# M. Kuziak v. Borough of Danville and Borough of Danville Rental Registration and Property Maintenance Hearing Board

> Commonwealth Court of Pennsylvania · September 29, 2015 · 125 A.3d 470

URL: https://www.frixlaw.com/law-library/cases/3005501

## Case

- **Full name:** Michael KUZIAK, Appellant v. BOROUGH OF DANVILLE and Borough of Danville Rental Registration and Property Maintenance Hearing Board
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** September 29, 2015
- **Citations:** 125 A.3d 470; 2015 Pa. Commw. LEXIS 418; 2015 WL 5687678
- **Precedential status:** Published
- **Opinion:** Opinion by Patricia
- **Judges:** McGinley, Simpson, McCullough
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3005501

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Kuziak, :
Appellant :
: No. 2309 C.D. 2014
v. :
: Argued: September 14, 2015
Borough of Danville and Borough :
of Danville Rental Registration and :
Property Maintenance Hearing Board :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY
JUDGE McCULLOUGH FILED: September 29, 2015

Michael Kuziak appeals from the November 13, 2014 order of the Court
of Common Pleas of the Twenty-Sixth Judicial District, Montour County Branch
(trial court) denying his appeal from the decision of the Borough of Danville Rental
Registration and Property Maintenance Hearing Board (Board) and directing him to
pay rental registration fees for 2013 in the amount of $2,925.00, plus a civil penalty
in the amount of $300.00.

Facts and Procedural History
The underlying facts of this case are not in dispute. Kuziak is the owner
of 39 rental units in the Borough of Danville (Borough). On December 13, 2011, the
Borough enacted Ordinance 508, entitled “The Borough of Danville Rental
Registration Ordinance.” (Reproduced Record (R.R.) at 6a.) Ordinance 508 became
effective January 1, 2012, and required owners of residential rental units in the
Borough to apply for and obtain a rental occupancy license for each rental unit. The
license had an annual term running from January 1 to December 31 of each respective
calendar year. In order to obtain this license, owners were required to pay the
Borough an annual license fee to be established by Borough resolution. For calendar
year 2012, the Borough established an annual license fee of $75.00, with a $25.00
late fee for all fees paid after March 31. The failure to apply for a license and pay the
necessary fees on or before July 31 constituted a violation of Ordinance 508, except
for calendar year 2012, at which time a citation would be filed that would include the
cost of the licensing fees.
On December 31, 2012, Kuziak submitted a payment to the Borough in
the amount of $1,950.00, representing a payment of $50.00 for each of his 39 rental
units.1 On July 9, 2013, the Borough enacted Ordinance 513, which became effective
immediately, and repealed Ordinance 508 in its entirety. Ordinance 513 created
section 141 of the Borough Code, which reenacted the Borough’s 2012 “Rental
Registration Ordinance,” with several additions, but imposed identical licensing fees.
By letter dated August 10, 2013, Kuziak forwarded a payment of
$975.00 to the Borough for what he characterized as the “balance due of $25 per unit
for 2013 Danville Borough Rental Registration.” (R.R. at 82a.) Kuziak noted that he
had previously submitted a payment of $1,950.00 to the Borough and stated that “[a]s
you have an obligation to restore me and all other landlords who paid these fees to the
status quo ante, I expect that this amount will be applied to 2013.” Id. By letter
dated August 23, 2013, Jackie Hart, the Borough’s Code Administrator,
acknowledged receipt of Kuziak’s payment of $975.00 and repeal of Ordinance 508,

1
The record is unclear as to why the Borough accepted Kuziak’s payment of $50.00 per unit
as payment in full for calendar year 2012, given that Ordinance 508 imposed a $75.00 fee per unit,
or why the Borough failed to impose a late fee for his December 31, 2012 payment.

