The opinion
J-S09044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SAINT VLADIMIR UKRAINIAN : IN THE SUPERIOR COURT OF
ORTHODOX CHURCH OF : PENNSYLVANIA
PHILADELPHIA :
:
:
v. :
:
:
STANLEY J. SAUNDERS : No. 774 EDA 2024
:
Appellant :
Appeal from the Order Entered February 6, 2024
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 210300071
BEFORE: LAZARUS, P.J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 16, 2025
Stanley J. Saunders appeals from the trial court’s February 6, 2024
order denying his post-trial motion filed following the appointment of the
Commonwealth Preservation Alliance, Inc. as conservator in this action
proceeding under the Abandoned and Blighted Property Conservatorship Act,
68 P.S. §§ 1101-1111 (“Act 135”). For the reasons that follow, we affirm.
By way of background, we note that Appellant is the record owner of a
parcel of property located at 500 Independence Street in Philadelphia,
Pennsylvania (“the property”). Appellee, Saint Vladimir Ukrainian Orthodox
Church of Philadelphia, is a religious entity which maintains a house of worship
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S09044-25
that abuts said property. Since October 30, 2023, the Commonwealth
Preservation Alliance, Inc. (hereinafter, “CPA”) has served as the court-
appointed conservator of the property.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On March 1, 2021, [Appellee] filed its petition for
appointment of a conservator pursuant to [Act 135]
for [the property].
After reviewing the petition and instructing [Appellee]
to serve all necessary parties, the [trial court]
scheduled an evidentiary hearing on June 30, 2021.
On June 26, 2021, [Appellant] filed a praecipe to
defer pending a Chapter 13 bankruptcy petition filed
by [Appellant] in the United States Bankruptcy Court
for the Eastern District of Pennsylvania on June 14,
2021. [Appellant’s] bankruptcy action was dismissed
by order dated April 28, 2022, and [Appellee] filed a
motion to relist the Act 135 action on January 20,
2023. The [trial court] granted [Appellee’s] motion
on April 12, 2023, and scheduled an evidentiary
hearing on June 16, 2023 to consider testimony and
evidence on the conditions of the property as of the
date the petition was filed.
All parties were present and represented by counsel
at the June 16, 2023 hearing. By order dated June
16, 2023 and docketed on June 20, 2023, the [trial
court] found that [Appellee] established the property
abandoned and blighted as defined under 68 P.S.
§ 1105(d), and scheduled a hearing for August 9,
2023, to determine whether the [trial court] would
afford [Appellant] the opportunity to pursue
conditional relief of the property pursuant to 68 P.S.
§ 1105(f). In its order, the [trial court] specified the
evidence it sought from [Appellant] to substantiate his
ability to remediate the property through conditional
relief.
-2-
J-S09044-25
On July 1, 2023, [Appellant] filed a motion for post-
trial relief under control no.: 23070101. At the August
9, 2023 hearing, [Appellant] withdrew his motion for
post-trial relief by oral motion, requested that the
[trial court] afford him the opportunity to pursue
conditional relief, but failed to present any evidence
to support his request. Following the August 9, 2023
hearing, the [trial court] scheduled another hearing
for October 11, 2023 on whether to grant
[Appellant’s] request to perform conditional relief, and
again specified the evidence it sought from
[Appellant] in support of his request. At the October
11, 2023 hearing, [Appellant] failed to present the
[trial court] with satisfactory evidence of his capacity
to remediate the property. Following the October
11[th] hearing, the [trial court] found [Appellee’s]
nominated conservator, [CPA], qualified to serve as
conservator, held the matter under advisement to
allow the parties to submit photographic evidence of
the current condition of the property, and allow
[Appellant] additional time to demonstrate capacity to
remediate the property. The [trial court] ordered that
“[i]f no documentation has been submitted by
[Appellant] by or on Thursday, October 26th at 5:00
p.m., [it] may appoint [CPA] as conservator.” On
October 30[], 2023, having received nothing from
[Appellant], the [trial court] appointed [CPA] as
conservator of the property.
[Appellant] filed a second motion for post-trial relief
on November 10, 2023. The [trial court] requested
briefs from each party on whether [Appellant’s]
motion should be granted, extended the deadlines for
briefs at [Appellant’s] request by order dated
December 19, 2023, held oral argument on February
5, 2024, and denied [Appellant’s] motion at the
conclusion of oral argument by order entered
February 6, 2024.
Trial court opinion, 5/17/24 at 2-4 (footnotes and extraneous capitalization
omitted; some brackets in original).
-3-
J-S09044-25
On February 29, 2024, Appellant filed a notice of appeal from the trial
court’s February 6, 2024 order denying his motion for post-trial relief. On
March 7, 2024, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal within 21 days, pursuant to Pa.R.A.P.
1925(b).1 On May 24, 2024, Appellee filed an application to quash Appellant’s
appeal as taken from a non-appealable interlocutory order. On June 28, 2024,
this Court filed a per curiam order denying Appellee’s application to quash
without prejudice as to raise those arguments before the merits panel.
Preliminarily, we find that the instant appeal is properly before us
pursuant to Pa.R.A.P. 311(a)(2), which permits an interlocutory appeal as of
right from order an affecting the possession or control of property. This Court
has recently held that an appeal of an order appointing a conservator or
granting conditional relief under Section 1105(f)(1) of Act 135 is properly
taken from the order denying post-trial motions, pursuant to Rule 311(a)(2).
Oceanview Prop. Mgmt. & Recovery Servs., LLC v. Baker, 319 A.3d 508,
511-512 (Pa.Super 2024). The Oceanview Court explained that an appeal
from the order denying post-trial motions is proper because such an order
effectively affirms the trial court’s previous order affecting the possession or
control of property. Id. at 511, n.4. Accordingly, we now turn to the claims
raised by Appellant on appeal.
____________________________________________
1 Appellant and the trial court have complied with Pa.R.A.P. 1925.
-4-
J-S09044-25
Appellant raises the following issues for our review:
I. Whether the record lacks sufficient admissible
evidence to sustain the trial court’s findings and
holding that [Appellee] established that
[Appellant’s] property has been abandoned for
at least twelve months as of [Appellee’s] March
1, 2021 filing of its Act 135 petition, when the
testimonial and documentary evidence
presented by [Appellee] was incompetent,
irrelevant, speculative, unauthenticated, largely
uncorroborated hearsay and thereby
inadmissible and which did not meet either the
Section 1105(d)(1) requirements to establish
“abandonment” or not being “legally occupied”
as defined in Scioli[2], and thereby the trial
court erred in granting [Appellee’s] Act 135
petition predicated thereon[?]
II. Whether the record lacks sufficient admissible
evidence of record to support the trial court’s
finding that [Appellee] met it burden of
establishing that [Appellant’s] property was
blighted within the meaning of Section
1105(d)(5)(i), (ii), (iv) and (vii) for the
appointment of a conservator and thereby the
trial court also committed errors of law in
admitting, over the objections of [Appellant],
the irrelevant, incompetent, unauthenticated,
uncorroborated hearsay and otherwise
inadmissible testimonial and documentary
evidence presented by [Appellee] and
predicated its decision granting [Appellee’s] Act
135 petition thereon[?]
Appellant’s brief at 4 (extraneous capitalization omitted).
Our appellate role in cases arising from nonjury trial
verdicts is to determine whether the findings of the
trial court are supported by competent evidence and
whether the trial court committed error in any
____________________________________________
2 Scioli Turco, Inc. v. Prioleau, 207 A.3d 346 (Pa.Super. 2019).
-5-
J-S09044-25
application of the law. The findings of fact of the trial
judge must be given the same weight and effect on
appeal as the verdict of the jury. We consider the
evidence in a light most favorable to the verdict
winner. We will reverse the trial court only if its
findings of fact are not supported by competent
evidence in the record or if its findings are premised
on an error of law. However, [where] the issue ...
concerns a question of law, our scope of review is
plenary.
