St. Vladimir Ukrainian v. Saunders, S.
Opinion
J-S09044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SAINT VLADIMIR UKRAINIAN : IN THE SUPERIOR COURT OF ORTHODOX CHURCH OF : PENNSYLVANIA PHILADELPHIA :
: :
v. :
: :
STANLEY J. SAUNDERS : No. 774 EDA 2024 :
Appellant :
Appeal from the Order Entered February 6, 2024 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 210300071
BEFORE: LAZARUS, P.J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 16, 2025
Stanley J. Saunders appeals from the trial court’s February 6, 2024
order denying his post-trial motion filed following the appointment of the
Commonwealth Preservation Alliance, Inc. as conservator in this action
proceeding under the Abandoned and Blighted Property Conservatorship Act,
68 P.S. §§ 1101-1111 (“Act 135”). For the reasons that follow, we affirm.
By way of background, we note that Appellant is the record owner of a
parcel of property located at 500 Independence Street in Philadelphia,
Pennsylvania (“the property”). Appellee, Saint Vladimir Ukrainian Orthodox
Church of Philadelphia, is a religious entity which maintains a house of worship
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S09044-25
that abuts said property. Since October 30, 2023, the Commonwealth
Preservation Alliance, Inc. (hereinafter, “CPA”) has served as the court-
appointed conservator of the property.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On March 1, 2021, [Appellee] filed its petition for appointment of a conservator pursuant to [Act 135] for [the property].
After reviewing the petition and instructing [Appellee] to serve all necessary parties, the [trial court] scheduled an evidentiary hearing on June 30, 2021. On June 26, 2021, [Appellant] filed a praecipe to defer pending a Chapter 13 bankruptcy petition filed by [Appellant] in the United States Bankruptcy Court for the Eastern District of Pennsylvania on June 14, 2021. [Appellant’s] bankruptcy action was dismissed by order dated April 28, 2022, and [Appellee] filed a motion to relist the Act 135 action on January 20, 2023. The [trial court] granted [Appellee’s] motion on April 12, 2023, and scheduled an evidentiary hearing on June 16, 2023 to consider testimony and evidence on the conditions of the property as of the date the petition was filed.
All parties were present and represented by counsel at the June 16, 2023 hearing. By order dated June 16, 2023 and docketed on June 20, 2023, the [trial court] found that [Appellee] established the property abandoned and blighted as defined under 68 P.S. § 1105(d), and scheduled a hearing for August 9, 2023, to determine whether the [trial court] would afford [Appellant] the opportunity to pursue conditional relief of the property pursuant to 68 P.S. § 1105(f). In its order, the [trial court] specified the evidence it sought from [Appellant] to substantiate his ability to remediate the property through conditional relief.
J-S09044-25
On July 1, 2023, [Appellant] filed a motion for post- trial relief under control no.: 23070101. At the August 9, 2023 hearing, [Appellant] withdrew his motion for post-trial relief by oral motion, requested that the [trial court] afford him the opportunity to pursue conditional relief, but failed to present any evidence to support his request. Following the August 9, 2023 hearing, the [trial court] scheduled another hearing for October 11, 2023 on whether to grant [Appellant’s] request to perform conditional relief, and again specified the evidence it sought from [Appellant] in support of his request. At the October 11, 2023 hearing, [Appellant] failed to present the [trial court] with satisfactory evidence of his capacity to remediate the property. Following the October 11[th] hearing, the [trial court] found [Appellee’s] nominated conservator, [CPA], qualified to serve as conservator, held the matter under advisement to allow the parties to submit photographic evidence of the current condition of the property, and allow [Appellant] additional time to demonstrate capacity to remediate the property. The [trial court] ordered that “[i]f no documentation has been submitted by [Appellant] by or on Thursday, October 26th at 5:00 p.m., [it] may appoint [CPA] as conservator.” On October 30[], 2023, having received nothing from [Appellant], the [trial court] appointed [CPA] as conservator of the property.
[Appellant] filed a second motion for post-trial relief on November 10, 2023. The [trial court] requested briefs from each party on whether [Appellant’s] motion should be granted, extended the deadlines for briefs at [Appellant’s] request by order dated December 19, 2023, held oral argument on February 5, 2024, and denied [Appellant’s] motion at the conclusion of oral argument by order entered February 6, 2024.
Trial court opinion, 5/17/24 at 2-4 (footnotes and extraneous capitalization
omitted; some brackets in original).
J-S09044-25
On February 29, 2024, Appellant filed a notice of appeal from the trial
court’s February 6, 2024 order denying his motion for post-trial relief. On
March 7, 2024, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal within 21 days, pursuant to Pa.R.A.P.
1925(b).1 On May 24, 2024, Appellee filed an application to quash Appellant’s
appeal as taken from a non-appealable interlocutory order. On June 28, 2024,
this Court filed a per curiam order denying Appellee’s application to quash
without prejudice as to raise those arguments before the merits panel.
Preliminarily, we find that the instant appeal is properly before us
pursuant to Pa.R.A.P. 311(a)(2), which permits an interlocutory appeal as of
right from order an affecting the possession or control of property. This Court
has recently held that an appeal of an order appointing a conservator or
granting conditional relief under Section 1105(f)(1) of Act 135 is properly
taken from the order denying post-trial motions, pursuant to Rule 311(a)(2).
Oceanview Prop. Mgmt. & Recovery Servs., LLC v. Baker, 319 A.3d 508,
511-512 (Pa.Super 2024). The Oceanview Court explained that an appeal
from the order denying post-trial motions is proper because such an order
effectively affirms the trial court’s previous order affecting the possession or
control of property. Id. at 511, n.4. Accordingly, we now turn to the claims
raised by Appellant on appeal.