2
but reminded Kuziak that the new ordinance imposed identical fees, including a late
fee of $25.00 for any fees paid after July 31.
After receiving no response, Hart sent Kuziak a formal notice of
violation letter dated October 8, 2013, stating that he owed a fee of $100.00 for each
of his 39 residential rental unit for 2013, a total of $3,900.00. After deducting the
$975.00 submitted by Kuziak on August 10, Hart requested that Kuziak remit the
balance of $2,925.00 within 20 days to avoid the issuance of a citation. Kuziak
subsequently filed a notice of appeal with the Board, which held a hearing on
November 13, 2013.
Kuziak testified at the hearing but did not present any evidence. He
reiterated his previous allegation that the repeal of Ordinance 508 required the
Borough to return him and all other landlords to the status quo, which includes a
credit for his payment of $1,950.00 made under the prior ordinance. Kuziak testified
as to his belief that Ordinance 508 was repealed because of improper publication.
Kuziak also alleged that Ordinance 513, insofar as it requires all owners of residential
rental units to register beginning with calendar year 2012, was retroactive and
constituted an ex post facto law. Kuziak then stated that he was “not going to make
anymore legal arguments here. I’m going to save that for the next level, if need be.”
(R.R. at 50a.)
Hart also testified before the board. She confirmed that Kuziak operates
39 residential rental units in the Borough and that he registered and paid the
necessary fees for each of these units in calendar year 2012. Hart stated that while
Kuziak owed fees totaling $3,900.00 for his 2013 rental registrations, he had only
remitted a payment in the amount of $975.00 in August 2013. Hart identified the
letter she received from Kuziak with this payment, as well as the follow-up letters she
sent to him stating that he still owed $2,925.00 for calendar year 2013. On cross-

3
examination, Hart noted that Ordinance 513 was enacted on July 9, 2013, and that it
repealed Ordinance 508 in its entirety. On re-direct examination, Hart testified that
Ordinance 508 remained in effect until its repeal and that Ordinance 513 imposed the
identical fee schedule. The letters identified by Hart were then admitted into
evidence before the Board without objection.
At the conclusion of the hearing, the Board voted to deny Kuziak’s
appeal. Five days later, on November 18, 2013, the Board issued a written decision
addressing the findings referenced above. Citing section 1976 of the Statutory
Construction Act of 1972 (Statutory Construction Act), 1 Pa.C.S. §1976, the Board
concluded that the repeal of Ordinance 508 at the time that Ordinance 513 was
enacted did not affect “any act done, or right existing or accrued, or affect any civil
action pending to enforce any right under the authority of the ordinance repealed.
The enforcement of the provisions regarding fees for rental registration may be
enforced by the Code Enforcement Officer under the repealed Ordinance, or under
the provisions of the new Ordinance.” (R.R. at 91a.) The Board further concluded
that under either ordinance provision, Kuziak owed $3,900.00 for his 2013 rental
registration fees, with a balance due and owing of $2,925.00.
Kuziak thereafter filed an appeal with the trial court, alleging that: 1) the
Board’s decision was arbitrary and capricious; 2) the Board erred in failing to
conclude that he was entitled to credit for the fees he paid in 2012; 3) Ordinance 513
was retroactive and, hence, invalid; and 4) Ordinance 508 was void as it was enacted
in violation of Pennsylvania’s Sunshine Act, 65 Pa.C.S §§701-716, i.e.,
advertisement of a public meeting relating to this ordinance was not published in the
newspaper of general circulation with the largest paid circulation in the Borough.
The Board forwarded the record to the trial court on February 10, 2014.
The trial court heard argument, off the record, on October 9, 2014, at which time the

