Opinion

St. Vladimir Ukrainian v. Saunders, S.

Court
Superior Court of Pennsylvania
Filed
Apr 16, 2025
Status
Unpublished
On the bench
Stevens
Cited by
0 cases
Authority
More cited than 34.8%

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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

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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.

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