*1 vеrify responsibility financial to suspension a lifetime to for failure is tantamount to suspension faulty for a to us seems a month period year, of one which and two consecutively, and inspection, the circumstances. to be served ample under suspension for impose to a two month also Id. at 928. to be servеd con- improper keeping record concedes that the DOT suspen- the two consecutive currently with change year one sus was entitled to sions. and to suspension to a two month pension concurrently run suspension allow that to ORDER Appellants’ it found that record because improper rather than fraudu keeping NOW, the order April AND However, argues lent. DOT that because Washington the Court of Common Pleas different find the trial court did not make County docketed at Nos.2002-3700 ings of fact or conclusions- of law with hereby is May 2003 2002-4127 and dated charges performing to respect and REVERSED part AFFIRMED verify fi faulty inspection and failure to fоr the part and is REMANDED this case responsibility, nancial it was without the foregoing opinion. reasons set forth in the authority change suspensions to to run relinquished. Jurisdiction concurrently. agree. We suspension or not a is to be Whether concurrently is consecutively
served
part imposed of the penalty
failing perform proper inspection. to findings of
The trial court made different regard of law with to
fact and conclusions and was Appellants’ keeрing record CHOE, Appellant Sung E. length of change thus entitled to both the also whether that sus- suspension v. consecutively con- pension was to run OF PHILADELPHIA BOARD However, trial court did currently. & INSPECTION. LICENSE of fact or con- findings not make different charges regard clusions of law with Pennsylvania. Court of faulty inspection and fail- performing 6, 2004. on Briefs Feb. Submitted verify responsibility. ure financial 16, 2004. Decided Therefore, Kobaly, the trial change penal- court was not entitled
ty for offenses. this is those did when it
exactly what the trial court suspensions for those offenses
changed the consecu- concurrently
to run rather than Therefore, decision
tively. court’s regard
in this must be reversed. the order of the trial court
Accordingly, in part and reversed part
is affirmed to the trial
and this case is remanded DOT,
court, remand to to allow for further suspension impose a two month
DOT *2 Gaston,
Cheryl L. Philadelphia, ap- pellee. PELLEGRINI, Judge,
BEFORE: and COHN, FLAHERTY, Judge, and Senior Judge. BY
OPINION Senior FLAHERTY.1 (Choe) Sung appeals E. Choe from аn Philadelphia order of the Com- (trial court) mon affirming Pleas the deci- sion of the Philadelphia Board of License (Board) and up- which held the Department decision of the (L I) Inspections Licenses and revoking her privilege business ordering license and her to operation cease of her business. We affirm. 14, 2002, city police
On October officers responded to a call from a complainant at Tokyo, Garden of massage parlor on the Street, third floor of 1207 Race Philadel- phia, Pennsylvania, which was licensed to complainant Suki Choe. The alleged that perform she was forced to prostitu- аcts of tion, was assaulted against and held her will. The premises owner of the and two men were charged arrested and with a crimes, including prostitution. number operations & issued a cease directing that activity business at Rodgers, Kenneth M. Philadelphia, for premises immediately cease until the re- appellant. quirеd license was obtained.2 reassigned 2602(4)(b), 1. 4(c), 4(d), 4(e), 4(f), This to the author sections 19— on March steps necessary and shall take all to terminate operations any the business estab- business Code, 19-2602, Philadelphia Section lishment that has violated of such sub- quires privilege all holders of business licens- sections, including but not limited to the fоl- offenses, prohibited es to refrain from list of (b) lowing padlocking physical .... and clo- including engage prostitution "to in acts of (c) enterprise; sure of the business promoting prostitution as defined at 18 Pa. proceedings enjoin preliminary initiation of 5902(a) (b).” Code, § Philadelphia C.S. permanently operation the furthеr and/or 19-2602(4)(c). Section enterprise the business which has violated or that, provides This section further "The De- intends to violate such sub-sections.” Phila- Code, partment 19-2602(4)(d)(l). Inspections delphia Licenses and shall Section revoke, issuing, provides, refrain from or shall the busi- It also "Whenever business is be- who, any person, ing ness license of premises under color conducted in or on without license, operate, oper- of such license required privilege intends to or is business the De- ating, provisions partment in violation of the Inspections of sub- of Licenses and door, the back run- escape out L & I issued a tried
On October
door.
ning out the back
license to Choe which
privilege
business
as a health
her to conduct business
14).
allowed
(N.T. 2/04/03,
Daly further testi-
p.
Race
on the
floor of 1207
Street.
spa
first
though the license was is-
fied that even
*3
operations
I
that the
spa,”
Because L & believed
a “health
while it did not
sued for
it did
merely
equipment,
third floor had
have exercise
have beds.
taking place on the
рresent any
not
evidence before
floor,
Choe did
L & I revoked the
moved to the first
unanimously
the
The Board voted
Board.