____________________________________________
1 Appellant and the trial court have complied with Pa.R.A.P. 1925.
J-S09044-25
Appellant raises the following issues for our review:
I. Whether the record lacks sufficient admissible evidence to sustain the trial court’s findings and holding that [Appellee] established that [Appellant’s] property has been abandoned for at least twelve months as of [Appellee’s] March 1, 2021 filing of its Act 135 petition, when the testimonial and documentary evidence presented by [Appellee] was incompetent, irrelevant, speculative, unauthenticated, largely uncorroborated hearsay and thereby inadmissible and which did not meet either the Section 1105(d)(1) requirements to establish “abandonment” or not being “legally occupied” as defined in Scioli[2], and thereby the trial court erred in granting [Appellee’s] Act 135 petition predicated thereon[?]
II. Whether the record lacks sufficient admissible evidence of record to support the trial court’s finding that [Appellee] met it burden of establishing that [Appellant’s] property was blighted within the meaning of Section 1105(d)(5)(i), (ii), (iv) and (vii) for the appointment of a conservator and thereby the trial court also committed errors of law in admitting, over the objections of [Appellant], the irrelevant, incompetent, unauthenticated, uncorroborated hearsay and otherwise inadmissible testimonial and documentary evidence presented by [Appellee] and predicated its decision granting [Appellee’s] Act 135 petition thereon[?]
Appellant’s brief at 4 (extraneous capitalization omitted).
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J-S09044-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
SAINT VLADIMIR UKRAINIAN : IN THE SUPERIOR COURT OF ORTHODOX CHURCH OF : PENNSYLVANIA PHILADELPHIA :
: :
v. :
: :
STANLEY J. SAUNDERS : No. 774 EDA 2024 :
Appellant :
Appeal from the Order Entered February 6, 2024 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 210300071
BEFORE: LAZARUS, P.J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 16, 2025
Stanley J. Saunders appeals from the trial court’s February 6, 2024
order denying his post-trial motion filed following the appointment of the
Commonwealth Preservation Alliance, Inc. as conservator in this action
proceeding under the Abandoned and Blighted Property Conservatorship Act,
68 P.S. §§ 1101-1111 (“Act 135”). For the reasons that follow, we affirm.
By way of background, we note that Appellant is the record owner of a
parcel of property located at 500 Independence Street in Philadelphia,
Pennsylvania (“the property”). Appellee, Saint Vladimir Ukrainian Orthodox
Church of Philadelphia, is a religious entity which maintains a house of worship
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S09044-25
that abuts said property. Since October 30, 2023, the Commonwealth
Preservation Alliance, Inc. (hereinafter, “CPA”) has served as the court-
appointed conservator of the property.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On March 1, 2021, [Appellee] filed its petition for appointment of a conservator pursuant to [Act 135] for [the property].
After reviewing the petition and instructing [Appellee] to serve all necessary parties, the [trial court] scheduled an evidentiary hearing on June 30, 2021. On June 26, 2021, [Appellant] filed a praecipe to defer pending a Chapter 13 bankruptcy petition filed by [Appellant] in the United States Bankruptcy Court for the Eastern District of Pennsylvania on June 14, 2021. [Appellant’s] bankruptcy action was dismissed by order dated April 28, 2022, and [Appellee] filed a motion to relist the Act 135 action on January 20, 2023. The [trial court] granted [Appellee’s] motion on April 12, 2023, and scheduled an evidentiary hearing on June 16, 2023 to consider testimony and evidence on the conditions of the property as of the date the petition was filed.
All parties were present and represented by counsel at the June 16, 2023 hearing. By order dated June 16, 2023 and docketed on June 20, 2023, the [trial court] found that [Appellee] established the property abandoned and blighted as defined under 68 P.S. § 1105(d), and scheduled a hearing for August 9, 2023, to determine whether the [trial court] would afford [Appellant] the opportunity to pursue conditional relief of the property pursuant to 68 P.S. § 1105(f). In its order, the [trial court] specified the evidence it sought from [Appellant] to substantiate his ability to remediate the property through conditional relief.
J-S09044-25
On July 1, 2023, [Appellant] filed a motion for post- trial relief under control no.: 23070101. At the August 9, 2023 hearing, [Appellant] withdrew his motion for post-trial relief by oral motion, requested that the [trial court] afford him the opportunity to pursue conditional relief, but failed to present any evidence to support his request. Following the August 9, 2023 hearing, the [trial court] scheduled another hearing for October 11, 2023 on whether to grant [Appellant’s] request to perform conditional relief, and again specified the evidence it sought from [Appellant] in support of his request. At the October 11, 2023 hearing, [Appellant] failed to present the [trial court] with satisfactory evidence of his capacity to remediate the property. Following the October 11[th] hearing, the [trial court] found [Appellee’s] nominated conservator, [CPA], qualified to serve as conservator, held the matter under advisement to allow the parties to submit photographic evidence of the current condition of the property, and allow [Appellant] additional time to demonstrate capacity to remediate the property. The [trial court] ordered that “[i]f no documentation has been submitted by [Appellant] by or on Thursday, October 26th at 5:00 p.m., [it] may appoint [CPA] as conservator.” On October 30[], 2023, having received nothing from [Appellant], the [trial court] appointed [CPA] as conservator of the property.
[Appellant] filed a second motion for post-trial relief on November 10, 2023. The [trial court] requested briefs from each party on whether [Appellant’s] motion should be granted, extended the deadlines for briefs at [Appellant’s] request by order dated December 19, 2023, held oral argument on February 5, 2024, and denied [Appellant’s] motion at the conclusion of oral argument by order entered February 6, 2024.