The trial court’s conclusions of law on appeal
originating from a non-jury trial are not binding on an
appellate court because it is the appellate court’s duty
to determine if the trial court correctly applied the law
to the facts of the case.
Gamesa Energy USA, LLC v. Ten Penn Ctr. Assocs., L.P., 181 A.3d 1188,
1191–1192 (Pa.Super. 2018) (citation omitted; brackets in original),
affirmed, 217 A.3d 1227 (Pa. 2019).
Upon review, we find that Appellant’s claims on appeal warrant no relief.
The trial court addressed each of Appellant’s allegations of error in its
comprehensive, 46-page opinion and concluded that they are without merit.
We find that the trial court’s conclusions are supported by competent evidence
and are free of legal error. Specifically, we agree with the trial court that “the
[p]roperty was not legally occupied pursuant to [Section] 1105(d)(1) as the
term is defined in [Scioli].” See trial court opinion, 5/17/24 at 8-13. We also
agree with the trial court that Appellee satisfied “at least three of list of nine
enumerated conditions” for appointment of a conservatorship under 68 P.S. §
1105(d)(5). See id. at 14-20.
-6-
J-S09044-25
Accordingly, we adopt the aforementioned portions of the well-reasoned
May 17, 2024 opinion of the Honorable Ann M. Butchart as our own for
purposes of this appellate review. We hereby direct the parties to attach the
trial court opinion to this Memorandum in all future proceedings.
Order affirmed.
Date: 4/16/2025
-7-
I 03/28/2025 10:35
Circulated 03/2802025 10.35 AM
I
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
SAINT VLADIMIR UKRAINIAN
ORTHODOX CHURCH OF SUPERIOR
SUPERIOR COURT
COURT
PHILADELPHIA
PlllLADELPRlA 774
774 EDA
EDA 2024
2024
Petitioner,
V.
Trial Court Docket:
STANLEY J. SAUNDERS March Term, 2021
Respondent No.
No, 00071
OPINION
BUTCHART,
BUTCIHART, JJ. May 17, 2024
Saunders ("Respondent"),
Stanley J. Saunders ("Respondent"), files this appeal of the Court's Orders dated June 16,
August
August 9, October 11, and October 30, 2023.
Respondent's interlocutory appeal was filed without authorization under the
Respondent's
Pennsylvania
Pennsylvania Rules of Appellate Procedure. Respondent
Respondent did not appeal a
a final Order, did not
permission, and did not file as of Right from Interlocutory Orders pursuant to Pa.R.A.P.
seek permission, Pa.R.A.P
311. The
The Court respectfully
respectfully requests
requests that
that this
this Honorable
Honorable Court quash the
the appeal and
and remand
remand for
for
proceedings. See
further proceedings. See Garzone •
v. Kelly, 539
539 A.2d
A.2d 1292
1292 at
at 1295-96
1295-96 (Pa.
(Pa. Super 1991).
1991).
Further, Respondent
Respondent has failed to provide
provide the Court with an adequate
adequate Statement of Errors
Complained 1925(b).
Complained of on Appeal as required by Pa.R.A.P. 1925(b)
OPFLD-Sa M Madimh Uk-d-a Orthodox Church Of Phiiade
11111111111111111111111111111
III III
SO :01 Wd L1
$0·0 L AH!
21030007100104
21030007 100i04
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PURSUANTTO
COPIES SENT PURSUANT Pa.R.C.P. 236(b)
TO PA.R.CP, D. DRAYTON 05/17/2024
236lb) D.
I.
I PROCEDURAL
PROCEDURAL HISTORY
HISTORY
On March 1, 2021, Petitioner Saint Vladimir Ukrainian Orthodox Church of
Philadelphia ("Petitioner")
(Petitioner") filed its Petition for the appointment of aaConservator pursuant
pursuant to the
Abandoned and Blighted
Blighted Property Conservatorship Act
Act at 68 P.S. $§ 1101
at 68P.S. 1H0I et seq. (the "Act" or
seq. (the
"Act 135")
135) for the
the Property
Property owned by Respondent
Respondent at
at 500 Independence Street, Philadelphia,
500 Independence Philadelphia,
Pennsylvania,
Pennsylvania, 19126
19126 (the
(the"Property").
Property")
After reviewing the Petition and instructing
instructing Petitioner to serve all necessary parties, the
necessary parties',
Court scheduled an evidentiary hearing
Count hearing on
on June 30, 2021. 2
30, 2021 OnOn June 26,
26, 2021,
2021, Respondent
Respondent filed
filed aa
Praecipe to Defer pending
pending aa. Chapter 13 bankruptcy
bankruptcy petition filed by
by Respondent
Respondent in the United
States Bankruptcy Court for the
the Eastern
Easter District
District of
of Pennsylvania
Pennsylvania on
on June
June 14,
14, 2021. Respondent's
Respondent's
bankruptcy action was dismissed by Order dated April28,
April 28, 2022',
2022 3,and Petitioner filed
filed aaMotion to
Relist
Relist the Act 135
the Aet 135 Action
Action on January
January 20, 2023.
2023. The Court Granted Petitioner's Motion
Motion on April
April
12, 2023, and scheduled an evidentiary hearing
hearing on June
June 16,
16, 2023 to testimony and
to consider testimony and
evidence on
on the conditions
conditions of the
the Property as of the
the date the Petition
Petition was
was filed.
filed."4
All Parties were present and
and represented by counsel at the June 16, 2023 hearing.
hearing.5 By
By
Order dated June 16, 2023 and docketed on June 20, 2023, the Court found that Petitioner
established the Property abandoned and blighted
blighted as defined under
as defied under 68 P.S.
P.S. §$ 1105(d),
1105(d), and
and
scheduled aahearing
hearing for August 9, 2023, to determine whether the Court would afford
Respondent the opportunity to pursue Conditional Relief of the Property
Property pursuant
pursuant to 68 P.S. §
$
'See
see March 26, 2021 Count
26,2021 Court Order
Order.
2 See April
See April 28, 2021 Court Order
2021 Count Order.
3See Petitioner's Motion to Relist Act 135 Action Following Dismissal of Bankruptcy
'See Bankruptcy Case
4 See April
12, 2023 Court Order,
See April 12,2023 Order.
Attorney, Robert L
Attomey,
5 appearance was recorded on June 16,2023
L Simmons' entry of appearance 16, 2023 at 5:22 p.m.
p.m
22
1105(f).
1105()."6 In its Order, the Court specified Respondent to substantiate
specified the evidence it sought from Respondent
ability to
his ability to remediate the Property
remediate the Property through Conditional Relief.
through Conditional Relief
On July
On July 1, 2023, Respondent
I, 2023, Respondent filed
filed aaMotion
Motion for
for Post-Trial
Post-Trial Relief
Relief under Control No.:
under Control No.:
23070101. At
At the August 9, 2023
the August 2023 hearing,
hearing, Respondent
Respondent withdrew
withdrew his
his Motion for
for Post-Trial
Post-Trial Relief
Relief
by oral motion,
by motion, requested
requested that the Court afford him the opportunity
opportunity to pursue
pursue Conditional Relief,
any evidence to support
but failed to present any support his request.
request. Following
Following the August hearing,
August 9, 2023 hearing,
the Court scheduled another hearing
hearing for October 11, 2023 on whether to grant Respondent's
Respondent's
request
request to perform Conditional Relief,
to perform and again
Relief, and again specified
specified the
the evidence it
it sought from
from
Respondent support of his request.?
Respondent in support request.' At the October 11, 2023 hearing,
hearing, Respondent
Respondent failed to
present
present the Court with satisfactory evidence of his capacity to remediate the Property. Following
the October 11
II hearing,
hearing, the Court found Petitioner's nominated Conservator, Commonwealth
Preservation Alliance, qualified
qualified to serve as Conservator, held the matter under advisement to
allow the parties
parties to submit photographic
photographic evidence of the current condition of the Property,
Property, and
allow Respondent
allow additional time
Respondent additional to demonstrate
time to demonstrate capacity
capacity to
to remediate
remediate the
the Property.$ The Court
Property." The Court
ordered that "[i]f no documentation has been submitted by Respondent
Respondent by or on Thursday,
October 26th 5:00 p.m.,
26 at 500 p.m., [it] may appoint
[it] may appoint Commonwealth Preservation Alliance as
30th, 2023,
Conservator." On October 30", 2023, having
having received nothing
nothing from Respondent,
Respondent, the Court
appointed Commonwealth Preservation Alliance as Conservator of the Property.
appointed Property.9
Respondent
Respondent filed aasecond
second Motion
Motion for
for Post Trial Relief on November
November 10,
10, 2023.
