Borough of Kennett Square v. Lal

665 A.2d 15, 1995 Pa. Commw. LEXIS 379
CourtCommonwealth Court of Pennsylvania
DecidedAugust 11, 1995
StatusPublished
Cited by4 cases

This text of 665 A.2d 15 (Borough of Kennett Square v. Lal) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borough of Kennett Square v. Lal, 665 A.2d 15, 1995 Pa. Commw. LEXIS 379 (Pa. Ct. App. 1995).

Opinion

SMITH, Judge.

Before the Court is another appeal by Dr. Amrit Lai, this time from the judgment of sentence entered September 7, 1994 by Judge Thomas G. Gavin of the Court of Common Pleas of Chester County after finding Lai guilty on 24 citations issued for violations of the Maintenance Building Code of the Borough of Kennett Square, Ordinance No. 731 (Building Code) and imposing a fine of $14,550. The matter arises out of Lai’s ownership of an apartment complex known as Scarlet Manor Apartments, located in the Borough of Kennett Square, Chester County, and consisting of two separate buildings with a total of 36 units. The violations ranged from leaking plumbing, broken or missing windows, ceiling holes, electrical problems, inoperable lighting, fire protection problems, and exterior and interior door problems.

Lai stated in his “Designation of Contents of Reproduced Record and Statement of Issues Pursuant to Rule 2154 of the Pa.R.A.P.” that the issues presented for review are whether Lai was proven guilty of the summary offenses charged beyond a reasonable doubt and whether the evidence was sufficient to sustain a conviction. Lai nonetheless raised five issues in his brief, and the Borough objects to this Court’s consideration of those issues because they were not properly raised in post-trial motions and are therefore waived. However, because of'the nature of this matter, the following discussion is warranted.

I

Issue No. 1: Lai claims that the doctrine of election of remedies operates to bar the instant citation proceedings because the Borough filed an action for injunctive and other relief against Lai in another proceeding to secure equitable enforcement of the Borough’s Building Code.1 Further, the Borough’s failure to observe the election of remedies doctrine results in double punishment of Lai for the same offense, thus violating his rights against double jeopardy.

Issue No. 2: Lai claims that the trial judge should not have proceeded to trial without counsel of Lai’s choice, in violation of his Sixth Amendment rights under the United States Constitution. Lai challenges Judge Gavin’s refusal to grant a third continuance of the July 1993 hearing before the court to permit Lai a fair opportunity to secure representation after prior counsel [17]*17withdrew his appearance. The attorney discovered that Lai raised ineffective assistance of counsel claims against the attorney in another appeal before this Court (Borough of Kennett Square v. Lal (Kennett Square I), 164 Pa.Commonwealth Ct. 654, 643 A.2d 1172, appeal denied, 540 Pa. 586, 655 A.2d 517 (1994)), without having advised the attorney. Lai maintains that since he faced imprisonment for contempt of court if he failed to pay the fines imposed, he had the right to select any counsel he wished, and because the judge required him to proceed to hearing without counsel, his rights were violated.

Issue No. 3: Lai claims that the Building Code was not enforced in a constitutional manner because, as applied, the Building Code bore no reasonable relationship to the health, safety, morals or general welfare of the community. Lai contends that due to the minimal nature of the violations, no threat is posed to the tenants or to the general public; and because of the tenants’ lack of cooperation, the Borough’s failure to provide adequate police protection or the Borough’s failure to remedy Lai’s violations through the use of available public funds, the Ordinance cannot be saved as to its constitutionality. Lai asserts as well that because of the de minimis nature of the violations, enforcement of the Ordinance was unreasonable and the fine imposed was excessive and violative of the Excessive Fines Clause of the Eighth Amendment to the United States Constitution.

Issue No. 4: Lai claims that the Borough should not be permitted to exercise regulatory power in this case because its inaction brought about the conditions now complained of by the Borough. Lai reiterates his contention that the Borough possessed the power to undertake community development programs including urban renewal public housing, model cities programs and neighborhood development projects to remedy the violations but failed to pursue these remedies. Lai contends that state legislation affords an avenue for the Borough to remedy the violations through urban redevelopment and community development block grant laws.

Issue No. 5: Lai claims that no competent evidence was produced by the Borough to prove that the Ordinance ever properly took effect since the Borough failed to offer the certificate of the Borough secretary under the corporate seal, citing Section 1008 of The Borough Code, Act of February 1,1966, P.L. (1965) 1656, as amended, 53 P.S. § 46008. As such, an effective ordinance was never proven to sustain the convictions against Lai beyond a reasonable doubt.

This Court’s scope of review of the trial court’s order in this case is limited to determining whether constitutional rights were violated or whether the trial court committed an error of law or abuse of its discretion. Commonwealth v. Karn, 168 Pa.Commonwealth Ct. 435, 650 A.2d 1176 (1994).

II

This Court has decided other appeals by Lai from orders of the court of common pleas requiring Lai to comply with local property maintenance codes, and in those appeals Lai raised the same or similar issues presented in his brief sub judice.2 At least four of the issues argued in Lai’s brief have been previ[18]*18ously considered by this Court and were either rejected as being without merit, frivolous, or waived for failure to properly preserve the issue for appellate review.

Here, Lai contends that the Borough is precluded from prosecuting the summary offenses because the Borough previously filed an equity action to enjoin the same conduct and to secure the appointment of an agent to manage Lai’s property. In Borough of Kennett Square v. Lal (Kennett Square II), 165 Pa.Commonwealth Ct. 573, 645 A.2d 474, appeal denied, 540 Pa. 613, 656 A.2d 119 (1994), Lai argued that the trial court had no jurisdiction to consider the equity action because there existed a constitutionally valid Borough statute that provided an exclusive administrative remedial process (summary citation) with review by the court of common pleas. The Court rejected Lai’s arguments and affirmed Judge Gavin’s order to appoint an agent to manage the Scarlet Manor Apartment complex, subject of the current citation proceedings. Writing for the majority, Judge Nariek stated:

The Borough Code provides that boroughs are specifically vested with the power to enforce housing ordinances by instituting appropriate actions or proceedings in law or in equity. The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(24).
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We hold that the remedies at law, the hundreds of citations for violations of the housing code received by Appellant, have been inadequate to insure their enforcement. Thus, the safety and the habitability of the premises can not be guaranteed, and the health and welfare of the tenants residing in Appellant’s apartment complex is endangered.

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Related

Commonwealth v. Halstead
79 A.3d 1240 (Commonwealth Court of Pennsylvania, 2013)
Lal v. Ameriquest Mortgage Co.
858 A.2d 119 (Superior Court of Pennsylvania, 2004)
Lal v. Borough of Kennett Square
786 A.2d 1019 (Commonwealth Court of Pennsylvania, 2001)
Lal v. Borough of Kennett Square
935 F. Supp. 570 (E.D. Pennsylvania, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
665 A.2d 15, 1995 Pa. Commw. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borough-of-kennett-square-v-lal-pacommwct-1995.