Trial court opinion, 5/17/24 at 2-4 (footnotes and extraneous capitalization
omitted; some brackets in original).
J-S09044-25
On February 29, 2024, Appellant filed a notice of appeal from the trial
court’s February 6, 2024 order denying his motion for post-trial relief. On
March 7, 2024, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal within 21 days, pursuant to Pa.R.A.P.
1925(b).1 On May 24, 2024, Appellee filed an application to quash Appellant’s
appeal as taken from a non-appealable interlocutory order. On June 28, 2024,
this Court filed a per curiam order denying Appellee’s application to quash
without prejudice as to raise those arguments before the merits panel.
Preliminarily, we find that the instant appeal is properly before us
pursuant to Pa.R.A.P. 311(a)(2), which permits an interlocutory appeal as of
right from order an affecting the possession or control of property. This Court
has recently held that an appeal of an order appointing a conservator or
granting conditional relief under Section 1105(f)(1) of Act 135 is properly
taken from the order denying post-trial motions, pursuant to Rule 311(a)(2).
Oceanview Prop. Mgmt. & Recovery Servs., LLC v. Baker, 319 A.3d 508,
511-512 (Pa.Super 2024). The Oceanview Court explained that an appeal
from the order denying post-trial motions is proper because such an order
effectively affirms the trial court’s previous order affecting the possession or
control of property. Id. at 511, n.4. Accordingly, we now turn to the claims
raised by Appellant on appeal.
____________________________________________
1 Appellant and the trial court have complied with Pa.R.A.P. 1925.
J-S09044-25
Appellant raises the following issues for our review:
I. Whether the record lacks sufficient admissible evidence to sustain the trial court’s findings and holding that [Appellee] established that [Appellant’s] property has been abandoned for at least twelve months as of [Appellee’s] March 1, 2021 filing of its Act 135 petition, when the testimonial and documentary evidence presented by [Appellee] was incompetent, irrelevant, speculative, unauthenticated, largely uncorroborated hearsay and thereby inadmissible and which did not meet either the Section 1105(d)(1) requirements to establish “abandonment” or not being “legally occupied” as defined in Scioli[2], and thereby the trial court erred in granting [Appellee’s] Act 135 petition predicated thereon[?]
II. Whether the record lacks sufficient admissible evidence of record to support the trial court’s finding that [Appellee] met it burden of establishing that [Appellant’s] property was blighted within the meaning of Section 1105(d)(5)(i), (ii), (iv) and (vii) for the appointment of a conservator and thereby the trial court also committed errors of law in admitting, over the objections of [Appellant], the irrelevant, incompetent, unauthenticated, uncorroborated hearsay and otherwise inadmissible testimonial and documentary evidence presented by [Appellee] and predicated its decision granting [Appellee’s] Act 135 petition thereon[?]
Appellant’s brief at 4 (extraneous capitalization omitted).
Our appellate role in cases arising from nonjury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any
____________________________________________
2 Scioli Turco, Inc. v. Prioleau, 207 A.3d 346 (Pa.Super. 2019).
J-S09044-25
application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of the jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [where] the issue ... concerns a question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts of the case.
Gamesa Energy USA, LLC v. Ten Penn Ctr. Assocs., L.P., 181 A.3d 1188,
1191–1192 (Pa.Super. 2018) (citation omitted; brackets in original),
affirmed, 217 A.3d 1227 (Pa. 2019).
Upon review, we find that Appellant’s claims on appeal warrant no relief.
The trial court addressed each of Appellant’s allegations of error in its
comprehensive, 46-page opinion and concluded that they are without merit.
We find that the trial court’s conclusions are supported by competent evidence
and are free of legal error. Specifically, we agree with the trial court that “the
[p]roperty was not legally occupied pursuant to [Section] 1105(d)(1) as the
term is defined in [Scioli].” See trial court opinion, 5/17/24 at 8-13. We also
agree with the trial court that Appellee satisfied “at least three of list of nine
enumerated conditions” for appointment of a conservatorship under 68 P.S. §
1105(d)(5). See id. at 14-20.
J-S09044-25
Accordingly, we adopt the aforementioned portions of the well-reasoned
May 17, 2024 opinion of the Honorable Ann M. Butchart as our own for
purposes of this appellate review. We hereby direct the parties to attach the
trial court opinion to this Memorandum in all future proceedings.
Order affirmed.
Date: 4/16/2025
I 03/28/2025 10:35 Circulated 03/2802025 10.35 AM
I IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION
SAINT VLADIMIR UKRAINIAN ORTHODOX CHURCH OF SUPERIOR SUPERIOR COURT
COURT
PHILADELPHIA PlllLADELPRlA 774 774 EDA
EDA 2024
2024
Petitioner,
V.
Trial Court Docket:
STANLEY J. SAUNDERS March Term, 2021 Respondent No.
No, 00071
OPINION
BUTCHART, BUTCIHART, JJ. May 17, 2024
Saunders ("Respondent"),
Stanley J. Saunders ("Respondent"), files this appeal of the Court's Orders dated June 16,
August August 9, October 11, and October 30, 2023.
Respondent's interlocutory appeal was filed without authorization under the Respondent's
Pennsylvania Pennsylvania Rules of Appellate Procedure. Respondent Respondent did not appeal a a final Order, did not
permission, and did not file as of Right from Interlocutory Orders pursuant to Pa.R.A.P.
seek permission, Pa.R.A.P
311. The
The Court respectfully
respectfully requests
requests that
that this
this Honorable
Honorable Court quash the the appeal and
and remand
remand for
for
proceedings. See
further proceedings. See Garzone • v. Kelly, 539
539 A.2d
A.2d 1292
1292 at
at 1295-96
1295-96 (Pa.
