86 Pa. Commw. 645 | Pa. Commw. Ct. | 1985
Opinion by
This appeal follows an order of the Industrial Board of the Department of Labor and Industry (Board) dated January 27, 1984, granting the petitioner, James D. Bighter, a conditional variance from
In 1978, the Department of Labor and Industry (Department) cited Richard and Bernice Knepp, the prior owners of 29 Chestnut Street, Lewistown, Pennsylvania, under the Fire and Panic Act, and revoked the occupancy permit. The Knepps submitted plans, as required under Section 8 of the Act, that would bring the building into compliance. The Department approved the plans. The Department, however, never issued a new occupancy permit since the Knepps never implemented these plans. In 1979, petitioner purchased the building from the Knepps. The Department reinspected the premises in January 1981, and found the same violations that had existed in 1979. In June 1981, the Department again issued a citation, this time in Righter’s name. In August 1983, the Department initiated proceedings for him to show cause why he should not comply with the citation.
At the hearing before the Board, petitioner was able to prove that he had made improvements which rendered the building relatively safe for the tenants. As a result, the Board was willing to waive strict statutory compliance if the petitioner agreed to install an inter-connected smoke and heat detector system. At the hearing, petitioner agreed to install such a system; petitioner was given a conditional variance provided the work was completed within three months. Within three weeks, however, petitioner informed the Board he would appeal the order unless the Board dropped the condition of installing the inter-connected smoke and heat detection system which petitioner alleges is cost-prohibitive and mechanically questionable. When the Board informed petitioner it could not convene to
Petitioner first contends that he should not be required to bring the building into compliance since the original citation was not issued to him. He also contends that the Department should force the prior owners to bring the building into compliance. This Court has stated in connection with a similar claim that the Commonwealth had proceeded in an untimely fashion:
We do not accept the argument that the Commonwealth has in some fashion slept on its right of enforcing the laws which it has created. This is not a case of a private party litigant seeking to enforce a right within a specified time as dictated by the legislature. We are here confronted with the Commonwealth’s enforcing a public safety law as codified by Departmental regulation. Surely, there is no limitation on when such an exercise of the police power may occur. Moreover, Section 1 of the Fire and Panic Act, 35 P.S. §1221, states:
“Whenever any building designated in this act shall, in the opinion of the Department of Labor and Industry, become dangerous to further occupancy because of structural or other defects. ...” (Emphasis added.)
To say that failure to object to an unlawful and perhaps dangerous condition in the past precludes present enforcement is a position which we cannot accept.
Industrial Board v. Durbin, 24 Pa. Commonwealth Ct. 58, 61-62, 354 A.2d 24, 26 (1976).
Mr. Righter also claims that the Department’s enforcing a citation upon him is an exercise of an ex post facto law and is unconstitutional. His argument
Petitioner next claims the Board erred in imposing certain conditions when granting him a conditional variance. On appeal from an order by an administrative agency, judicial review by this court, when the party with the burden of proof does not prevail below, is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or there was capricious disregard of competent evidence. Milbourne v. Pennsylvania Crime Victim’s Compensation Board, 82 Pa. Commonwealth Ct. 259, 475 A.2d 899 (1984). We conclude, after review, that the petitioner’s claim must be decided on
We therefore conclude that Mr. Righter must perform the condition to obtain the variance. Should he find the condition unacceptable, he may comply with the original order of June 5, 1981.
In view of our disposition of this case, it is unnecessary to discuss respondent’s contention raised by a Motion to Dismiss that the petitioner’s claim is barred by his acquiescence in the proposals embodied in the Board’s order.
Affirmed.
Order
Now, January 8, 1985, the order of the Industrial Board of the Department of Labor and Industry, Commonwealth of Pennsylvania, dated on or about January 27, 1984, is affirmed.