11,
posted
on December
2002 and
license
deny
Choe’s
of To-
operations order at Garden
cease
Street, directing that all
kyo, 1207 Race
court. The
appealed to thе trial
timely appeal
business cease. Choe filed a
the trial
based
case was heard before
Board, and both
with the Board.
on the record before the
in
their
parties
support
filed briefs
4,
February
hearing, L & I
At a
2003
brief, Choe
In her
spective positions.
testimony
Daly, an
presented the
of Kevin
as follows:
idеntified the issues
I.
that he
employee of & He testified
there was
The first
is whether
issue
on the
operation
informed that
the
was
sufficient
before the
adduced
evidence
by
had moved to the first floor
third floor
Board of License
Immigration and Naturalization Service
4,
the
support
on
2003
(INS) agents
involved with the
who were
to affirm the
Board’s determination
14,
and were watch-
October
2002 incident
under
issue is whether
City. The second
the
ing
building.3 He testified that
Decision of
Court
site,
agents
go
asked him to
visit the
ex-
v. 2600
Board
Philadelphia License
plaining:
Lewis, Inc.,
A.2d [20]
661
1995),
pre-revoca-
adequate
there was
got
I
two uniformed
We went over.
was
the license
tiоn notice before
went
Officers from the 6th District. We
ceased.4
to the front door. The front door was
it
to an inside door.
open.
26, 2003,
Then
led
By
August
order dated
agent
door. The INS
knocked
of the
the trial court affirmed the order
this
building,
to the back of the
and Board. Choe then
Court.5
went
By
September
trial order dated
girls that wеre
there
that’s when the
adequate pre-termi-
held that when an
Operations
Order
also
issue Cease
held,
hearing
timely post-
activity
immediately
nation
cease
until the
business
hearing
deprivation
be held.
Philadelphia
must
required license is obtained.”
Code,
19-2602(6).
Section
Board,
that the
as the ulti
5.It
is well-settled
involved in this case
3. At the time the events
fact-finder,
judge of credibili
mate
is the sole
immigration
provid-
place,
services were
took
testimony
pow
ty
conflict in
and has the
time,
Subsequent to that
after
ed
INS.
testimony
reject
if
er to
even uncontradicted
2003,
1,
were transi-
March
those services
lacking
testimony
in cred
the Board finds the
Department
Se-
tioned into the
of Homeland
Hearing
ibility.
Zoning
Constantino v.
name,
curity
Citizenship &
Hills,
under a new
U.S.
Borough
Pa.Cmwlth.
Forest
of
258,
Immigration
where,
Further,
Services.
(1992).
appeal should
quashed.
be
In
presented
this
we are
awith
nearly identical situation. Because Choe
1)
appeal,
On
argues
Choe
that:
1925(b) statement,
failed to file a
she
the Board’s
supported by
decision is not
waived
issues she raised on appeal.
2)
substantial evidence and
I& did not
Although Choe and the Board filed briefs
provide her with adequate pre-revocation
court,
before the trial
obey
Choe did not
notice.
the order of the trial court to file the
Echoing
court,
the trial
L & I contends
required by
concise statement
that order.
that we should
appeal
dismiss Choe’s
be- Choe’s refusal or failure
comply
to
with
cause she waived all
appeal
issues for
that
by
order of court will not be rewarded
when she
comply
failed to
with the trial
this
exercising
Court
its discretiоn to de-
court’s order to file a 1925 statement. We
appellate
termine if
review can still be
agree.
accomplished by
record,
reviewing the
briefs and opinion of the trial court. Such
Recently, in
City
Center
Residents Asso-
a review at this time
only encourage
would
(CCRA)
ciation
and the Society to Reduce
disrеgard
disrespect
further
of a Rule
(SCRUB)
Created to
Blight
Reduce Urban
Appellate
Procedure and an order of
v. Zoning
Adjustment
the City
court,
designed
both of which were
to as-
Philadelphia,
Choe’s failure to file a statement resulted in automatic TOWNSHIP, Appellant PENN appeal she could raise on stating v. quashed. her should be HANOVER FOODS CORPORATION. failure, Choe’s in this to file the statement did not frustrate Pennsylvania. Commonwealth Court of view because those issues were identified Argued Dec. as the her brief and at oral Decided argument. Because no purpose was served the issuance of a state-
ment further, winnow the issues even
and although I do not countenance Choe’s statement as or-
dered, circumstances, such to not ad- R.A.P.1925(b) 1. Pa. provides: issues waived even where the trial court has opinion. addressed those issues in an The lower may court forthwith enter an These include those cases where a appellant to file of rec- statement was either not filed or filed after ord in the íower court and serve on the trial opinion. the trial court judge a concise statement of the matters Lord, Nigro, explaining In Mr. Justiсe complained no later than why failing there can be waiver for to list entry 14 of such order. A failure 1925(b) statement, issues in a wrote: comply with such direction be con- opinion poses The absence of a trial court sidered court as a waiver of impediment meaningful a substantial order, objections ruling all or other effective review. Rule 1925 is matter of. judges identifying intended to aid trial focusing upon those issues while the Although it has not addressed this exact parties plan to raise an A.2d at issue, recognize Superior that the Court has finding been strict in its of waiver. In his There is no functional difference when the concurring opinion in Commоnwealth v. Al opinion issues are addressed in trial court (Pa. sop, 799 A.2d Superior statement, response written in to a 1925 Ct.2002), President Del Sole asked anticipated when are addressed reappraisal position, stating: of its absent such statement. In Appellant’s I would not find issues waived either the existence of the trial сourt separately suggest and write we re-exam- "meaningful allows for and effec- application ine our of Pa. R.A.P.1925 and tive” review. Lord, Commonwealth v. 553 Pa. policy I believe that sound reasons exist A.2d 306 public to find waiver. The is better served previous I would revisit those disputes decisions of when are resolved on their merits that, Lord, applying this court have held rather than default.