(Pa. Super 1991).
1991).
Further, Respondent
Respondent has failed to provide provide the Court with an adequate adequate Statement of Errors
Complained 1925(b). Complained of on Appeal as required by Pa.R.A.P. 1925(b)
OPFLD-Sa M Madimh Uk-d-a Orthodox Church Of Phiiade
11111111111111111111111111111 III III
SO :01 Wd L1 $0·0 L AH!
21030007100104 21030007 100i04
I ' !
PURSUANTTO
COPIES SENT PURSUANT Pa.R.C.P. 236(b)
TO PA.R.CP, D. DRAYTON 05/17/2024 236lb) D.
I. I PROCEDURAL PROCEDURAL HISTORY
HISTORY
On March 1, 2021, Petitioner Saint Vladimir Ukrainian Orthodox Church of
Philadelphia ("Petitioner")
(Petitioner") filed its Petition for the appointment of aaConservator pursuant pursuant to the
Abandoned and Blighted Blighted Property Conservatorship Act Act at 68 P.S. $§ 1101
at 68P.S. 1H0I et seq. (the "Act" or seq. (the
"Act 135")
135) for the the Property
Property owned by Respondent Respondent at
at 500 Independence Street, Philadelphia, 500 Independence Philadelphia,
Pennsylvania, Pennsylvania, 19126 19126 (the
(the"Property").
Property")
After reviewing the Petition and instructing instructing Petitioner to serve all necessary parties, the necessary parties',
Court scheduled an evidentiary hearing Count hearing on on June 30, 2021. 2
30, 2021 OnOn June 26,
26, 2021,
2021, Respondent
Respondent filed
filed aa
Praecipe to Defer pending pending aa. Chapter 13 bankruptcy bankruptcy petition filed by by Respondent
Respondent in the United
States Bankruptcy Court for the the Eastern
Easter District
District of
of Pennsylvania
Pennsylvania on
on June
June 14,
14, 2021. Respondent's
Respondent's
bankruptcy action was dismissed by Order dated April28, April 28, 2022',
2022 3,and Petitioner filed filed aaMotion to
Relist Relist the Act 135 the Aet 135 Action Action on January
January 20, 2023.
2023. The Court Granted Petitioner's Motion Motion on April
April
12, 2023, and scheduled an evidentiary hearing hearing on June
June 16,
16, 2023 to testimony and to consider testimony and
evidence on on the conditions conditions of the
the Property as of the
the date the Petition
Petition was
was filed.
filed."4
All Parties were present and and represented by counsel at the June 16, 2023 hearing.
hearing.5 By
By
Order dated June 16, 2023 and docketed on June 20, 2023, the Court found that Petitioner
established the Property abandoned and blighted blighted as defined under as defied under 68 P.S.
P.S. §$ 1105(d),
1105(d), and
and
scheduled aahearing hearing for August 9, 2023, to determine whether the Court would afford
Respondent the opportunity to pursue Conditional Relief of the Property Property pursuant
pursuant to 68 P.S. §
$
'See see March 26, 2021 Count 26,2021 Court Order
Order.
2 See April See April 28, 2021 Court Order 2021 Count Order.
3See Petitioner's Motion to Relist Act 135 Action Following Dismissal of Bankruptcy 'See Bankruptcy Case 4 See April 12, 2023 Court Order,
See April 12,2023 Order. Attorney, Robert L Attomey, 5 appearance was recorded on June 16,2023 L Simmons' entry of appearance 16, 2023 at 5:22 p.m.
p.m
1105(f). 1105()."6 In its Order, the Court specified Respondent to substantiate specified the evidence it sought from Respondent
ability to his ability to remediate the Property remediate the Property through Conditional Relief.
through Conditional Relief
On July On July 1, 2023, Respondent I, 2023, Respondent filed filed aaMotion
Motion for
for Post-Trial
Post-Trial Relief
Relief under Control No.:
under Control No.:
23070101. At At the August 9, 2023
the August 2023 hearing, hearing, Respondent
Respondent withdrew
withdrew his
his Motion for
for Post-Trial
Post-Trial Relief
Relief
by oral motion, by motion, requested requested that the Court afford him the opportunity opportunity to pursue
pursue Conditional Relief,
any evidence to support
but failed to present any support his request.
request. Following
Following the August hearing, August 9, 2023 hearing,
the Court scheduled another hearing hearing for October 11, 2023 on whether to grant Respondent's Respondent's
request request to perform Conditional Relief, to perform and again Relief, and again specified specified the
the evidence it
it sought from
from
Respondent support of his request.? Respondent in support request.' At the October 11, 2023 hearing, hearing, Respondent
Respondent failed to
present present the Court with satisfactory evidence of his capacity to remediate the Property. Following
the October 11 II hearing,
hearing, the Court found Petitioner's nominated Conservator, Commonwealth
Preservation Alliance, qualified qualified to serve as Conservator, held the matter under advisement to
allow the parties parties to submit photographic photographic evidence of the current condition of the Property, Property, and
allow Respondent allow additional time Respondent additional to demonstrate time to demonstrate capacity capacity to
to remediate
remediate the
the Property.$ The Court
Property." The Court
ordered that "[i]f no documentation has been submitted by Respondent Respondent by or on Thursday,
October 26th 5:00 p.m., 26 at 500 p.m., [it] may appoint [it] may appoint Commonwealth Preservation Alliance as
30th, 2023,
Conservator." On October 30", 2023, having having received nothing
nothing from Respondent,
Respondent, the Court
appointed Commonwealth Preservation Alliance as Conservator of the Property. appointed Property.9
Respondent Respondent filed aasecond second Motion
Motion for
for Post Trial Relief on November November 10,
10, 2023.