4
trial court directed the parties to brief the issues. By opinion and order dated
November 13, 2014, the trial court denied Kuziak’s appeal and directed him to pay
rental registration fees for 2013 in the amount of $2,925.00, plus a civil penalty in the
amount of $300.00. The trial court addressed the issues raised by Kuziak in reverse
order. The trial court first held that Ordinance 508 was valid and enforceable as
Kuziak “presented absolutely no evidence that [the Borough] failed to properly
advertise the meeting at which Ordinance 508 was adopted, as required by the
Sunshine Act. The transcript is devoid of any discussion of that issue in any regard.”
(R.R. at 94a.) Citing section 1976 of the Statutory Construction Act, the trial court
stated that Ordinance 508 remained enforceable “through and to the date of its repeal
on July 9, 2013, and amounts continue to be collectible after that date for time
periods prior to that date.” (R.R. at 95a.)
Since amounts due under Ordinance 508 continued to be collectible for
time periods prior to July 9, 2013, and amounts due under Ordinance 513 were
collectible for time periods after its adoption on that date, the trial court concluded
that Ordinance 513 was not retroactive. Hence, the trial court held that Kuziak’s third
issue was moot and irrelevant. The trial court also held that Kuziak’s second issue
must fail because the fees set forth in both ordinances remained due and owing at all
relevant times. Finally, the trial court held that the Board’s decision was not arbitrary
or capricious because the Board was correct in denying Kuziak a credit.
Kuziak filed a notice of appeal with the trial court. In his statement of
errors complained of on appeal, Kuziak alleged that the trial court erred in failing to
conclude that Ordinance 508 was enacted in violation of the Sunshine Act and that
Ordinance 513 was retroactive. Kuziak also alleged that the trial court erred in
failing to conclude that application of either ordinance “[i]mpairs the obligations of
residential lease contracts, violating the United States and Pennsylvania

5
constitutions” and/or violates the rights of renters under the Fourth and Fourteenth
Amendments.
Kuziak further alleged that the trial court erred in failing to conclude that
either ordinance was unreasonable for a myriad of other reasons, including that they
were overbroad; improperly imposed vicarious liability on owners for the behavior of
tenants; improperly authorized the withholding of an occupancy license if the
Borough maintains a municipal claim against an owner; improperly authorizes the
suspension, revocation, or withholding of an occupancy license as a means of
collecting a municipal debt; punishes owners/renters who exercise their right to
refuse warrantless searches or First Amendment rights; and improperly mandates
evictions for ordinance violations. The trial court issued an opinion in accordance
with Rule 1925(a)(1) of the Pennsylvania Rules of Appellate Procedure incorporating
its previous opinion dated November 13, 2014.

Discussion
Section 754 of the Local Agency Law
On appeal,2 Kuziak first argues that the trial court erred and/or abused its
discretion in failing to conduct a de novo hearing regarding the alleged procedural
defects in the enactment of Ordinance 508. We disagree.
Section 754 of the Local Agency Law sets forth the following procedure
to be followed by a court of common pleas in reviewing a local agency decision:

2
When the trial court does not take additional evidence, our scope of review of a local
agency’s adjudication is limited to determining whether constitutional rights were violated, an error
of law was committed, or the necessary factual findings are supported by substantial evidence.
Spencer v. City of Reading Charter Board, 97 A.3d 834, 839 (Pa. Cmwlth. 2014); 2 Pa.C.S.
§754(b). An agency abuses its discretion when its findings of fact are not supported by substantial
evidence. Residents Against Matrix v. Lower Makefield Township, 845 A.2d 908, 910 (Pa. Cmwlth.
2004).

6
(a) Incomplete record. --In the event a full and complete
record of the proceedings before the local agency was not
made, the court may hear the appeal de novo, or may
remand the proceedings to the agency for the purpose of
making a full and complete record or for further disposition
in accordance with the order of the court.