2023. The
The
Court requested
requested briefs
briefs from party on whether Respondent's
from each party Respondent's Motion
Motion should be
be granted,lo
granted,"
This provision
+Ti
6 provision of Act
Aet 135
13$ allows the Court to permit
permit the owner to
to remedy the blighting conditions of the Property
"the owner represents
if the represents that the conditions,
conditions, violations or nuisance or emergency condition will be abated in
in aa
reasonable period."
period." 68 P.S. $§ 1105(
1105(f).
See August
7See
7 9, 2023 Count
August 9,2023 Court Order.
8 See October 11,
See 2023 Court Order.
11,2023 Order.
See October 30,
See
9 2023 Count
30,2023 Court Order.
see
io See November 30, 2023 Court
30,2023 Court Order.
Order
3
3
extended the
the deadlines for briefs
briefs at
at Respondent's request
request by Order dated December
December 19,
19, 2023,
held argument on February
held oral argument February 5, 2024, and denied Respondent's
Respondent's Motion
Motion at
at the
the conclusion of
oral argument
oral argument by Order entered
by Order entered on
on February 6, 2024.
February 6, 2024.
On February
February 29, 2024, Respondent
Respondent filed
filed with the Court its Notice of Appeal
Appeal to the
Superior Court of Pennsylvania
Superior Pennsylvania from the order entered in this matter on February
February 6, 2024. On
March 7, 2024, the Court Ordered Respondent
Respondent to file a
a concise statement of errors complained of
appeal ("
on appeal 1925(b) statement"). On March 27, 2024, this Court entered an Order to stay the
(1925(b)
matter pending
pending this appeal
appeal and required Respondent
Respondent post of $10,000
post an appeal bond of $ 10,000 within thirty
thirty
(30) days
(30) days of
of the Order. 11 Respondent
the Order.' Respondent filed his 1925(b)
filed his Statement on
1925() Statement on March
March 29,
29, 2024. See
Attachment 1, Respondent's
Attachment I, Respondent's 1925(b)
1925(b) Statement.
II.
II. DISCUSSION
DISCUSSION
The Abandoned
The and Blighted
Abandoned and Blighted Property Conservatorship Act,
Property Conservatorship 68 P.S. §$ 1H0I,
Act, 68PS. 1101, et
etseq.
seq.
("Act 135"), enacted in 2008, provides
(Aet provides aamechanism to transform abandoned and blighted
properties productive reuse. 68 P.S. §$ 1102. Following an evidentiary hearing on the merits
properties into productive
of the Petition, aaCourt may appoint aaconservator to bring
may appoint property into municipal
bring the property municipal code
compliance when an owner has failed to do so. Id; see also In re
compliance re
Conservatorship Proceeding
Conservatorship Proceeding in
in
Rem
Ren by
by Germantown Conservancy, Inc,,
Germantown Conservancy Inc., 995 A.2d 451, 453
453 (Pa. Commw. Ct. 2010).
2010)
Alternatively,
Alternatively, the Court may
may also permit
permit the owner to remediate the property
property by granting
by granting
Conditional Relief.
Relief. 68 P.S.
P.S. §$ 1105()
1105(f).
In enacting
enacting Act 135, the Legislature
Legislature recognized
recognized that "[s]ubstandard,
"[s]ubstandard, deteriorating
deteriorating and
abandoned [structures]
abandoned [structures] are aapublic
public safety threat" and, if not rehabilitated, are
are "... likely to
see
See March 27,2024
11 27, 2024 Count
Court Order
Order.
44
remain abandoned
abandoned and further 68 P.S. §$ 1102.
further deteriorate." 68P.S. 1102. Act
Aet 135
135 provides
provides that "[i]f the
that "[ilf the owner
of a [building]
[building] fails
fails to
to maintain
maintain the property
property in
in accordance with applicable municipal
with the applicable municipal codes
codes
or standards of public
public welfare
welfare or safety, it
it is
is in the
the best
best interest of
of the
the Commonwealth, the
municipality
municipality and the community for the court, pursuant
the community pursuant to the provisions
provisions of this
this act, to appoint aa
to appoint
conservator to make the necessary
necessary improvements[.]"
improvements[.]" Id. (emphasis added). "Court" is defined
(emphasis added).
under Act
Aet 135 as "[t]he appropriate count
"[the appropriate court of common pleas." P,S. $§ 1103.
pleas." 68 P.S.
1.
I. Respondent's Complained of on Appeal
Respondent's Statement of Errors Complained identify any
Appeal fails to identify any
issues with sufficient specificity
specificity to allow for meaningful
meaningful review.
"It is axiomatic that when
It when aacourt has
has to
to guess
guess what issues
issues a
a defendant
defendant is
is appealing,
appealing, that
that
is not enough for meaningful
meaningful review. Similarly,
Similarly, when aadefendant fails adequately to identify
identify in
aaconcise manner the issues sought to be pursued
pursued on appeal, the trial court is impeded in its
preparation
preparation of a
a legal analysis which is pertinent
pertinent to those issues. In other words,
words, a
a concise
statement which is too vague
vague to allow the court to identify
identify the issues raised on appeal
appeal is the
functional equivalent
equivalent of no concise statement at all." Hassel
[Hassel v.
y. Franzi, 2019 PA Super 109, 207
949 (2019)
A.3d 939, 949 citing Commonwealth
(2019) citing Commonwealth v.
v,Butler, 756 A.2d
A.2d 55, 57
57 (Pa.Super.
(Pa.Super. 2000),
affirmed, 571 Pa. 441, 812 A.2d 631
631 (2002);
(2002); Lineberger
Lineberger v_.
y, Wyeth,
Weth, 894 A.2d 141, 148 (Pa.Super.
141, 148 (Pa.Super.
2006).
2006)
In Commonwealth y,
v. Pukowsky,
Pukowsky, an appellant appealed aatrial court ruling
appellant appealed ruling that limited the
testimony witness. Commonwealth_Pukowsky,
testimony of appellant's witness. Commonwealth v. Pukowsky, 2016 PA Super 201, 147 A.3d
1236 (2016).
1229, 1236 Superior Court held that appellant
(2016). The Superior appellant waived its argument
argument as to this ruling
ruling
where appellant failed to
to make specific reference
reference to any testimony
testimony of its
its witness
witness that was
was
improperly
improperly limited. Id.
Id. Instead,
Instead, Appellant
Appellant merely
merely stated in
in its 1925(b) Statement
its 1925() that "[the
Statement that "[t]he
limiting the testimony
Court erred in limiting Appellant's [witness],
testimony of Appellant's [witness], as both aafact witness and an
55
expert witness. Id.
expert [d, Said limitations were highly
highly prejudicial
prejudicial to Appellant,
Appellant, and violative of his due
process rights."
process Id. Several objections
rights." [d. objections to the witness' testimony
testimony were raised during
during trial,
trial, some of
which were sustained, forcing guess as to which objections
forcing the Court to guess objections formed the basis of the
appeal. Id.
appeal. Id.
v. Hansley,
In Commonwealth y. Hanslev, an appellant
appellant waived arguments
arguments that it failed to "properly
"properly
develop" in
develop" in its
its 1925(b) statement. Com.