2023. The
The
Court requested requested briefs briefs from party on whether Respondent's from each party Respondent's Motion Motion should be
be granted,lo
granted,"
This provision +Ti 6 provision of Act Aet 135
13$ allows the Court to permit permit the owner to
to remedy the blighting conditions of the Property "the owner represents if the represents that the conditions, conditions, violations or nuisance or emergency condition will be abated in in aa
reasonable period."
period." 68 P.S. $§ 1105( 1105(f).
See August 7See 7 9, 2023 Count August 9,2023 Court Order.
8 See October 11, See 2023 Court Order.
11,2023 Order.
See October 30, See 9 2023 Count 30,2023 Court Order.
see io See November 30, 2023 Court 30,2023 Court Order.
Order
extended the the deadlines for briefs briefs at
at Respondent's request
request by Order dated December December 19,
19, 2023,
held argument on February held oral argument February 5, 2024, and denied Respondent's Respondent's Motion
Motion at
at the
the conclusion of
oral argument oral argument by Order entered by Order entered on
on February 6, 2024.
February 6, 2024.
On February
February 29, 2024, Respondent Respondent filed
filed with the Court its Notice of Appeal Appeal to the
Superior Court of Pennsylvania Superior Pennsylvania from the order entered in this matter on February February 6, 2024. On
March 7, 2024, the Court Ordered Respondent Respondent to file a
a concise statement of errors complained of
appeal (" on appeal 1925(b) statement"). On March 27, 2024, this Court entered an Order to stay the (1925(b)
matter pending pending this appeal appeal and required Respondent Respondent post of $10,000 post an appeal bond of $ 10,000 within thirty thirty
(30) days (30) days of of the Order. 11 Respondent the Order.' Respondent filed his 1925(b)
filed his Statement on 1925() Statement on March March 29,
29, 2024. See
Attachment 1, Respondent's Attachment I, Respondent's 1925(b)
1925(b) Statement.
II. II. DISCUSSION DISCUSSION
The Abandoned The and Blighted Abandoned and Blighted Property Conservatorship Act, Property Conservatorship 68 P.S. §$ 1H0I, Act, 68PS. 1101, et
etseq.
seq.
("Act 135"), enacted in 2008, provides (Aet provides aamechanism to transform abandoned and blighted
properties productive reuse. 68 P.S. §$ 1102. Following an evidentiary hearing on the merits properties into productive
of the Petition, aaCourt may appoint aaconservator to bring may appoint property into municipal bring the property municipal code
compliance when an owner has failed to do so. Id; see also In re compliance re Conservatorship Proceeding Conservatorship Proceeding in in
Rem Ren by by Germantown Conservancy, Inc,, Germantown Conservancy Inc., 995 A.2d 451, 453 453 (Pa. Commw. Ct. 2010).
2010)
Alternatively, Alternatively, the Court may may also permit
permit the owner to remediate the property property by granting
by granting
Conditional Relief.
Relief. 68 P.S.
P.S. §$ 1105()
1105(f).
In enacting enacting Act 135, the Legislature Legislature recognized
recognized that "[s]ubstandard, "[s]ubstandard, deteriorating deteriorating and
abandoned [structures] abandoned [structures] are aapublic public safety threat" and, if not rehabilitated, are are "... likely to
see See March 27,2024 11 27, 2024 Count Court Order
Order.
remain abandoned abandoned and further 68 P.S. §$ 1102.
further deteriorate." 68P.S. 1102. Act Aet 135
135 provides
provides that "[i]f the
that "[ilf the owner
of a [building]
[building] fails fails to
to maintain
maintain the property
property in
in accordance with applicable municipal with the applicable municipal codes codes
or standards of public public welfare
welfare or safety, it
it is
is in the
the best
best interest of
of the
the Commonwealth, the
municipality municipality and the community for the court, pursuant the community pursuant to the provisions provisions of this
this act, to appoint aa
to appoint
conservator to make the necessary necessary improvements[.]"
improvements[.]" Id. (emphasis added). "Court" is defined (emphasis added).
under Act Aet 135 as "[t]he appropriate count "[the appropriate court of common pleas." P,S. $§ 1103.
pleas." 68 P.S.
1. I. Respondent's Complained of on Appeal Respondent's Statement of Errors Complained identify any Appeal fails to identify any issues with sufficient specificity specificity to allow for meaningful meaningful review.
"It is axiomatic that when It when aacourt has has to
to guess
guess what issues
issues a
a defendant
defendant is
is appealing,
appealing, that
that
is not enough for meaningful meaningful review. Similarly, Similarly, when aadefendant fails adequately to identify identify in
aaconcise manner the issues sought to be pursued pursued on appeal, the trial court is impeded in its
preparation preparation of a a legal analysis which is pertinent pertinent to those issues. In other words, words, a
a concise
statement which is too vague vague to allow the court to identify identify the issues raised on appeal appeal is the
functional equivalent equivalent of no concise statement at all." Hassel [Hassel v.
y. Franzi, 2019 PA Super 109, 207
949 (2019)
A.3d 939, 949 citing Commonwealth (2019) citing Commonwealth v.
v,Butler, 756 A.2d
A.2d 55, 57
57 (Pa.Super.
(Pa.Super. 2000),
affirmed, 571 Pa. 441, 812 A.2d 631 631 (2002);
(2002); Lineberger
Lineberger v_.
y, Wyeth,
Weth, 894 A.2d 141, 148 (Pa.Super.
141, 148 (Pa.Super.
2006). 2006)
In Commonwealth y, v. Pukowsky,
Pukowsky, an appellant appealed aatrial court ruling appellant appealed ruling that limited the
testimony witness. Commonwealth_Pukowsky, testimony of appellant's witness. Commonwealth v. Pukowsky, 2016 PA Super 201, 147 A.3d
1236 (2016).
