Com. v. Kovalcik, M.

• Court: Superior Court of Pennsylvania
• Decided: October 6, 2014
• Docket: 444 MDA 2013
• Status: Unpublished

Opinion

J.A27041/13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : MIROSLAV KOVALCIK, : : Appellant : No. 444 MDA 2013

Appeal from the Order Entered February 12, 2013 In the Court of Common Pleas of Lackawanna County Criminal Division No(s).: CP-35-SA-0000162-2012 CP-35-SA-0000163-2012

BEFORE: BENDER, P.J., WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 06, 2014

Appellant, Miroslav Kovalcik, appeals pro se from the order of the

Lackawanna County Court of Common Pleas to pay fines, costs, and fees

totaling $738 after a trial de novo at which he was found guilty of two

summary offenses for junk vehicles. Appellant alleges numerous procedural

and substantive irregularities in the prosecution of the summary offenses.

We affirm.

On July 11, 2012, the Scranton Department of Licensing, Inspections,

* Former Justice specially assigned to the Superior Court. J. A27041/13

violation of land use regulations because he was storing, repairing and

-

zone. Letter, Zoning Code Enforcement Officer Michael J. Wallace to

Appellant, 7/11/12, at 1. The July 11th le

Id.

The following day, July 12, 2012, L&I Housing Inspector John G. Liptai

issued a housing inspection notice that Appellant was in violation of

roperty Maintenance Code. See Code of City of Scranton

-1 to -2 (adopting, with amendments, BOCA 1 Specifically,

the notice contained a checklist of possible PM violations with a mark next to

PM-303.8, which regards motor vehicles. L&I Housing Inspection, 7/12/12;

see also PM-303.8. The notice also contained the following typed and

handwritten provisions:

[In type] YOU ARE REQUIRED TO MAKE THE FOLLOWING CORRECTIONS WITHIN THE TIME FRAME GIVEN BY THE INSPECTOR.

All rubbish and garbage must be removed from around the proberty and the property must be maintained during the year.

1 The record does not contain copies of the ordinances referred to by the Enforcement Officer Wallace or Inspector Liptai. However, the Scranton Code is available online at http://ecode360.com/SC1588. The Commonwealth Court has referred to this site in published decisions.

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[In handwriting] Please be advised your vehicle(s) are in violation of the city vehicle code. This requires all vehicles on your property to have a current inspection and registration. Failure to comply will result in vehicle(s)

L&I Housing Inspection, 7/12/12.

Five days later, on July 17, 2012, Inspector Liptai issued a second

housing inspection notice indicating that Appellant was in violation of PM-

303.4, regarding weeds. The inspector wrote:

-18-12) to remove any remaining vehicles not in compliance to city vehicle code. In addition the grass [and] weeds must be cut and cleaned up within 48 hrs. of this notice (7-19-12). Failure to comply will result in a citation being issued.

Housing Inspection, 7/17/12.

business phone number. There is no indication Appellant attempted to

contact the inspector before the commencement of the underlying

proceedings, although Appellant sent Enforcement Officer Wallace a letter

demanding $5 million. See N.T., 2/5/13, at 15, 21.

On July 18, 2012, one day after issuing the second housing inspection

Donnelly2 and caused two cars to be towed. N.T. at 21. The inspector

posted a third notice advising Appellant that the cars were towed and that

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The inspector returned the next day, July 19, 2012, with Officer Tobin3

and towed a third car. N.T. at 21. Although there were additional cars on

the premises the inspector would have towed as junk vehicles, they were not

by an Officer Lee.4 Id. at 21, 27.

Inspector Liptai commenced the underlying proceedings against

Appellant by issuing two non-traffic citations. Both citations referred to PM-

garbage and remove all illegal vehicles not in compliance with the city

-Traffic Citations, P-7321906-4 & P-9253962-4.

Although the citations were originally dated May 18 and 19, 2012, the dates

were amended by the magisterial district judge to July 18 and 19, 2012,

respectively. On October 12, 2012, the magisterial district judge found

Appellant guilty on both citations.

On October 31, 2012, Appellant timely appealed to the Court of

Common Pleas. On February 5, 2013, the trial court held a trial de novo and

found Appellant guilty. On February 12, 2013, the court entered orders

3 The record does not con 4

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requiring Appellant to pay the fines and costs previously imposed in the

Magisterial District Court. This appeal followed. As discussed below, the

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement.