1925(b) statement. Com. v. Hanslev, 201I
v, [Hansley, 2011 PA Super 129,
PA Super 129, 24
24 A.3d 410, 415
A.3d 410, 415
(2011). Appellant's
(2011). Appellant's 1925(b) statement argued, variously,
1925(b) statement that the
variously, that the Court
Court "erred in permitting
permitting
[Appellee's counsel]
[Appellee's counsel] to question [Appellant]
to question [Appellant] about
about things
things that
that went
went beyond
beyond the
the scope of the
scope of the
direct examination," and
and "in
"in permitting
permitting [Appellee's counsel] to
[Appellee's counsel] constantly make
to constantly make comments
questioning the
questioning the truthfulness of [Appellant's]
truthfulness of [Appellant's] testimony"
testimony" without specific reference
without specific to the
reference to the notes
notes of
testimony. Id.
testimony Id
Here, Respondent
Respondent appeals evidentiary rulings
rulings made over the course of three hearings.
hearings
Respondent
Respondent never
never references the testimony
references the testimony of
of any
any witness,
witness, let alone any
let alone any Respondent's
Respondent's objections
objections
which were overruled or any Petitioner's objections
objections which were sustained. Instead, Respondent
Respondent
argues in his 1925(b)
1925(b) Statement that the Court
Court "erred and abused its discretion in summarily
summarily
overruling Respondent's
overruling objections to
Respondent's objections to the hearsay, double
the hearsay, double hearsay and otherwise
hearsay and otherwise impermissible
impermissible
oral testimony and admission
testimony and admission of documents," which
of documents," which rulings
rulings violate "the Rules
violate "the of Evidence
Rules of and
Evidence and
law,"
law," "Rules of Court,
"Rules of Court, laws of the
laws of Commonwealth of
the Commonwealth of Pennsylvania
Pennsylvania and
and the
the equal
equal protection and
protection and
due
due process
process requirements of the
requirements of the Pennsylvania and U.S.
Pennsylvania and U.S. Constitutions." Resp't's Rule
Constitutions." Resp't's Rule 1925(b)
1925(b)
Statement of
Statement of Errors
Errors Complained of on
Complained of on Appeal at 3,
Appeal at ¶ 3, 4. In
In an
an effort to
to particularize
particularize his
his
objections, Respondent
objections, Respondent provided
provided "particulars"
"particulars" numbered
numbered "a" through "h"
"a" through "h" as
as subheadings
subheadings to
to
Respondent's
Respondent's paragraph
paragraph 4. Id.
Id, These
These "particulars"
"particulars" include statements such
include statements such as:
as: "allowed
"allowed
Petitioner's attorney to engage
Petitioner's attomey engage in
in leading and testimonial narratives
leading and narratives in presenting questions to
presenting questions
witnesses... throughout several
witnesses...throughout several hearings from June
hearings from June 16, 2023 through
16, 2023 through October 30, 2023;"
October 30, 2023;"
66
"allowed Petitioner to present... hearsay and otherwise
present. .hearsay otherwise inadmissible testimony and/or documents
that were not authenticated and/or corroborated as required under the Rules of Evidence;"
Petitioner... to
"allowed Petitioner. to present grossly prejudicial
present grossly hearsay and otherwise inadmissible
prejudicial hearsay inadmissible testimony
testimony
documents;" "unduly
and documents;" "unduly restricted and/or prevented
prevented Respondent from cross-examining
Petitioner's witnesses;" denied
"denied Respondent's
Respondent's requests
requests for an order directing Petitioner's
Petitioner'g
witnesses to provide
provide Respondent with aacopy of the documents in their possession they were
testifying
testifying to but which they conveniently did not bring
bring to the hearing, yet the court allowed
Petitioner's witnesses to testified as to the contents of those hearsay
hearsay documents... [sic];" and
documents...[sic];"
"scheduled and conducted serial status hearings,
hearings, that were conducted in aamanner allowing
Petitioner to supplement the June 16, 2023 record
record..... in
.i n a
a manner contrary to the Rules of
Evidence,
Evidence, [etc.]."
[etc.]." Id.
Had Respondent identified the specific rules, codes, or statutes the Court's rulings
rulings
specific testimony
violated, the Court would still be left without reference to specific testimony which Respondent
Respondent
improperly allowed, or specific
argues was improperly specific questions
questions on cross-examination that Respondent
Respondent
argues were improperly
improperly precluded. The Court is tasked with scrutinizing
scrutinizing the notes of testimony
testimony
from each
each of the
the "several hearings
hearings from June 16,
I6, 2023 through
through October 30, 2023" to identify
identify
which rulings Respondent could be referring
referring to when he argues that his Constitutional rights
rights
have
have been
been violated by
by this
this Court. This is precisely the winnowing
is precisely winnowing which Appellant
Appellant is
is required
required to
provide
provide in his 1925(b) statement. Failure to do so is precisely
precisely why
why Superior
Superior Court has found
similarly undeveloped arguments to be waived.
The Court has
The Court endeavored to
has endeavored to address
address the
the substance of Appellant's
substance of Appellant's 1925(b)
1925(b) Statement.
Statement
The Court has looked to the arguments
arguments made in
in the February
February 5, 2024 oral argument
argument on
given that the
Respondent's Motion for Post Trial Relief. Arguments on this Motion are relevant given
written content of Respondent's
Respondent's Motion for Post Trial Relief is virtually
virtually identical to his 1925(b)
1925(b)
77
,----------------------------------------------
1
Statement. Accordingly, engineer" the basis for Respondent's
Accordingly, the Court will "reverse engineer" Respondent's appeal
appeal
from Respondent's
Respondent's stated bases for objection
objection and/or general
general complaint
complaint during
during the hearings
hearings
themselves in
themselves order to
in order discern to
to discern to the
the specific laws, codes,
specific laws, codes, statutes,
statutes, legal
legal rights or legal
rights or legal principles
principles
Respondent claims the Court violated.
that Respondent violated
2. This Court did not err in finding that the Property was not legally
legally occupied
occupied
pursuant to 68 P.S. $§1105(d)(1) as the term is defined in SeioliTureo,
Scioli Turco, Ie.,
Inc. v.
Prioleau.
Once the court adjudicating
adjudicating an Act
Aet 135 petition
petition is satisfied that
that service has been
perfected upon all Respondents
perfected upon and lienholders,
Respondents and an evidentiary
lienholders, an evidentiary hearing
hearing is scheduled on
is scheduled on the
the
merits of the
merits of petition. Section
the petition. Section 55of
of the
the Abandoned and Blighted
Abandoned and Blighted Property Conservatorship Act
Property Conservatorship Act
requires
requires that the Court
Count find, among
among other things,
things, that "the building
building has not been legally occupied
legally occupied
for at
for at least the
the previous
previous twelve
twelve months" before it
months" before it can
can appoint
appoint a
a Conservator. 68 P.S.
Conservator. 68 PS. §$
1105(d)(1).
1105()0D).
In Scioli Turco, Inc.
In Scioli v. Prioleau,
Inc, v, Prioleau, the Superior Court
the Superior Court affirmed
affirmed the
the trial court's finding
trial court's finding that
that
the petitioner
petitioner failed to prove
prove that the property had not been legally
legally occupied,
occupied, but disagreed
disagreed with
the lower court's
the lower court's interpretation of the
interpretation of the term "legally occupied."
term "legally occupied." See
See Scioli Turco, Inc.
Scioli Turco, Inc. v.
v. Prioleau,
Prioleau,
2019
2019 PA
PA Super 98, 207
Super 98, 207 A.3d
A.3d 346
346 (2019).
(2019). Although
Although the Superior Court
the Superior Court declined
declined to
to disturb
disturb the
the
finding that the respondent
trial court's finding respondent regularly spent nights
regularly spent nights at the Property,
Property, it found that
"legally occupied" as
"legally occupied" as used
used in the Act
in the Act does
does not
not mean merely that
mean merely that the
the property
property is
is lived
lived in by its
in by its
permission. Id.
owner or by someone with the owner's permission. Id. at 351. Rather, Act "unambiguously
Rather, the Act "unambiguously
requires proof that the building
building in question
question has not been lived in during
during the preceding
preceding twelve
months in conformity
months conformity with the laws regulating
with the regulating the right occupancy (emphasis
right to occupancy (emphasis added)."
added)." Id. at
Id. at
353. "This showing
353,"This showing may
may be made with evidence that no person
person has resided in the building...or
building ... or
88
I'
I that a
a statute or code provision
provision prohibits any person from living in
in the structure legally." Id
Id.