(b) Complete record. --In the event a full and complete
record of the proceedings before the local agency was
made, the court shall hear the appeal without a jury on the
record certified by the agency. After hearing the court shall
affirm the adjudication unless it shall find that the
adjudication is in violation of the constitutional rights of the
appellant, or is not in accordance with law, or that the
provisions of Subchapter B of Chapter 5 (relating to
practice and procedure of local agencies) have been
violated in the proceedings before the agency, or that any
finding of fact made by the agency and necessary to support
its adjudication is not supported by substantial evidence. If
the adjudication is not affirmed, the court may enter any
order authorized by 42 Pa.C.S. §706 (relating to disposition
of appeals).
2 Pa.C.S. §754(a)-(b). Kuziak asserts that section 754 requires a court of common
pleas to either hold a de novo hearing under section 754(a) or hold a hearing to take
testimony and evidence solely on his allegations of error under section 754(b).
Kuziak misinterprets these provisions.
A trial court is not obligated to conduct a de novo hearing unless a full
and complete record of the proceedings was not made before the local agency.
Geissler v. Board of Commissioners of Upper Dublin Township, 463 A.2d 1284,
1286 (Pa. Cmwlth. 1983). This Court has defined a “full and complete record” as “a
complete and accurate record of the testimony taken so that the appellant is given a
base upon which he may appeal and, also, that the appellate court is given a sufficient
record upon which to rule on the questions presented.” In re Thompson, 896 A.2d
659, 668 (Pa. Cmwlth. 2006), appeal denied, 916 A.2d 636 (Pa. 2007) (citations

7
omitted). Only if the trial court determines that the record before the agency is
incomplete, does it have discretion to hear the appeal de novo or remand to the local
agency. Retirement Board of Allegheny County v. Colville, 852 A.2d 445, 450 (Pa.
Cmwlth. 2004).
Situations in which a record has been deemed incomplete include such
instances where the record fails to contain a transcript of the proceedings before the
local agency, McLaughin v. Centre County Housing Authority, 616 A.2d 1073 (Pa.
Cmwlth. 1992), or where a party refuses to provide relevant and necessary
documentation to the local agency, School District of the City of Erie v. Hamot
Medical Center, 602 A.2d 407 (Pa. Cmwlth. 1992).3 However, “[t]he record before
the local agency is not considered incomplete based solely on [a party’s] failure to
present evidence available at the hearing.” Colville, 852 A.2d at 451. Indeed, in
Colville, we stated that “[t]he trial court has no authority under section 754(b) of the
Local Agency Law to remand a matter to the local agency to give the appellant
another opportunity to prove what he or she should have proved in the first place.”
Id. (citations omitted).
In the present case, the Board conducted a hearing on November 13,
2013. Kuziak testified at this hearing and was provided with a full opportunity to
address any arguments he wished to raise and present evidence in support thereof.
However, Kuziak himself opted to limit his testimony and not present any evidence
during the Board’s hearing.4 The hearing also included testimony from Hart. The

3
The adequacy of the local agency's record is a matter committed to the discretion of the
trial court. City of Philadelphia v. Murphy, 320 A.2d 411, 414 (Pa. Cmwlth. 1975).

4
The lack of testimony or supporting evidence relating to Kuziak’s allegations of illegality
and unconstitutionality of Ordinance 508 or 513 does not, as Kuziak asserts, render the Board’s
proceedings incomplete. Again, Kuziak had every opportunity to present the same.

8
Board forwarded the record, including the full transcript of its hearing, to the trial
court. Upon review of the record, the trial court properly concluded that the same
was full and complete and that neither a de novo hearing nor a remand was necessary
under section 754(a) of the Local Agency Law.
The trial court proceeded with its review under section 754(b).
Contrary to Kuziak’s assertion, this section does not require the trial court to conduct
a hearing and receive further testimony and evidence. Indeed, such actions are belied
by the heading of this section, “Complete record.” Rather, section 754(b) merely
requires the trial court to allow the parties to present their respective arguments as to
why the local agency erred. The trial court conducted a hearing on October 9, 2014,
at which time the trial court directed the parties to address the issues by way of briefs.
Because the trial court properly applied section 754 of the Local Agency Law, the
trial court did not err or abuse its discretion in failing to conduct a de novo hearing.