At the outset, we must consider three threshold issues: (1) whether

this Court has jurisdiction over this appeal; (2) whether Appellant properly

preserved his issues for appeal in a Pa.R.A.P. 1925(b) statement; and (3)

whether Appellant properly briefed his issues on Appellant as required by

Pa.R.A.P. 2101. For the reasons that follow, we conclude that our appellate

Pa.R.A.P. 1925(b) statement do not require waiver of all of his issues.

pro se brief require waiver

of some, but not all, of his claims.

The Commonwealth Court generally has exclusive jurisdiction over an

appeal from a violation of a local ordinance. See 42 Pa.C.S. §

762(a)(4)(i)(B); Commonwealth v. Asamoah, 809 A.2d 943, 945 n.1

(Pa. Super. 2002). Nevertheless, an objection to the appellate jurisdictions

of the Commonwealth Court and this Court may be waived by an appellee.

See 42 Pa.C.S. § 704(a); Pa.R.A.P. 741; Asamoah, 809 A.2d at 945 n.1.

We have the discretion to retain jurisdiction over an appeal filed improperly

in this Court or to transfer the case to the Commonwealth Court. See 42

Pa.C.S. § 705; Wilson v. School Dist. of Philadelphia, 600 A.2d 210, 213

(Pa. Super. 1991).

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olation of

local ordinances should have been filed in the Commonwealth Court. See 42

timely filed, the Commonwealth did not object, and the issues properly

raised by Appellant do not

expertise. See Asamoah, 809 A.2d at 945 n.1; Wilson, 600 A.2d at 213.

Thus, there are no jurisdictional impediments to our consideration of this

appeal.

We next consider whether Appellant properly preserved his issues by

filing a Pa.R.A.P. 1925(b) statement and serving it on the trial judge. 5 Rule

1925 generally requires that a court-ordered statement must be filed in the

trial court and served on the trial judge. See Pa.R.A.P. 1925(b), (b)(2);

Forest Highla , 879 A.2d 223, 228-29

(Pa. Super. 2005). The failure to serve the trial judge may warrant waiver.

See Forest Highlands, 879 A.2d at 228-29.

However,

there are caveats to a finding of waiver. First, the trial court must issue a Rule 1925(b) order directing an [a]ppellant to file a response [in a timely manner6].

5 The trial court, in its Pa.R.A.P. 1925(a) opinion, suggested that all issues were waived because Appellant failed to serve the court with a copy of his Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 6 Forrest Highlands was decided under a former version of Pa.R.A.P. 1925, which referred to a fourteen-day period to file and serve a statement of matters complained of on appeal. See Pa.R.A.P. 1925(b) (subsequently

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Second, the Rule 1925(b) order must be filed with the prothonotary. Third, the prothonotary must docket the Rule 1925(b) order and record in the docket the date it was made. Fourth, the prothonotary shall give written

record, and it shall be recorded in the docket the giving of notice.[7] If any of the procedural steps set forth above are not complied accordance with Rule 1925(b) will not result in a waiver of the issues sought to be reviewed on appeal.

Id. at 227 (citation omitted); see also Commonwealth v. Hooks, 921

A.2d 1199, 1202 (Pa. Super. 2007)). Additionally, under Pa.R.A.P.

1925(c)(1), this Court may remand a matter to the trial court to determine

See

Pa.R.A.P. 1925(c)(1).

Pa.R.A.P.

on [the trial court] either in person or by mail as provided in Pa.R.A.P.

list of the order noted that copies were to be sent to Appellant and the

District Attorney. However, neither the order nor the docket indicated that

amended May 10, 2007). The 2007 amendments to Pa.R.A.P. 1295(b) set forth a twenty-one day period for filing and serving a statement. See PA.R.A.P. 1925(b)(2). 7 Because Forest Highlands was a civil case, it cited Pa.R.C.P. 236 in support of the requirement that notice of the order compelling the filing of a Pa.R.A.P. 1925(b) statement be docketed. The Rules of Criminal Procedure

orders in criminal proceedings. Pa.R.Crim.P. 114. See also infra, pp. 13- 14 (concluding Rules of Criminal Procedure govern instant proceeding).

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the order was, in fact, served on the parties. Accordingly, we decline to find

based on a failure to serve his

Pa.R.A.P. 1925(b) statement on the trial court. See Hooks, 921 A.2d at

1202.

convictions and not the exercise of discretion by the trial court. Accordingly,

further discussion from the trial court is not necessary to permit meaningful

appellate review. We thus decline to remand this matter for a determination

court.

Lastly, we must comment on the pro se brief filed by Appellant.

sufficiently developed for our review. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006). The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to authorities must articulate the principles for which they are cited. Pa.R.A.P. 2119(b).

This Court will not act as counsel and will not develop arguments on behalf of an appellant. Gould, 912 A.2d at 873. Moreover, when defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Id.; Pa.R.A.P. 2101.