However, the Superior
Superior Court declined to overturn the trial court's finding that the
Property
Property had been legally occupied.
occupied. See [d.
Id. Though the petitioner in Scioli Turco v. Prioleau
y,Prioleau
argued on appeal that the property could not be legally occupied because the building was
argued
designated unsafe, the only support for its argument in the evidentiary record came from the
designated
testimony
testimony of Ryan
Ryan Spak,
Spak, aaneighbor
neighbor "who runs Project Rehab, aanonprofit program that had been
monitoring
monitoring the Property
Property since 2013." Id.
Id. at 348. Mr.
Mr. Spak testified that living in the property
would "`violate
would "violate every building code the City has,"'
has," but Mr. Spak was not qualified as an expert
and did not rely
rely upon
upon any official determination of uninhabitability, and Petitioner ultimately
presented
presented no evidence that an official had prohibited occupancy because of code violations. [d.
Id.
Here, Petitioner presented
presented evidence that the Property was designated an-unsafe
an unsafe structure
by the Department
by Licenses &
Department of Licenses & Inspections.
Inspections. At the June 16
I6 hearing, Petitioner introduced
Exhibits 5-017, 5091-094, and 6 the testimony of code inspector Thomas Rybakowski
6through the
("Inspector Rybakowski").
("Inspector Rybakowski"). Notes of Testimony, June 16, 2023
2023 ("N.T.
(N.T. I") at 37, 51-52 and 58.
Exhibit 5-017 is an Initial Notice of Violation and Order: Unsafe Building assessed on April, 6,
nd Order.
2018, declaring that "This Property has been declared Unsafe by the Department of Licenses and
Inspections,"
Inspections," explaining that "[a]n unsafe structure is
is one that is found to be dangerous to the
life,
life, health, property
property or safety...of
safety ... of the occupants of the structure" and identifying the location of
the structure as "entire site," specifically
the specifically "roofing
"roofing or roofing
roofing components... or any portion of the
components...or
roof framing ... with signs
framing.. signs of deterioration...incapable
deterioration ... incapable of supporting all nominal loads." Pet'r's
Ex. 5.017
Ex. 5-017. The Notice informs the property
property owner that he has "the right to appeal these
violations within five
five (5) days for Unsafe or Imminently Dangerous violations." Id. Exhibit 5-
091-094 is aViolation Notice and Order to Correct;
is a Correct: Unsafe dated January 15,
I5, 2022, which
5-091-
identifies the conditions in violation as the "main roof and soffit collapsing." Pet'r's Ex. 5.-09L-
9
9
--- -- ---------
094. As the April
April 2018 violation regarding
regarding the condition of the roof remained open at the time
of the January
January 2022 violation, the Court found
found that the condition of the roof described in
in April
April
2018 was unchanged
unchanged as of January 2022. The January 2022 violation remained open at the time
time
evidentiary hearing.
of the evidentiary hearing. N.T. at 51.
5L. Exhibit 66includes photographs taken during the January
2022 inspection
2022 of the
inspection of the Property.
Property.
Inspector Rybakowski
Inspector R ybakowski testified
testified that concern [was]
that "the area of concern [was] the structural members
members of
the soffit retum
return that is
is part
part of the main roof assembly[,]"
assembly[,]" which was
was "unsafe because the
structural members were open to the elements...[tJhey
elements... [t]hey showed signs of wood rot," which
condition was depicted in
was depicted in Exhibit
Exhibit 6-001. Id.
[d. at
at 55-56,
55-56, 59.
59. Though Inspector
Inspector Rybakowski
Rybakowski
acknowledged that some repair
repair work had apparently
apparently been performed
performed on the roof, "it has not been
signed off by aadesign
signed design professional. To the department... the repairs have not been completed."
department...the
Id. 66. The Department
[d. at 66. Department of Licenses
Licenses && Inspections
Inspections "want[s] to make sure that
that [the
[the roof] is able
to support nominal loads. At
At [the
[the January 2022 inspection,
inspection, [Respondent]
[Respondent] was spoken to and was
asked to provide
provide an engineer's report." Id. 55.
Id, at 55,
Though no official notice to vacate the premises
premises was posted
posted at the Property,
Property, the
Pennsylvania Administrative Code states that "[w
"[w]hen
[hen aabuilding code official determines the
existence of an unsafe condition, the building
building code official shall order the vacating of the
building or structure,"
building structure," and that the notice to the property owner "shall contain the order to vacate
property owner
the
the building,
building, structure or seal the
the equipment out of service and state the
the unsafe
unsafe conditions." 34
Pa. Code §$ 403.84(b),
Pa. Code 403.84(b), (c).
(c). It appears from
It appears from Inspector
Inspector Rybakowski's testimony that,
Rybakowski's testimony that, rather than
rather than
order Respondent
Respondent to vacate the building,
building, Respondent
Respondent was given the opportunity to appeal
appeal the
initial notice of violation, and then was personally
personally instructed by
by the onsite code enforcement
inspector and Inspector Rybakowski himself on the specific area of the roof that was unsafe and
what was needed
needed to comply with the
to comply the Department of Licenses
Licenses && Inspections.
Inspections. N.T.
N.T. I
I at
at 55, 60, 64;
10
10
Pet'r's Ex. 5-017. It is
Ex. 5.017.It is uncontroverted
uncontroverted that the
the Property
Property was
was deemed
deemed unsafe.
unsafe. Per
Per the
Pennsylvania
Pennsylvania Administrative Code,
Code, an
an unsafe building
building cannot be legally occupied.
legally occupied
Respondent
Respondent argues
argues that because he
he "has continually
continually resided in his Property,
Property, he met
met the
requirements
requirements of occupancy of the Property,"
Property," and makes note that "there was
was [nothing]
[nothing] issued by
L & Ito [Respondent]
L&Ito [Respondent ] telling
telling him that he could no longer
longer occupy
occupy the premises
premises and to evacuate
the premises."
the premises." Notes of Testimony,
Notes of Testimony, February
February 5, 2024
2024 ("N.T. IV") at
(NT.IV") at 5, 8. Further,
Further, Respondent
Respondent
"Petitioner did not offer anything other than this speculation on the part
argues that Petitioner Mr.
part of Mr
Passyn
Passyn [neighbor]
[neighbor] that Mr. Saunders did not occupy the Property."
Property." Andrew Passyn,
Passyn, the President
of the
of Board of
the Board of Stewards
Stewards of
of Saint
Saint Vladimir's Church ("Passyn"),
Vladimir's Church (Passyn"), who works in
who works in the Church
the Church
immediately
immediately next door to Respondent,
Respondent, testified that Respondent was not living at the Property,
impossible "even
that it was impossible "even [to]
[to] get
get on the Property
Property to access the doors," but that after the
Petition was filed, he began seeing
seeing Respondent
Respondent at the Property
Property "periodically; though
though he was not
there all the
there all the time ... when we
time..when we had
had record
record cold in December,
cold back in December, he
he was not there
was not there for weeks on
for weeks on
end." N.T. I
I at 97-98. Passyn's
at 97.98. testimony was
Passyn's testimony was rebutted by Respondent's
Respondent's witness,
witness, another
another
neighbor "who credibly
neighbor credibly testified that...she.
that... she....was
was seeing
seeing [Respondent]
[Respondent].....almost
almost every
every day. There
was no testimony whatsoever offered by Petitioner that rebuts or otherwise contradicts that
Id
testimony." Id.
testimony."
