Commonwealth v. Marcus

690 A.2d 842, 1997 Pa. Commw. LEXIS 112, 1997 WL 102021
CourtCommonwealth Court of Pennsylvania
DecidedMarch 10, 1997
DocketNo. 2467 C.D. 1995
StatusPublished
Cited by10 cases

This text of 690 A.2d 842 (Commonwealth v. Marcus) 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
Commonwealth v. Marcus, 690 A.2d 842, 1997 Pa. Commw. LEXIS 112, 1997 WL 102021 (Pa. Ct. App. 1997).

Opinion

MIRARCHI, Jr., Senior Judge.

Norman and Susan Marcus (Marcuses) appeal from an order of the Court of Common Pleas of Montgomery County imposing a fine for their failure to comply with the terms and conditions of the approved building permit and site plan.

The Marcuses are the owners of the property located at 1696 Stocton Road, Abington Township (Township), Montgomery County. On July 28, 1987, the Marcuses submitted an application for a building permit to construct a single-family dwelling on their property. In the site plan attached to the application, the Marcuses set forth fourteen items of grading and erosion measures. Item No. 12 of those measures stated:

Paved [sic] proposed driveway and stabilize all exposed areas with sod and/or seeding and soil supplements, PennDOT Formula B. Protect seeded areas with hay or mulch covering. Slopes greater than 3 to 1 shall be peg sodded, hydroseeded and/or seeded and protected with Erosion Control Netting.

On July 31, 1987, the Township approved the application and the site plan, subject to conditions that “sod erosion devices” must be used during construction and that “Contractor’s Notes” attached to the permit must be carefully followed. Paragraph 4 of the Contractor’s Notes stated: “At the completion of construction, the pervious areas of the property must be planted with grass seed, sod or a suitable vegetative cover to prevent erosion and sedimentation_ The contractor is responsible to provide erosion control devices.”

The Marcuses began the construction in the summer of 1989. On October 19, 1990, the Township issued a temporary certificate of occupancy, setting forth four items to be completed before a permanent certificate of occupancy can be issued: (1) driveway paving; (2) removal of all dead trees and wood; (3) patching of fireplaces with cement; and (4) grading and landscaping. On June 13, 1991, the Township Code enforcement officer sent the Marcuses an enforcement notice by certified mail, stating that they must complete the items noted in the temporary certificate of occupancy by June 30,1991, and that upon their failure to do so, the Township would issue a citation for violating the various provisions of the Township Code. The [844]*844Marcuses did not respond to the enforcement notice. Nor did they appeal the notice to the Township Zoning Hearing Board, as advised in the notice.

On October 3, 1991, the Code enforcement officer issued a second enforcement notice, directing the Marcuses to complete the items noted in the temporary certificate of occupancy by October 31, 1991. The notice stated that they must pave the driveway and seed or sod the property pursuant to the approved site plan. In a letter dated October 18, 1991, the Marcuses responded that they were not required to seed or sod because the grading and erosion control measures under the site plan are the items to be done only during construction.

When the Marcuses failed to complete the work as directed despite one more extension of the deadline, the Township on May 15, 1992 issued a citation for their failure to grade and seed or sod the property as required by the permit and the site plan in violation of Sections 111.6, 113.3, 113.4, 113.5 and 119.1 of the BOCA Basic/National Building Code/1984, Ninth Edition (BOCA Code) adopted by the Township Ordinance 1629 (Ordinance).1

Under Section 111.6, an applicant for a budding permit must submit a site plan showing to scale the size and location of a new construction and all existing structures, street grades and proposed finished grades. Further, “[a]ll work shall conform to the approved application and plans for which the permit has been issued and any approved amendments thereto.” Section 113.3. Finally, a certificate must be obtained from the Township before using or occupying a new building or structure. Section 119.1.

On July 2, 1992, the Township filed with the district justice the citation issued on May 15, 1992.2 Following a hearing, the district justice found that the Marcuses violated the Ordinance as charged and imposed a fine in the amount of $1000 and costs. On appeal, the trial court found, after a de novo trial, that the Marcuses failed to seed or sod the exposed areas as required by the permit and the site plan in violation of Section 113.3 of the Ordinance and imposed a fine in the amount of $3900: $1000 for the first day of violation, plus $100 for each additional day of violation for twenty-nine days. The Marcus-es’ appeal to this Court followed.3

The Marcuses first contend that the trial court did not have authority to take judicial notice of the relevant provisions of the BOCA Code because the Commonwealth failed to submit a copy of the provisions of the Ordinance and authenticate it at the hearing.

Section 6107(a) of the Judicial Code, 42 Pa.C.S. § 6107(a), provides that “[t]he ordinances of municipal corporation of this Commonwealth shall be judicially noticed.” (Emphasis added.) Further, “[t]he tribunal may inform itself of such ordinances in such manner as it may deem proper and the tribunal may call upon counsel to aid it in obtaining such information.” 42 Pa.C.S. § 6107(b). Section 6107 of the Judicial Code is intended to remove any discretion of the court in determining whether to take judicial notice of an ordinance and provide the court with the authority to take whatever steps it deems necessary to apply an ordinance. Dream Mile Club, Inc. v. Tobyhanna Township [845]*845Board of Supervisors, 150 Pa.Cmwlth. 309, 615 A.2d 931 (1992).

To prove a violation of an ordinance, the municipality need only offer evidence of facts establishing that the violation occurred. Providence Builders, Inc. v. Commonwealth, 89 Pa.Cmwlth. 316, 492 A.2d 488 (1985). However, counsel has an obligation under Section 6107 to take the initiative in requesting judicial notice of an ordinance by making the ordinance available to the court. Dream Mile.

In Providence, this Court noted that the ordinance was brought to the trial court’s attention when the counsel had it marked as an exhibit and authenticated it by the zoning officer. However, the method used in Providence is not the only way of aiding the court in obtaining the relevant ordinance under Section 6107, as the Marcuses seem to suggest.

In the matter sub judice, the counsel for the Commonwealth submitted a trial memorandum to the trial court at the beginning of the hearing, setting forth Sections 111.6, 113.3, 113.4, 113.5, and 119.1 of the BOCA Code adopted by the Township and Section 117.4 of the Ordinance. Thus, the counsel fulfilled his obligation to aid the trial court in obtaining the relevant provisions of the Ordinance. Hence, the trial court properly took judicial notice of the Ordinance with the aid of the counsel, pursuant to Section 6107 of the Judicial Code.

The Marcuses next contend that the imposition of the fine should be vacated because the BOCA Code was adopted on May 14, 1989 after they obtained the Township’s approval of the building permit and site plan on July 31, 1987. The Commonwealth-contends, on the other hand, that the Marcuses waived the issue because they failed to raise it before the trial court.

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Bluebook (online)
690 A.2d 842, 1997 Pa. Commw. LEXIS 112, 1997 WL 102021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-marcus-pacommwct-1997.