Chartiers Valley Industrial & Commercial Development Authority v. City of Pittsburgh

569 A.2d 405, 131 Pa. Commw. 44, 1990 Pa. Commw. LEXIS 65
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 29, 1990
StatusPublished
Cited by5 cases

This text of 569 A.2d 405 (Chartiers Valley Industrial & Commercial Development Authority v. City of Pittsburgh) 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
Chartiers Valley Industrial & Commercial Development Authority v. City of Pittsburgh, 569 A.2d 405, 131 Pa. Commw. 44, 1990 Pa. Commw. LEXIS 65 (Pa. Ct. App. 1990).

Opinion

OPINION.

BARRY, Judge.

Chartiers Valley Industrial and Commercial Development Authority (appellant) appeals an Allegheny County Court of Common Pleas order denying appellant’s motion for a new trial and to arrest judgment against it for failure to maintain the sidewalk and curb along its premises in conformity with the standards of the Pittsburgh Building Code. The Allegheny County Court of Common Pleas heard the appeal from a default judgment entered against appellant by a Housing Court magistrate when appellant failed to appear at that proceeding.

Appellant is the record owner of commercial property at the corner of Smithfield Street and Third Avenue in Pittsburgh, known as 301 Smithfield Street. On three occasions since 1986, appellant was charged by the City of Pittsburgh (City) with failing to maintain the sidewalk and curb bordering the Third Avenue side of its premises pursuant to Title 10.1985 Section 301.5 of the Pittsburgh Building Code.

On the two prior occasions, appellant appeared and produced evidence showing that the cause for the disrepair of the abutting sidewalk and curb was the City’s failure to police vehicles parking unlawfully on the sidewalk. In these prior proceedings, appellant received suspended sentences from the Housing Court. On the third occasion, here in issue, appellant appeals the Allegheny County Court of Common Plea’s denial of a new trial and arrest of this judgment.

[47]*47Appellant claims that the notice of the Housing Court proceeding underlying the instant action was defective— that the place for the hearing which it indicated was incorrect. Thus appellant contended in the trial de novo that the default taken against it was in error because appellant’s absence was caused by defective notice and that appellant was thereby denied due process. It claims also that it has been subjected to double jeopardy because of the repeated citations over an approximate three-year period for the summary offense here in issue. Appellant asserts that res judicata and collateral estoppel bar the City from seeking a determination of appellant’s guilt beyond that accompanying the suspended sentences imposed for the first two violations. It contends that since the code violations had previously been attributed to the City for the failure to police the vehicles parking on the sidewalk, the sums which appellant subsequently was required to expend for the partial repair of the sidewalk amount to an impermissible taking. The taking, appellant alleges, results from the present and potential citations lodged against it despite appellant’s corrective efforts. Finally, it charges that the court improperly emphasized appellant’s failure to appear at the hearing before the Housing Court and improperly sentenced appellant in its decision. It submits that the Court of Common Pleas merely adopted the Housing Court’s judgment without making its own determination.

We note that the City is correct in asserting that the post-trial procedure followed in this case was defective. The Rules of Criminal Procedure require that, upon the entry of a verdict by a jury or a decision in a bench trial, a motion for post-trial relief will be entertained within ten days thereafter. Following the disposition of post-trial motions judgment and sentence are entered and consequently appealable.

Before this Court is an appeal taken from the denial of post trial relief. The improper posture of this appeal stems from the trial court’s error in entering judgment and sentencing prior to the filing and disposition of [48]*48post trial motions. The court improperly used a stamped order when entering appellant’s conviction on November 1, 1988 and thereby failed to comply with the requirements of Rule of Criminal Procedure 1128 relating to post-trial motions and the Superior Court’s ruling in Commonwealth v. Ragoli, 362 Pa.Superior Ct. 390, 524 A.2d 933 (1987), which prohibits the use of a form in a de novo review from summary conviction and mandates a finding of guilty or not guilty,. the imposition of sentence in open court and the transcription of the proceedings.1 Therefore, the error here is tantamount to a breakdown in court administration for which appellant should not be penalized.2 The appeal period on the judgment against appellant having expired, it would now be unconscionable for this Court to deny appellant review of the merits of its appeal, for to do so would discourage the post trial process, the intention of which is to promote the efficient administration of justice and to minimize appellate review. We will now address the merits.

We find no merit in appellant’s due process claim. Appellant’s complaint of improper notice regarding its hearing before the Housing Court would be valid were it not for the fact of the trial de novo. Appellant has enjoyed an opportunity to be heard on all the issues it wished to raise. Whatever it may have suffered by its absence from the proceedings before the Housing Court has undoubtedly been cured by the full and fair treatment appellant received in the bench trial conducted by the Allegheny County Court of Common Pleas.

Appellant’s claim that it has been subjected to double jeopardy because of the repeated citations might have [49]*49merit had appellant not been afforded reasonable time between citations in which to correct the condition of the sidewalk and curb. The first complaint was filed on December 9, 1986; a second complaint was filed on September 11, 1987; and the third complaint which is in issue here, was filed on June 2, 1988. Indeed, Judge Raymond L. Scheib twice postponed a hearing on the post-trial motion so that appellant could correct the sidewalk and curb conditions. Even though the Pittsburgh ordinances provide that each day’s violation constitutes a separate offense, we agree with appellant that double jeopardy could result from repeated conviction for the same or similar summary offenses. See Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981). However, this is not true under the present facts. Reasonable time elapsed between violations during which corrective measures could have been taken.

Additionally, we note that appellant has misread Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985) for the proposition that once convicted of an offense one cannot be tried again at a later date for continuing to commit that same offense. The Supreme Court’s holding in Goldhammer that suspended sentences are final and subject to the constraints of double jeopardy has no bearing on the instant matter. The suspended sentences here were ordered for separate and distinct offenses between which reasonable time had elapsed in which appellant could have made the required repairs. With respect to appellant’s continuing violation, there was no double jeopardy.

Appellant’s assertion is incorrect that res judicata and collateral estoppel bar this action by the City. It submits that because the Housing Court magistrate in the prior proceedings had concluded that appellant was guilty and that no further penalty would be imposed (neither fine nor imprisonment) that the instant citation is invalid.

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Bluebook (online)
569 A.2d 405, 131 Pa. Commw. 44, 1990 Pa. Commw. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chartiers-valley-industrial-commercial-development-authority-v-city-of-pacommwct-1990.