Findings
Findings of fact made during
during an evidentiary hearing
hearing in an Act
Aet 135 matter, including
credibility determinations
credibility determinations of
of witnesses
witnesses made
made by
by the
the lower court, are
lower court, afforded great
are afforded great deference.
deference. In
In
G & G Invs., LLC
g_&Glmys., v. Phillips Simmons Real
LL.Cy.Phillips Real Est. Holdings,
Holdings, the standard of review
review was described
as follows:
as follows
Our review in
Our in a
a non jury case is limited to
non-jury to whether the
the findings of thethe trial court are
supported by
supported competent evidence and whether the
by competent the trial
trial court committed error in in the
the
application
application of
of law.
law. We
We must
must grant
grant the
the court's findings
findings of
of fact
fact the
the same
same weight
weight and
and effect
effect
as the verdict of aajury
jury and, accordingly, may
accordingly, may disturb the non jury
non-jury verdict only
only if the
court's findings
court's are unsupported
findings are unsupported by
by competent evidence or
competent evidence or the
the court
court committed
committed legal
legal
error that affected the outcome of the trial. It is not the role of an appellate
appellate court to pass
pass
11
on the credibility of witnesses; hence we will not substitute our judgment
judgment for that of the
fact[-finder Thus,
fact[-]finder. Thus, the
the test
test we apply is
we apply is not whether we
not whether we would
would have
have reached
reached the
the same
same
result on the evidence presented,
presented, but rather, after due consideration of the evidence which
the trial court found credible, whether the trial court could have reasonably reached its
conclusion.
conclusion
G & G Invs., LLCy.
G&GInvs,LLC v. Phillips
Phillips Simmons Real Est. Holdings,
[Holdings, LLC,
LLC, 2018 PA Super 80,183
Super 80, 183 A:3d
A.3d
478 (2018)
472, 478 (2018) quoting Agostinelli
Agostinelli v.
v. Edwards,
Edwards, 98 A.3d
A.3d 695, 704
704 (Pa.Super.
(Pa.Super. 2014), appeal
2014), appeal
denied, 631
denied, 631 Pa.
Pa. 734, 113 A.3d
734, 113 A.3d 278
278 (2015)
(2015) (internal citations omitted).
(internal citations omitted).
Though the
the record does not
not disclose
disclose any instance in
in which Respondent
Respondent was affirmatively
was affirmatively
instructed to vacate the premises,
premises, the Court's finding that the premises
premises was not legally occupied
legally occupied
during the
during twelve months
the twelve prior to
months prior to the
the filing of the
filing of the Petition
Petition is supported by
is supported by sufficient evidence.
sufficient evidence.
The
The Property was the
Property was the subject of an
subject of an active
active unsafe
unsafe violation
violation dating
dating back to April
back to 6,
April 6th, 2018 at
at the
the
time
time of filing. N.T. I
I at 37. An unsafe structure is
is "one that is found to be dangerous
dangerous to the life,
life,
health,
health, property,
property, or safety
safety of the
the public occupants of the
public or the occupants the structure by
by not providing
providing
minunum safeguards to
minimum safeguards to protect... occupants... because such
protect...occupants...because such [structure] contains[s] ... such faulty
[structure] contains[s]...such faulty
construction or unsafe foundation that partial possible." Id. According
partial or complete collapse is possible." According to
the Pennsylvania
Pennsylvania Administrative
Administrative Code, aadeclaration that aastructure is
is unsafe
unsafe must
must be
accompanied by
accompanied by aanotice to vacate. 34 Pa. Code
Code §$ 403.84(b),
403.84(b), (c).
(e). Under Pennsylvania
Pennsylvania law,
law, the
structure
structure cannot be legally occupied.
be legally occupied.
Nevertheless, the Court considered the fact that the Property
Property was never posted
posted with aa
notice to vacate, or that any notice to vacate that may have been posted
posted was not included in
j
Petitioner's evidence,
Petitioner's evidence, as
as well as the
well as testimony of
the testimony of Respondent's witness, Joan Elliott.
Respondent's witness, Elliott. Ms. Elliott,
Elliott,
aaneighbor of Respondent's,
neighbor of testified that
Respondent's, testified that she
she often
often saw Respondent coming
saw Respondent coming and
and going,
going, that
that they
they
"talked very often," and that she has "never known him to be aanuisance."
talked nuisance" N.T.
N.T, I
I at 124-125.
Elliott also testified that she lives four houses down and across the street from Respondent,
Respondent, and
has only observed
has only observed his
his Property
Property from the street.
from the street. Id. at 128.
[d. at
12
In
In weighing
weighing the credibility of Ms.
the credibility Me. Elliott's testimony,
testimony, and
and whether it is
whether it is probative of the
the
fact of Respondent's
Respondent's continuous residence in the Property, the Court considered the conflicting
testimony
testimony of Passyn. Id. at 91.
Passyn. [d. 9L. Passyn
Passyn testified that he knew Respondent
Respondent did not reside at the
Property "by personal
Property "by personal observation," that he is there three to four times a
aweek, and that the
Church has
Church has surveillance cameras. [d,
surveillance cameras. Id. at
at 98.
98. A
A few months after
few months after the Church filed
the Church filed the
the Petition,
Petition,
Passyn
Passyn testified "[w]e started
testified that "[wle started seeing
seeing more
more and more of Respondent,"
Respondent," that
that "[h]e
"[hJe was there
periodically,
periodically, but not all
but not all the
the time ... for example,
time...for example, when we had
when we the record cold
had the cold back
back in
in December,
December,
he
he was not
not there
there for
for weeks
weeks on end."
end," Id. Though
Though he frequently
frequently observed Respondent
Respondent at
at the
the
Property,
Property, it was Passyn's
Passyn's belief that Respondent
Respondent used the Property
Property to store personal
personal property
property
which filled both the interior and exterior of the Property
Property to the point that there were no
functioning points
functioning points of
of ingress
ingress or
or egress.
egress. Id. at
at 93-94.
93-94.
During Petitioner's
During opening statement,
Petitioner's opening statement, counsel for
for Petitioner
Petitioner argued that
that "the evidence is
is
going to
going to show
show that the Property
that the Property was
was not
not aaresidence...but
residence... but that
that [Respondent] has periodically
[Respondent] has periodically
stayed at
stayed at the
the Property."
Property." N.T.
N.T. IIat
at 8.
8. The
The Court
Court found
found that
that the weight of
the weight of the evidence supports
the evidence supports this
this
interpretation.
interpretation. Petitioner's depict aaproperty
Petitioner's exhibits depict property so congested
congested with
with debris and scrap material
and scrap material
that it is implausible
implausible that aaperson
person could have traversed through
through it, let alone habitually
habitually resided
there, without great
great difficulty.
difficulty. Further, the condition of the roof of the Property
Property was declared to
be unsafe,
be rendering the
unsafe, rendering the Property
Property not
not legally occupiable as
legally occupiable as a matter of
a matter of law
law according
according to
to the
the
Pennsylvania Administrative Code.
Pennsylvania Administrative Code. Elliott testified that
Elliott testified she believed
that she believed that
that Respondent
Respondent lived
lived in
in the
the
Property, but had
Property, but had never
never been
been on or inside
on or the Property
inside the and that
Property and that she
she lived
lived four houses down
four houses down and
and
the street. Her
across the Her testimony
testimony that she often saw Respondent
Respondent outside of
of the
the Property
Property does not
not
rebut
rebut Passyn's,
Passyn's, a neighbor's, testimony
a nearer neighbor's, testimony that
that Respondent
Respondent frequently
frequently visited
visited the
the Property
Property to
unload
unload materials
materials on its
its grounds,
grounds, but
but did continuously reside
did not continuously reside there.
there. The
The Court reasonably
reasonably
concluded that Respondent
Respondent did not occupy
occupy the Property,
Property, and that Respondent
Respondent could not legally
legally
13
occupy the
occupy the Property.
Property
properly found
3. The Court properly found that
that Petitioner
Petitioner established the conditions for
for
Conservatorship required by
Conservatorship required by P.S. $§1105(d)(5).
1105(d)(5).