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).

pro

se litigant, pro se status generally confers no special benefit upon an

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appellant. Accordingly, a pro se litigant must comply with the procedural

Commonwealth v.

Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003) (citations omitted).

pro se brief presents ten questions challenging

-x. In these ten

questions, Appellant contends: (1) he was entitled to the dismissal of the

proceedings on the summary violations because they were improperly

(Questions IV-V); (2) he was entitled to dismissal of the summary offenses

based on the statute of limitations and irregularities in the Magisterial

District Court (Questions I-II); (3) the issuance of multiple summary

citations for a single underlying violation constitutes double jeopardy

(Question III); (4) the removal of the vehicles from his property was illegal

(Questions VI and VII); and (5) Inspector Liptai violated his constitutional

rights to acquire and enjoy private property (Questions VIII-X).

inter alia, summary of the

argument, statement of the case, and argument sections, but is irregular.

The format, certain irrelevant headings, and lengthy block quotations of

law sometimes relevant, sometimes not create much confusion.

questions in non-distinctive headings. See id. at 21-33. With respect to

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Id. at 24. As to Questions VII through X, Appellant merely

block quotes various legal principles, which, for example, range in a single

page from Erie R.R. v. Tompkins, 304 U.S. 64 (1938) to Miranda v.

Arizona

followed by four pages devoted to smatterings of legal quotations. Id. at

30-34. His brief concludes with the suggestion that if we affirm the

man, the endangered species, who does not give his consent now, nor ever

gave his consent to any of the abovesaid molestation, oppression and

fraud. Id. at 34.

We are compelled to conclude that Questions VI-X have been waived

due to the failure to develop any cognizable issue relevant to a challenge to

the summary convictions. See Pa.R.A.P. 2119(a)-(b). Appellant does not

provide any meaningful argument connecting the factual circumstances of

his case to the myriad principles recited in his brief. Furthermore,

guilty and imposed fines for violations of an ordinance. Rather, they assail a

related, but separate matter the towing of his vehicles. Accordingly, we

decline to address Questions VI through X, but will consider Questions I

through V.

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The Commonwealth Court8 has stated:

on on appeal from a summary conviction is limited to whether there has been an error of law or whether competent evidence supports

never-shifting burden of proving all elements of a summary offense beyond a reasonable doubt. In considering whether the evidence is sufficient to convict,

together with all reasonable inferences therefrom, in the

Commonwealth v. Nicely, 988 A.2d 799, 803 n.3 (Pa. Cmwlth. 2010)

(citations omitted).

We summarize the provisions under which Appellant was cited and

convicted. As noted above, the City of Scranton has adopted the BOCA

National Property Maintenance Code as part of its Property Maintenance

Code. See Scranton Code, § 360-1 to -2. PM- 9 -105.1.

PM-106.1 states:

It shall be unlawful for any person, firm or corporation to erect, construct, alter, extend, repair, remove, demolish, maintain, fail to maintain, provide, fail to provide, occupy, let to another or occupy or permit another person to occupy any premises,[10] property, structure or equipment

jurisdiction over appeals from violations of local ordinances. 9

-202. 10 PM- ing any -302.

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regulated by this code, or cause same to be done, contrary to or in conflict with or in violation of any of the provisions of this code, or to fail to obey a lawful order of the code official, or to remove or deface a placard or notice posted under the provisions of this code.

PM-106.1.

PM-

All premises and exterior property shall be maintained free from weeds or plant growth in excess of 10 inches (254 mm). All noxious weeds shall be prohibited. Weeds shall be defined as all grasses, annual plants and vegetation, other than trees or shrubs provided; however, this term shall not include cultivated flowers and gardens.

PM-303.4.

Except as provided for in other regulations, not more than one currently unregistered or uninspected motor vehicle shall be parked, kept or stored on any premises, and no vehicle shall at any time be in a state of major disassembly, disrepair, or in the process of being stripped or dismantled.

Exception:

A vehicle of any type is permitted to undergo major overhaul, including body work, provided that such work is performed inside a structure or similarly enclosed area designed and approved for such purposes.

PM-303.8 (emphasis added).11

inter alia, current registration sticker and does not have a valid state safety inspection -23. The Zoning Code further states:

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Section 360-2(E) of the Scranton Code amends PM-106.2 to reads as

follows:

Any person who shall violate a provision of this code shall, upon conviction thereof, be guilty of a summary offense, punishable by a fine of not less than $200 and not more than $600, plus costs, or imprisonment not exceeding 90 days, in default of payment. Each day that a violation continues shall be deemed a separate offense. Any person found violating this chapter shall be responsible for payment required to bring the property effected by said violation into compliance with said code.

