicle so parked regardless of who actually parked it). Because the trial court committed no error of law and its findings are supported by competent evidence, the Court affirms the orders on the basis of the opinion issued by the Honorable Kathrynann W. Durham of the Court of Common Pleas of Delaware County in Commonwealth v. Rudolf M. Wahner, Jr., (Nos. SA02-07, SA-03-07, SA-04-07, SA-297-07, filed August 21, 2007). DORIS A. SMITH-RIBNER, Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Commonwealth of Pennsylvania v. Rudolf M. Wahner, Jr., Appellant : : : : : : : : No. 1678 C.D. 2007 No. 1695 C.D. 2007 No. 1719 C.D. 2007 ORDER AND NOW, this 4th day of June, 2008, the Court affirms the orders of the Court of Common Pleas of Delaware County on the basis of the opinion issued by the Honorable Kathrynann W. Durham of the Court of Common Pleas of Delaware County in Commonwealth v. Rudolf M. Wahner, Jr., (Nos. SA-02-07, SA-03-07, SA-04-07, SA-297-07, filed August 21, 2007). DORIS A. SMITH-RIBNER, Judge
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