1229, 1236 Superior Court held that appellant (2016). The Superior appellant waived its argument argument as to this ruling ruling
where appellant failed to to make specific reference reference to any testimony testimony of its
its witness
witness that was
was
improperly improperly limited. Id.
Id. Instead,
Instead, Appellant
Appellant merely
merely stated in
in its 1925(b) Statement
its 1925() that "[the Statement that "[t]he
limiting the testimony
Court erred in limiting Appellant's [witness], testimony of Appellant's [witness], as both aafact witness and an
expert witness. Id. expert [d, Said limitations were highly highly prejudicial
prejudicial to Appellant, Appellant, and violative of his due
process rights." process Id. Several objections rights." [d. objections to the witness' testimony testimony were raised during during trial,
trial, some of
which were sustained, forcing guess as to which objections forcing the Court to guess objections formed the basis of the
appeal. Id. appeal. Id.
v. Hansley,
In Commonwealth y. Hanslev, an appellant appellant waived arguments arguments that it failed to "properly "properly
develop" in develop" in its its 1925(b) statement. Com.
1925(b) statement. Com. v. Hanslev, 201I v, [Hansley, 2011 PA Super 129, PA Super 129, 24
24 A.3d 410, 415
A.3d 410, 415
(2011). Appellant's (2011). Appellant's 1925(b) statement argued, variously, 1925(b) statement that the variously, that the Court Court "erred in permitting permitting
[Appellee's counsel] [Appellee's counsel] to question [Appellant]
to question [Appellant] about about things
things that
that went
went beyond
beyond the
the scope of the
scope of the
direct examination," and and "in
"in permitting
permitting [Appellee's counsel] to [Appellee's counsel] constantly make to constantly make comments
questioning the questioning the truthfulness of [Appellant's]
truthfulness of [Appellant's] testimony"
testimony" without specific reference without specific to the reference to the notes
notes of
testimony. Id. testimony Id
Here, Respondent Respondent appeals evidentiary rulings rulings made over the course of three hearings.
hearings
Respondent Respondent never never references the testimony references the testimony of of any
any witness,
witness, let alone any
let alone any Respondent's Respondent's objections
objections
which were overruled or any Petitioner's objections objections which were sustained. Instead, Respondent Respondent
argues in his 1925(b)
1925(b) Statement that the Court Court "erred and abused its discretion in summarily summarily
overruling Respondent's overruling objections to Respondent's objections to the hearsay, double the hearsay, double hearsay and otherwise hearsay and otherwise impermissible impermissible
oral testimony and admission testimony and admission of documents," which of documents," which rulings rulings violate "the Rules violate "the of Evidence Rules of and
Evidence and
law," law," "Rules of Court, "Rules of Court, laws of the laws of Commonwealth of the Commonwealth of Pennsylvania Pennsylvania and
and the
the equal
equal protection and
protection and
due due process process requirements of the requirements of the Pennsylvania and U.S.
Pennsylvania and U.S. Constitutions." Resp't's Rule Constitutions." Resp't's Rule 1925(b)
1925(b)
Statement of Statement of Errors Errors Complained of on
Complained of on Appeal at 3, Appeal at ¶ 3, 4. In
In an
an effort to
to particularize
particularize his
his
objections, Respondent objections, Respondent provided provided "particulars"
"particulars" numbered
numbered "a" through "h"
"a" through "h" as
as subheadings
subheadings to
to
Respondent's Respondent's paragraph paragraph 4. Id.
Id, These
These "particulars"
"particulars" include statements such include statements such as:
as: "allowed
"allowed
Petitioner's attorney to engage Petitioner's attomey engage in in leading and testimonial narratives leading and narratives in presenting questions to presenting questions
witnesses... throughout several witnesses...throughout several hearings from June hearings from June 16, 2023 through 16, 2023 through October 30, 2023;"
October 30, 2023;"
"allowed Petitioner to present... hearsay and otherwise present. .hearsay otherwise inadmissible testimony and/or documents
that were not authenticated and/or corroborated as required under the Rules of Evidence;"
Petitioner... to "allowed Petitioner. to present grossly prejudicial present grossly hearsay and otherwise inadmissible prejudicial hearsay inadmissible testimony testimony
documents;" "unduly and documents;" "unduly restricted and/or prevented prevented Respondent from cross-examining
Petitioner's witnesses;" denied "denied Respondent's
Respondent's requests
requests for an order directing Petitioner's Petitioner'g
witnesses to provide provide Respondent with aacopy of the documents in their possession they were
testifying testifying to but which they conveniently did not bring bring to the hearing, yet the court allowed
Petitioner's witnesses to testified as to the contents of those hearsay hearsay documents... [sic];" and documents...[sic];"
"scheduled and conducted serial status hearings, hearings, that were conducted in aamanner allowing
Petitioner to supplement the June 16, 2023 record record..... in
.i n a
a manner contrary to the Rules of
Evidence, Evidence, [etc.]."
[etc.]." Id.
Had Respondent identified the specific rules, codes, or statutes the Court's rulings rulings
specific testimony
violated, the Court would still be left without reference to specific testimony which Respondent Respondent
improperly allowed, or specific argues was improperly specific questions questions on cross-examination that Respondent Respondent
argues were improperly improperly precluded. The Court is tasked with scrutinizing scrutinizing the notes of testimony testimony
from each each of the the "several hearings
hearings from June 16,
I6, 2023 through
through October 30, 2023" to identify identify
which rulings Respondent could be referring referring to when he argues that his Constitutional rights rights
have have been been violated by by this
this Court. This is precisely the winnowing is precisely winnowing which Appellant Appellant is
is required
required to
provide provide in his 1925(b) statement. Failure to do so is precisely precisely why
why Superior
Superior Court has found
similarly undeveloped arguments to be waived.