Ordinance 508 - Sunshine Act
Next, Kuziak argues that the trial court erred and/or abused its
discretion in dismissing his argument that Ordinance 508 was not properly advertised
and, hence, was void ab initio. Again, we disagree.
As the trial court noted, Kuziak, as the party challenging the validity of
an ordinance, had the burden of proof,5 but he presented “absolutely no evidence that
[the Borough] failed to properly advertise the meeting at which Ordinance 508 was
adopted, as required by the Sunshine Act. The transcript is devoid of any discussion
of that issue in any regard.” (Trial court op. at 2; R.R. at 94a.) Moreover, we note

5
See Penn Street, L.P. v. East Lampeter Township Zoning Hearing Board, 84 A.3d 1114,
1134 (Pa. Cmwlth.), appeal denied, 99 A.3d 78 (Pa. 2014) (“The burden of proof is on the party
challenging the ordinance. . . .”)

9
that such a challenge would have been untimely under section 713 of the Sunshine
Act, 65 Pa.C.S. §713, or section 5571.1(b)(1) of the Judicial Code, 42 Pa.C.S.
§5571.1(b)(1).6
Section 713 of the Sunshine Act states that:

A legal challenge under this chapter shall be filed within 30
days from the date of a meeting which is open, or within 30
days from the discovery of any action that occurred at a
meeting which was not open at which this chapter was
violated, provided that, in the case of a meeting which was
not open, no legal challenge may be commenced more than
one year from the date of said meeting. The court may
enjoin any challenged action until a judicial determination
of the legality of the meeting at which the action was
adopted is reached. Should the court determine that the
meeting did not meet the requirements of this chapter, it
may in its discretion find that any or all official action taken
at the meeting shall be invalid. Should the court determine
that the meeting met the requirements of this chapter, all
official action taken at the meeting shall be fully effective.
65 Pa.C.S. §713. Section 5571.1(b)(1) similarly provides that “[a]ny appeal raising
questions relating to an alleged defect in statutory procedure shall be brought within
30 days of the intended effective date of the ordinance.” 42 Pa.C.S. §5571.1(b)(1).
In the present case, Ordinance 508 was enacted by the Borough at a
meeting held on December 13, 2011, and became effective on January 1, 2012. The
record does not contain any allegation by Kuziak that the December 13, 2011 hearing
was closed to the public. In any event, Kuziak was obviously aware of Ordinance
508 when he submitted his 2012 rental registrations and rental occupancy license fees
to the Borough on December 31, 2012. However, Kuziak only first challenged the
validity of Ordinance 508 at the Board’s November 13, 2013 hearing, well in excess
of the 30-day limitations under either section 713 of the Sunshine Act or section

6
Added by the Act of July 4, 2008, P.L. 325.

10
5571.1(b)(1) of the Judicial Code. Because Kuziak failed to present any evidence in
support of his validity challenge to Ordinance 508, and it appears that any such
challenge was untimely, the trial court did not err or abuse its discretion in dismissing
his argument that Ordinance 508 was not properly advertised and, hence, void ab
initio.

Ordinance 513 - Retroactivity
Next, Kuziak argues that the trial court erred and/or abused its discretion
in failing to conclude that Ordinance 513 was retroactive when its terms specify that
rental registrations and rental occupancy license fees were due beginning with
calendar year 2012. Once more, we disagree.
“A retroactive law is one which relates back to and gives a previous
transaction a legal effect different from that which it had under the law in effect when
it transpired.” Sher v. Berks County Board of Assessment Appeals, 940 A.2d 629,
635 (Pa. Cmwlth. 2008) (citation omitted). This Court has held that “[a] law is given
retroactive effect when it is used to impose new legal burdens on a past transaction or
occurrence.” R&P Services, Inc. v. Commonwealth, Department of Revenue, 541
A.2d 432, 434 (Pa. Cmwlth. 1988). However, section 1926 of the Statutory
Construction Act provides that “no statute may be construed to be retroactive unless
clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. §1926.
In the present case, section 141.4.6.A of Ordinance 513 states that “[a]ll
owners of residential units must register the units with the Code Enforcement Officer
beginning with the calendar year 2012.” (R.R. at 32a.) Since Ordinance 513 was
enacted on July 9, 2013, Kuziak asserts that this provision renders Ordinance 513
retroactive. Kuziak further contends that a logical reading of this provision would
allow the Borough to impose fees from 2012 and forward on any newly converted or