Scranton Code, § 360-2(E) (emphasis added). PM-

of any unlawful acts the code official shall institute an appropriate action or

proceeding at law to exact the penalty provided in Section PM- -

106.3.

Within a residential district, no motor vehicle that does not display current registration and current safety inspection (or safety inspection and registration that expires less than 90 days prior) and no junk vehicle (as defined by Article II) shall be parked or stored in any way that is visible from a public street or an adjacent dwelling.

Scranton Code, § 445-56(B)(2).

inter alia - 1. That Ch

Scranton Code, § 438-11. We note that Section 438-14 contains an enforcement provision referred to by Investigator Liptak at the trial de novo.

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In light of the enforcement provision set forth in Section 360-2(E),

which, inter alia

payment, we regard the underlying summary cases against Appellant as

See Pa.R.Crim.P. 100 (noting Rules of Criminal

Borough of West

Chester v. Lal, 426 A.2d 603, 605 (Pa. 1981); Commonwealth v.

Spontarelli, 791 A.2d 1254, 1258 (Pa. Cmwlth. 2002). Accordingly, the

Rules of Criminal Procedure apply.

were improperly commenced by an L&I inspector and prosecuted by the

District Attorney, we note the following. Inspector Liptai, as a code official,

Procedure and is authorized to issue or file a citation commencing a

summary case. See PM-105.1; Pa.R.Crim.P. 402. Moreover, under

that a District Attorney is an attorney for the Commonwealth. See 16 P.S. §

Commonwealth

v. Bailey, 775 A.2d 881, 886 (Pa. Cmwlth. 2001). Accordingly, there is no

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-V, that Inspector

Liptai improperly commenced the proceeding or the Office of the District

Attorney could not represent the Commonwealth.

h dismay that the

citations issued against Appellant listed only PM-303.4, which relates to the

height of weeds or plant growth, as the predicate offense.12 Moreover, as

Appellant notes, the dates originally listed in the citations created additional

confusion.

In this regard, Pa.R.Crim.P. 109 states, in relevant part:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a . . . citation . . . unless the defendant raises the defect before the conclusion of the trial in a summary case . . . and the defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 109 (emphasis added).

his alleged violation of PM-303.8, relating to motor vehicles, and referenced

his need to have his vehicles registered and inspected. Both the July 12th

and July 17th notices, as well as both citations, referred to the requirements

related to his vehicles. It further appears that Appellant had actual notice of

violations related to his vehicles, as he attempted to show one of his

vehicles was registered at the time Inspector Liptai caused it to be towed.

12 Inspector Liptai did not testify to the height of weeds or plant growth on

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See N.T. at 42-43. Appellant did not assert that he lacked notice of the

offenses as alleged before the conclusion of the trial de novo, nor does he

challenge the adequacy of the notices provided by the citations in this Court.

Thus, even if Appellant attempted to raise defects in the citations in

the Magisterial District Court, the record establishes that he was apprised of

the dates and nature of the offenses against him. Accordingly, we discern

9, 2012.

-303.8

as was indicated in the July 12, 2012 L&I inspection,13 and not PM-303.4 as

was indicated in the citations.

As noted previously, violations of the Property Maintenance Code are

continuing and must be deemed separate offenses for each day. Scranton

Code, § 360-2(E). As there was sufficient evidence to sustain the conclusion

motor vehicle . . . parked

13 We also note that PM-303.8 and Section 438-11 share similar elements, i.e.

Compare PM-303.8 with Scranton Code § 438-11. However, PM-303-8 prohibits having more than one currently unregistered or uninspected vehicle on a premises, while Section 438- store, keep or maintain on private property a junk vehicle for more than 48

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19, 2012, a violation of PM-303.8 may be sustained for each date.14 Thus,

III, namely, that the trial court improperly amended citations, that his

convictions violated the statute of limitations, or that the multiple

punishments for the Property Maintenance Code violations constituted

double jeopardy.

Having addressed all issues properly raised in this appeal from the

order finding Appellant guilty and imposing fines, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2014

14 Similarly, because the offenses must be deemed separate for each day, it matters not for the purposes of the statute of limitations that the citations were originally dated May of 2012, so long as there was sufficient evidence that violations existed on July 18 and 19, 2012.

Instantly, although Appellant refers to his vehicles as privately owned, he presents no argument disputing that his property contained more than one unregistered or uninspected vehicle. We further note that at the trial de novo, he presented the trial court with a temporary registration sticker for a GMC truck. However, the cars Saab, a Mercedes, and a third vehicle.

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