The Court has The Court endeavored to has endeavored to address address the
the substance of Appellant's substance of Appellant's 1925(b)
1925(b) Statement.
Statement
The Court has looked to the arguments arguments made in
in the February
February 5, 2024 oral argument argument on
given that the
Respondent's Motion for Post Trial Relief. Arguments on this Motion are relevant given
written content of Respondent's Respondent's Motion for Post Trial Relief is virtually virtually identical to his 1925(b)
1925(b)
,----------------------------------------------
1 Statement. Accordingly, engineer" the basis for Respondent's Accordingly, the Court will "reverse engineer" Respondent's appeal appeal
from Respondent's Respondent's stated bases for objection objection and/or general
general complaint
complaint during
during the hearings
hearings
themselves in themselves order to in order discern to
to discern to the
the specific laws, codes, specific laws, codes, statutes, statutes, legal
legal rights or legal
rights or legal principles principles
Respondent claims the Court violated.
that Respondent violated
2. This Court did not err in finding that the Property was not legally legally occupied
occupied
pursuant to 68 P.S. $§1105(d)(1) as the term is defined in SeioliTureo, Scioli Turco, Ie.,
Inc. v.
Prioleau.
Once the court adjudicating adjudicating an Act
Aet 135 petition
petition is satisfied that that service has been
perfected upon all Respondents perfected upon and lienholders, Respondents and an evidentiary lienholders, an evidentiary hearing hearing is scheduled on
is scheduled on the
the
merits of the merits of petition. Section the petition. Section 55of of the
the Abandoned and Blighted Abandoned and Blighted Property Conservatorship Act Property Conservatorship Act
requires requires that the Court Count find, among
among other things,
things, that "the building building has not been legally occupied legally occupied
for at for at least the the previous
previous twelve
twelve months" before it
months" before it can
can appoint
appoint a
a Conservator. 68 P.S.
Conservator. 68 PS. §$
1105(d)(1). 1105()0D).
In Scioli Turco, Inc. In Scioli v. Prioleau, Inc, v, Prioleau, the Superior Court the Superior Court affirmed affirmed the
the trial court's finding trial court's finding that that
the petitioner petitioner failed to prove prove that the property had not been legally legally occupied,
occupied, but disagreed
disagreed with
the lower court's the lower court's interpretation of the interpretation of the term "legally occupied."
term "legally occupied." See See Scioli Turco, Inc.
Scioli Turco, Inc. v.
v. Prioleau,
Prioleau,
2019 2019 PA PA Super 98, 207
Super 98, 207 A.3d
A.3d 346
346 (2019).
(2019). Although
Although the Superior Court the Superior Court declined declined to
to disturb
disturb the
the
finding that the respondent trial court's finding respondent regularly spent nights regularly spent nights at the Property, Property, it found that
"legally occupied" as "legally occupied" as used used in the Act
in the Act does
does not
not mean merely that
mean merely that the
the property
property is
is lived
lived in by its
in by its
permission. Id.
owner or by someone with the owner's permission. Id. at 351. Rather, Act "unambiguously Rather, the Act "unambiguously
requires proof that the building building in question
question has not been lived in during during the preceding
preceding twelve
months in conformity months conformity with the laws regulating with the regulating the right occupancy (emphasis right to occupancy (emphasis added)."
added)." Id. at
Id. at
353. "This showing 353,"This showing may may be made with evidence that no person person has resided in the building...or building ... or
I' I that a a statute or code provision provision prohibits any person from living in in the structure legally." Id Id.
However, the Superior
Superior Court declined to overturn the trial court's finding that the
Property Property had been legally occupied.
occupied. See [d.
Id. Though the petitioner in Scioli Turco v. Prioleau y,Prioleau
argued on appeal that the property could not be legally occupied because the building was argued
designated unsafe, the only support for its argument in the evidentiary record came from the designated
testimony testimony of Ryan Ryan Spak,
Spak, aaneighbor
neighbor "who runs Project Rehab, aanonprofit program that had been
monitoring monitoring the Property Property since 2013." Id.
Id. at 348. Mr.
Mr. Spak testified that living in the property
would "`violate would "violate every building code the City has,"'
has," but Mr. Spak was not qualified as an expert
and did not rely rely upon
upon any official determination of uninhabitability, and Petitioner ultimately
presented presented no evidence that an official had prohibited occupancy because of code violations. [d.
Id.
Here, Petitioner presented presented evidence that the Property was designated an-unsafe an unsafe structure
by the Department by Licenses & Department of Licenses & Inspections.
Inspections. At the June 16 I6 hearing, Petitioner introduced
Exhibits 5-017, 5091-094, and 6 the testimony of code inspector Thomas Rybakowski 6through the
("Inspector Rybakowski"). ("Inspector Rybakowski"). Notes of Testimony, June 16, 2023 2023 ("N.T.
(N.T. I") at 37, 51-52 and 58.
Exhibit 5-017 is an Initial Notice of Violation and Order: Unsafe Building assessed on April, 6, nd Order.