11
constructed residential rental units. However, Kuziak misinterprets this provision.
Section 141.4.6.A merely provides that beginning with calendar year 2012, any
owner of a residential rental unit must register that unit and pay the appropriate fees.
This provision does not impose retroactive fees on new rental units, does not give
different effect to Kuziak’s obligations with respect to his residential rental units, and
does not impose new legal burdens on Kuziak.
As both the Board and trial court noted, Ordinance 508 and Ordinance
513 imposed identical registration requirements and fee schedules. Moreover, both
the Board and the trial court relied on section 1976(a) of the Statutory Construction
Act, which states as follows:

The repeal of any civil provisions of a statute shall not
affect or impair any act done, or right existing or accrued,
or affect any civil action pending to enforce any right under
the authority of the statute repealed. Such action may be
proceeded with and concluded under the statutes in
existence when such action was instituted, notwithstanding
the repeal of such statutes, or such action may be proceeded
with and concluded under the provisions of the new statute,
if any, enacted.
1 Pa.C.S. §1976. Our Supreme Court has stated that “[w]hile the Statutory
Construction Act is not expressly applicable to the construction of local ordinances,
the principles contained therein are nevertheless useful.” Philadelphia Eagles
Football Club, Inc. v. City of Philadelphia, 823 A.2d 108, 127 n.31 (Pa. 2003).
Applying these principles here, Ordinance 508 remained enforceable
through and to its date of repeal on July 9, 2013. Any amounts due under Ordinance
508 continued to be collectible subsequent to July 9, 2013, for time periods prior to
that date. Further, any amounts due under Ordinance 513 were collectible for time
periods after its adoption on July 9, 2013. Kuziak’s registrations and fees became
due and owing as of January 1, 2013. However, Kuziak did not pay any fees until

12
August 10, 2013, at which time Ordinance 513 was in effect. Consistent with section
1976 of the Statutory Construction Act, the Borough could proceed under either
ordinance to collect the fees. Because Ordinance 513 did not impose retroactive fees
or impose new legal burdens, and Kuziak’s obligations remained the same under both
Ordinance 508 and Ordinance 513, the trial court did not err or abuse its discretion in
concluding that Ordinance 513 was not retroactive.

Ordinance 513 – Constitutional Claims
Finally, Kuziak argues that the trial court erred and/or abused its
discretion in failing to conclude that Ordinance 513 impairs the obligations of
residential lease contracts, thereby violating Article I, section 10 of the United States
Constitution and Article I, section 17 of the Pennsylvania Constitution. In the course
of this argument, Kuziak raises several additional constitutional claims, including that
Ordinance 513 violates the separation of powers doctrine by the legislative taking of
property interests without due process of law, deprives residential rental property
owners of their vested rights under the United States and Pennsylvania Constitutions,
and violates the protections provided by the Fourth Amendment to be free from
unreasonable searches and seizures.
However, as the Borough notes, Kuziak did not raise these issues, or
present any evidence in support of these arguments, before the Board, nor did he
address these issues in his appeal to the trial court. Kuziak first raised these issues in
his concise statement of errors complained of on appeal submitted to the trial court.
The law is well settled that issues not raised before the trial court cannot be raised for
the first time on appeal or in a Rule 1925(b) statement of errors complained of on
appeal. Pa.R.A.P. 302(a); Orange Stones Co. v. City of Reading, 32 A.3d 287 (Pa.
Cmwlth. 2011).

13
Accordingly, the order of the trial court is affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge

14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Michael Kuziak, :
Appellant :
: No. 2309 C.D. 2014
v. :
:
Borough of Danville and Borough :
of Danville Rental Registration and :
Property Maintenance Hearing Board :

ORDER

AND NOW, this 29th day of September, 2015, the order of the Court
of Common Pleas of the Twenty-Sixth Judicial District, Montour County Branch,
dated November 13, 2014, is hereby affirmed.

________________________________
PATRICIA A. McCULLOUGH, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3005501. Public record. Not legal advice.