223 A.3d 717
Pa. Commw. Ct.2019Background
- DY Properties bought 3325 N. 9th St., Philadelphia, in July 2017; Department of Licenses & Inspections inspected the property on April 13, 2018 and found multiple code violations (no vacant-property license, combustible debris, inoperable sprinkler/no certification, missing downspouts).
- The City issued an April Notice and a May Notice (including lack of use registration / certificate of occupancy after an auto-repair tenant began operating); DY did not appeal those notices.
- A Cease Operations Order was posted in July 2018 but the auto-repair activity continued; the City filed for a permanent injunction and statutory per-day fines on August 22, 2018.
- DY’s owner accepted service at an earlier hearing date but DY did not appear at the December 20, 2018 injunction hearing; the City presented inspector testimony and sought $243,200 in fines based on daily statutory penalties; the trial court granted the requested relief.
- DY later filed a motion for reconsideration asserting it missed the hearing because the inspector told the tenant the hearing would be continued and submitted permits; the trial court denied reconsideration after evidentiary hearing, and DY appealed.
Issues
| Issue | Plaintiff's Argument (City) | Defendant's Argument (DY) | Held |
|---|---|---|---|
| 1) Whether DY waived constitutional and evidentiary arguments by failing to appear at the hearing | DY: issues were waived because DY failed to appear and did not raise them at the hearing | DY: absence excused because inspector told tenant the hearing would be continued; new evidence shown in reconsideration | Held: Waived — failure to appear meant issues not preserved; reconsideration cannot rescue new issues/evidence for appeal |
| 2) Whether the imposed fine was constitutionally excessive (Eighth/PA Const.) | Fine lawful and within statutory per-day scheme given ongoing hazardous violations | Fine excessive and disproportionate to the offense; challenged on constitutional grounds | Held: Waived for failure to timely raise; court added that even if considered, fines were not constitutionally excessive under applicable tests |
| 3) Whether the trial court abused its discretion imposing the injunction and fines | Relief and fines were proper under Code given repeated noncompliance and hazardous conditions | Imposition was an abuse of discretion given fine magnitude, existence of active permits, and tenant presence | Held: No abuse of discretion — fines and injunction followed statutory per-day scheme and ongoing violations; trial court's judgment not manifestly unreasonable |
| 4) Whether the trial court’s opinion shows bias/partiality requiring remand and new judge | City: no evidence of bias; no recusal motion below | DY: trial court opinion reveals partiality; requested new judge on remand | Held: Denied — no recusal was raised below (must be raised first in trial court) and no record support for bias |
Key Cases Cited
- Mun. Auth. of the Borough of Midland v. Ohioville Borough Mun. Auth., 108 A.3d 132 (Pa. Cmwlth. 2015) (preservation requirement for appellate review)
- City of Philadelphia v. Frempong, 762 A.2d 395 (Pa. Cmwlth. 2000) (failure to attend hearing can waive appellate claims)
- HIKO Energy, LLC v. Pennsylvania Pub. Util. Comm'n, 209 A.3d 246 (Pa. 2019) (waiver of excessive-fines challenges not raised before administrative tribunal)
- Commonwealth v. Eisenberg, 98 A.3d 1268 (Pa. 2014) (constitutional excessive-fines analysis; proportionality principles)
- United States v. Bajakajian, 524 U.S. 321 (U.S. 1998) (gross-disproportionality test under the Eighth Amendment)
- Bedford Downs Mgt. Corp. v. State Harness Racing Comm'n, 926 A.2d 908 (Pa. 2007) (issues first raised in reconsideration are not preserved)
- In re Ten Thousand Six Hundred Eighty Dollars, 728 A.2d 403 (Pa. Cmwlth. 1999) (abuse-of-discretion standard)