Section 5(d)(5)
Section of the
5(d(5) of Abandoned and
the Abandoned and Blighted
Blighted Property Conservatorship Act
Property Conservatorship Act requires
requires aa
finding that Petitioner has established at least three of aalist of nine enumerated conditions in
finding
order to
order to appoint
appoint a
a Conservator:
Conservator:
(i) building or physical
(i) The building physical structure is apublic
is a public nuisance.
nuisance
(ii) The building is
The building is in
in need
need of substantial rehabilitation and no no rehabilitation
rehabilitation has
has taken
taken
place
place during
during the previous
previous 12 months.
months
(iii) The
(iii) The building
building isis unfit for human habitation, occupancyoccupancy or use.use
(iv) The
(iv) The condition and vacancy
vacancy of the building
building materially
materially increase the risk of fie fire to the
building and to adjacent
building adjacent properties.
properties.
(v) The building
(v) building is subject to unauthorized entry leading to potential potential health and safety
hazards and one of the following applies:
following applies
(A) The
(A) The owner
owner has failed to
has failed to take
take reasonable
reasonable and and necessary
necessary measures
measures to secure the
to secure the
building.
building
(B) The municipality
municipality has secured the buildingbuilding in order to prevent
prevent such hazards after
the owner has failed to do so so.
(vi) The
(vi) The property
property isis an
an attractive
attractive nuisance
nuisance to to children, including,
including, but
but not
not limited
limited to,
to, the
the
presence
presence of abandoned wells, shafts, basements, excavations and unsafe structures structures.
(vii) The presence
(vii) presence of vermin or the accumulation of debris, uncut vegetation vegetation or physical
physical
deterioration of the
deterioration grounds has
the structure or grounds has created
created potential
potential health
health and
and safety hazards
hazards and
the owner has failed
the owner failed to
to take
take reasonable and necessary
reasonable and necessary measures
measures to to remove
remove the
the hazards.
hazards.
(viii) The
(viii) dilapidated appearance
The dilapidated appearance or other
other condition
condition of the the building
building negatively
negatively affects
affects the
the
economic well-being
well-being of of residents
residents and
and businesses
businesses in close proximity
proximity to to the
the building,
building, including
including
decreases in property
property value and loss of business, and the owner has failed to take reasonable
necessary measures to remed
and necessary remedy y appearance or the condition.
(ix)
(ix) The
The property
property isis an
an attractive
attractive nuisance
nuisance forfor illicit
illicit purposes,
purposes, including
including prostitution,
prostitution, drug
drug
use and
and vagrancy.
vagrancy
I
I
68 Pa.
68 Pa. Stat.
Stat. Ann.
Ann. §$ 1105
1105 (West). The Court
(West). The Court found
found that Petitioner established
that Petitioner established P. S. §$ 1105(d)(5)(i),
P.S. 1105(d)¥5¥9),
(ii), (iv)
(in), (iv) and
and (vii).
(vi)
Respondent argues that
Respondent argues that "not a
a single
single witness
witness or person
person was
was called from the
the
neighborhood,
neighborhood, from
from the community, from
the community, from the church or
the church or any
any place else to
place else corroborate," and
to corroborate," and asks
"...where's
where's the testimony any eredible
testimony from any credible source other than Mr. Passy?
Passyn? No testimony
testimony from
14
14
the --— no witnesses,
witnesses, no officials,
officials, not even L &I,
& I, that -— that the Property
Property presented aadanger to the
public." N.T. IV at
public." at 12, 17.
17. Counsel
Counsel for
for Respondent
Respondent "challenge[d] Your Honor
"challenge[d] Your and anyone
Honor and anyone else
else to
to
say
say that,
that, when
when looking
looking at
at that
that picture, any pictures
picture, any pictures presented,
presented, that
that it showed blight."
it showed blight." N.T. at
NT IV at
14-15.
14.15. When
When asked
asked to
to be
be more specific about
more specific about which
which pictures
pictures he referenced, counsel
he referenced, counsel for
for
Respondent stated that
Respondent that "the pictures speak for themselves." Id. Crucial to Respondent's argument
pictures speak
"the natural barriers and the fencing
are the fencing and all of that around the Property"
Property" which obstructed
"any public
"any public view of the Property.
Property. And, therefore, how could you
you say that it's blighted when you
can't see it?"
it?" Id. at 16.
Id. at
Findings
Findings of fact made during
during an evidentiary
evidentiary hearing
hearing in an Act
Aet 135 matter, including
credibility determinations of witnesses made by
credibility by the lower court, are afforded great deference.
deference. In
G & G Invs., LLC v. Phillips Simmons Real
_&Glnvs,LLCy.Phillips Est. Holdings,
Rea!Est. Holdings, the standard of review was described
as follows:
as follows:
Our review in aanon
review in jury case is
non-jury is limited
limited to
to whether the findings
whether the of the
findings of the trial court are
trial court
supported by
supported competent evidence
by competent and whether
evidence and whether the trial court
the trial court committed
committed error
error in
in the
the
application of law. We must grant
application grant the court's findings
findings of fact the same weight
weight and effect
as the verdict of aajury
jury and, accordingly,
accordingly, may
may disturb the non jury verdict only if the
non-jury
court's findings
findings are unsupported
unsupported by competent evidence or the court
by competent count committed legal
legal
error that affected the outcome of the trial. It is not the
error that affected the outcome of the trial. It is not the role of
of an appellate court to
appellate court to pass
on the credibility of witnesses; hence we will not substitute our judgment judgment for that of the
fact[-]finder.
facet[-finder. Thus,
Thus, the
the test
test we
we apply
apply is not
not whether
whether we we would
would have
have reached
reached the
the same
result on the evidence presented,
presented, but rather, after due consideration of the evidence which
the trial court found credible, whether the trial court could have reasonably reached its
conclusion.
conclusion.
G & G Invs., LLC v.
G&Glvs.,LLC Phillips Simmons Real Est.
• Phillips Est. Holdings, LLC, 2018 PA Super 80,
80,183
183 A.3d
472,478
472, 478 (2018) quoting Agostinelli
(2018) quoting Agostinelli v. Edwards,
Edwards, 98 A.3d 695, 704
704 (Pa.Super.
(Pa.Super. 2014), appeal
appeal
denied, 631 Pa. 734, 113 A.3d 278
278 (2015)
(2015) (internal
(intemal citations omitted).
The Court's findings
findings of blight
blight will be addressed individually.
individually.
(i)
(i) The building or physical
The building physical structure is a
apublic
public nuisance.
15
The statute
The statute defines
defines "public
"public nuisance" in section
nuisance" in section 1103:
1103: "[a]
fa] property that, because
property that, of
because of
physical condition or use,
physical use, has been declared by
by the appropriate
appropriate official aapublic
public nuisance in
in
accordance with the local housing, building, health, fire or related code, or is determined to be aa
housing, building,
public
public nuisance by the
nuisance by the court."
At
At common
common law, "[a] public
law, "[a] public nuisance
nuisance is
is an unreasonable
unreasonable interference with aaright
right
common to
to the
the general public; circumstances that constitute a
general public; a public nuisance
nuisance are, among other
things, conduct that
things, that is
is proscribed
proscribed by
by statute or ordinance, or conduct that interferes
interferes with public
public
peace." Comonwealthy.Ebaugh,
peace." Commonwealth v. Ebaugh, 783 A.2d 846,
783 A.2d 846, 850
850 (Pa.
(Pa. Commw. Ct. 2001);
Commw. Ct. 2001); Muehlieb v.
Muehliebv,
City of Philadelphia,
City Philadelphia, 574 A.2d 1208
1208 (Pa.
(Pa. Commw. Ct. 1990).
The Court reasonably
reasonably found Property was
found that the Property was a public nuisance
a public nuisance under both
both the
statutory and common law definitions. The main structure on the building
statutory building was declared unsafe in
2018 by the
2018 by the Department of Licenses
Department of Licenses && Inspections. N.T. I
Inspections. N.T. at 37,
I at 37, 51-52 and 58;
51-52 and 58; Ex. 5-039.
5-039.AA rear
rear
structure on the
the Property
Property was declared
declared imminently dangerous, and was
imminently dangerous, was ultimately demolished
demolished in
in
2021 by City of Philadelphia
by the City Philadelphia after it began to slide onto aaneighbor's
it began neighbor's property.
property. Id. at 41-43.
Prior
Prior to
to the City's undertaking
the City's undertaking the demolition of
of the
the rear
rear structure,
structure, Respondent
Respondent signed
signed aaFinal
Final
Order and Injunction
Injunction to
to Comply
Comply Violations stipulated that
Violations which stipulated that he
he would repair the
would repair garage
the garage
structure, and that
structure, subject premises
that "the subject premises is
is a
a nuisance
nuisance per
per se and presents
presents a
a hazard
hazard to the safety,
safety,
health, and welfare of the neighbors, public in general."
neighbors, and the public general." Ex. 5-19-020. Appropriate
Appropriate
officials made
officials made these
these findings, as well
findings, as as others
well as others related
related to
to the debris on
the debris on the
the Property, that satisfy
Property, that satisfy
the definition of public
public nuisance
nuisance supplied
supplied by Act 135.
by Aet
Contrary to
Contrary to Respondent's argument that
Respondent's argument that no
"no officials,
officials, not even L
not even L&& II [testified] that the
[testified] that the
Property
Property presented
presented aadanger
danger to the public,"
public," Inspector
Inspector Rybakowski
Rybakowski testified that "[t]here
"[tJhere [were]
[were]
open junction
junction boxes, open outlets,
boxes, open outlets, exposed
exposed wire ... aheavy
wire...a heavy fire load in the interior of the
16
Property... combustible materials,
Property...combustible materials, [and]
[and] propane
propane tanks"
tanks" when
when the
the Property
Property was inspected in
was inspected in
2022. N.T.
N.T IV at 12, 17; N.T.
IT;N. T. IIat 20. In order to address these concerns, "the CLIP
CLIP (Community
(Community
Life
Life Improve
Improve Project)
Project) has gone to
has gone to the
the Property
Property several times... through court order
times...through order.....and
and
Id. 31.
removed the debris." [d.
City of Philadelphia
The City Philadelphia undertook
undertook demolition of imminently dangerous
of the imminently dangerous rear garage
garage
I
structure, declared the main structure unsafe because of its defective roof, and cleared dangerous
dangerous
flammable materials from
flammable materials the interior
from the and exterior
interior and exterior of
of the
the Property. Given this
Property. Given official action,
this official action, and
and
Passyn's testimony of his
Passyn's testimony his attempts
attempts to persuade Respondent
to persuade Respondent to
to clear the materials
materials from
from the
the
Property
Property and
and that Respondent
Respondent erected an illegal
illegal fence
fence covered with
with aablue
blue tarp
tarp in order to conceal
the
the three to six
three to six foot
foot high accumulations
accumulations of
of scrap
scrap and
and combustible
combustible materials
materials from
from neighbors'
neighbors'
view, (N.T. IIat 94), the Court reasonably
view,(N.T. reasonably found that the Property
Property poses
poses a
a public
public nuisance.
(ii)
(ii) The building is in need
building is ofsubstantial rehabilitation and no rehabilitati
need of rehabilitation
no took
place in
place in twelve months
months prior the filing
prior to the of the
filing of the petition.
petition
"Substantial rehabilitation" is defined in the act as "repairs, replacements
Substantial replacements and
improvements"
improvements" that exceed 5% of the property's
exceed ""115% property's value after completion
completion of all repairs,"
repairs," or
where
where "more than one major
major building
building component is being replaced,"
replaced," which includes "roof
structures" and
structures" and "wall or floor
"wall or structures." P.
floor structures." PS,S. $§ 1103.
1103
The main
The main physical
physical structure
structure on
on the
the Property
Property was declared unsafe
was declared by the
unsafe by the Department
Department of
Licenses && Inspections.
Licenses Inspections. N.T.
N.T I 51. The detached garage
I at 51 garage structure was declared imminently
imminently
dangerous on March 9, 2021, eight days after the Petition was filed. Ex.
Ex. 5-039. The conditions of
the garage
garage structure existed since at least August
August 2019
2019 when
when the City of Philadelphia
the City brought aa
Philadelphia brought
complaint against
complaint against Respondent,
Respondent, resulting
resulting in an Injunction Comply Violations with which
Injunction to Comply
17
Respondent
Respondent failed to comply. Ex.
to comply. Ex. 5-019.
5-019. Ultimately,
Ultimately, the City demolished
the City demolished the
the stricture. N.T. I
structure. N.T. at
I at
43-44.
43.44.
Inspector Rybakowski
Inspector testified to
Rybakowski testified to Exhibit
Exhibit 6-018, "a photograph taken
"a photograph of the
taken of interior of
the interior of
the Property
the showing that
Property showing there is
that there is aasection
section of
of the plaster work
the plaster that has
work that has fallen or is
fallen or dislodged
is dislodged
from the interior section" which indicates "a
"a lack of maintenance and that there is an issue with
the
the interior structure." Ex.
interior structure." 6-018; N.T.
Ex. 6-018; N.T. I at 28-29.
I at 28-29. Though
Though Inspector
Inspector Rybakowski acknowledged
Rybakowski acknowledged
that "some repair
that "some repair work...was
work ... was done
done to
to the structural members"
the structural members" between the initial
between the initial unsafe
unsafe
violation in
in April
April 2018 and the January
January 2022 follow-up
follow-up inspection
inspection to which Inspector
Inspector
Rybakowski
Rybakowski referred
referred in his
his testimony,
testimony, Respondent
Respondent offered no evidence
offered no evidence about
about when
when this
this work
work
was done or its substance. [d.
Id. at 55. Inspector Rybakowski's
55. Inspector Rybakowski's concerns about the structure
remained,
remained, as
as "there was no
no permit
permit pulled
pulled for
for the repair
repair of that
that assembly"
assembly" and no
no assurance "that
"that
the
the work was done adequately."
adequately."
Further,
Further, at
at the
the time
time the Petition was
the Petition filed, the
was filed, detached garage
the detached garage structure
structure was
was in
in a
a
condition that
that eight
eight days
days later
later would
would be declared imminently
imminently dangerous,
dangerous, "had already
already
collapsed... into the neighbor's
collapsed...into neighbor's yard,"
yard," and
and which Respondent
Respondent had agreed to demolish 13 months
had agreed
prior. Id.
[Id, at 42-43.
Both the main and
Both the and detached structures at
detached structures at the Property were
the Property were in
in need of substantial
need of substantial
rehabilitation.
rehabilitation. The
The Department of Licenses
Department of Licenses && Inspections
Inspections designated
designated them
them unsafe and
unsafe and
imminently dangerous,
imminently dangerous, respectively.
respectively. Though Respondent performed
Though Respondent performed some
some rehabilitation
rehabilitation to
to the
the
roof of the
roof of main structure,
the main structure, the
the detached garage structure
detached garage structure was
was left
left to
to the city to
the city to demolish, and
demolish, and
nothing
nothing in the record indicated when the roofing work took place,
place, or whether it remediated the
unsafe
unsafe conditions.
conditions.
(iii)
(iii) condition of
The condition of the building materially increased
building materially increased the risk offire
risk offire to the building
building
18
and adjacent buildings.
Inspector Rybakowski testified that "[t]he
Inspector Rybakowski "[t]he interior of the Property
Property had a
a large
large amount of
combustibles," that
combustibles," that there "were open
there "were open junction boxes, open
junction boxes, open outlets,
outlets, exposed
exposed wire," and there
wire," and "was
there "was
aaheavy fire load
heavy fire load in
in the interior of
the interior of the
the Property."
Property." N.T.
N.T. IIat
at 20.
20. In
In Exhibit 6-022, he
Exhibit 6-022, he identified
identified aa
propane
propane tank
tank and various chemicals. [d.
various chemicals. Id. at 25. Finally,
Finally, Inspector
This text is long and has been trimmed here. Open the source document for the complete record.