2018, declaring that "This Property has been declared Unsafe by the Department of Licenses and
Inspections," Inspections," explaining that "[a]n unsafe structure is is one that is found to be dangerous to the
life, life, health, property property or safety...of
safety ... of the occupants of the structure" and identifying the location of
the structure as "entire site," specifically the specifically "roofing "roofing or roofing
roofing components... or any portion of the components...or
roof framing ... with signs framing.. signs of deterioration...incapable deterioration ... incapable of supporting all nominal loads." Pet'r's
Ex. 5.017 Ex. 5-017. The Notice informs the property property owner that he has "the right to appeal these
violations within five five (5) days for Unsafe or Imminently Dangerous violations." Id. Exhibit 5-
091-094 is aViolation Notice and Order to Correct;
is a Correct: Unsafe dated January 15, I5, 2022, which
5-091-
identifies the conditions in violation as the "main roof and soffit collapsing." Pet'r's Ex. 5.-09L-
--- -- ---------
094. As the April April 2018 violation regarding regarding the condition of the roof remained open at the time
of the January January 2022 violation, the Court found found that the condition of the roof described in in April
April
2018 was unchanged unchanged as of January 2022. The January 2022 violation remained open at the time time
evidentiary hearing.
of the evidentiary hearing. N.T. at 51.
5L. Exhibit 66includes photographs taken during the January
2022 inspection 2022 of the inspection of the Property.
Property.
Inspector Rybakowski Inspector R ybakowski testified testified that concern [was]
that "the area of concern [was] the structural members members of
the soffit retum return that is
is part
part of the main roof assembly[,]"
assembly[,]" which was
was "unsafe because the
structural members were open to the elements...[tJhey elements... [t]hey showed signs of wood rot," which
condition was depicted in was depicted in Exhibit
Exhibit 6-001. Id.
[d. at
at 55-56,
55-56, 59.
59. Though Inspector
Inspector Rybakowski
Rybakowski
acknowledged that some repair repair work had apparently apparently been performed performed on the roof, "it has not been
signed off by aadesign signed design professional. To the department... the repairs have not been completed."
department...the
Id. 66. The Department [d. at 66. Department of Licenses Licenses && Inspections
Inspections "want[s] to make sure that that [the
[the roof] is able
to support nominal loads. At At [the
[the January 2022 inspection, inspection, [Respondent]
[Respondent] was spoken to and was
asked to provide provide an engineer's report." Id. 55.
Id, at 55,
Though no official notice to vacate the premises premises was posted
posted at the Property,
Property, the
Pennsylvania Administrative Code states that "[w "[w]hen
[hen aabuilding code official determines the
existence of an unsafe condition, the building building code official shall order the vacating of the
building or structure," building structure," and that the notice to the property owner "shall contain the order to vacate property owner
the the building, building, structure or seal the the equipment out of service and state the the unsafe
unsafe conditions." 34
Pa. Code §$ 403.84(b), Pa. Code 403.84(b), (c).
(c). It appears from
It appears from Inspector Inspector Rybakowski's testimony that, Rybakowski's testimony that, rather than rather than
order Respondent Respondent to vacate the building, building, Respondent
Respondent was given the opportunity to appeal appeal the
initial notice of violation, and then was personally personally instructed by
by the onsite code enforcement
inspector and Inspector Rybakowski himself on the specific area of the roof that was unsafe and
what was needed needed to comply with the to comply the Department of Licenses Licenses && Inspections.
Inspections. N.T.
N.T. I
I at
at 55, 60, 64;
Pet'r's Ex. 5-017. It is Ex. 5.017.It is uncontroverted uncontroverted that the
the Property
Property was
was deemed
deemed unsafe.
unsafe. Per
Per the
Pennsylvania Pennsylvania Administrative Code, Code, an
an unsafe building
building cannot be legally occupied.
legally occupied
Respondent Respondent argues argues that because he
he "has continually
continually resided in his Property, Property, he met
met the
requirements requirements of occupancy of the Property,"
Property," and makes note that "there was was [nothing]
[nothing] issued by
L & Ito [Respondent] L&Ito [Respondent ] telling telling him that he could no longer longer occupy
occupy the premises
premises and to evacuate
the premises." the premises." Notes of Testimony, Notes of Testimony, February February 5, 2024
2024 ("N.T. IV") at
(NT.IV") at 5, 8. Further, Further, Respondent
Respondent
"Petitioner did not offer anything other than this speculation on the part argues that Petitioner Mr.
part of Mr
Passyn Passyn [neighbor]
[neighbor] that Mr. Saunders did not occupy the Property."
Property." Andrew Passyn, Passyn, the President
of the of Board of the Board of Stewards Stewards of
of Saint
Saint Vladimir's Church ("Passyn"), Vladimir's Church (Passyn"), who works in who works in the Church
the Church
immediately immediately next door to Respondent, Respondent, testified that Respondent was not living at the Property,
impossible "even
that it was impossible "even [to]
[to] get
get on the Property
Property to access the doors," but that after the
Petition was filed, he began seeing seeing Respondent
Respondent at the Property Property "periodically; though though he was not
there all the there all the time ... when we time..when we had
had record
record cold in December, cold back in December, he he was not there
was not there for weeks on for weeks on
end." N.T. I I at 97-98. Passyn's
at 97.98. testimony was Passyn's testimony was rebutted by Respondent's Respondent's witness,
witness, another
another
neighbor "who credibly neighbor credibly testified that...she.
that... she....was
was seeing
seeing [Respondent]
[Respondent].....almost
almost every
every day. There
was no testimony whatsoever offered by Petitioner that rebuts or otherwise contradicts that
Id
testimony." Id. testimony."
Findings Findings of fact made during during an evidentiary hearing hearing in an Act
Aet 135 matter, including
credibility determinations credibility determinations of of witnesses
witnesses made
made by
by the
the lower court, are
lower court, afforded great are afforded great deference.
deference. In
In
G & G Invs., LLC g_&Glmys., v. Phillips Simmons Real LL.Cy.Phillips Real Est. Holdings, Holdings, the standard of review review was described
as follows: as follows
Our review in Our in a a non jury case is limited to non-jury to whether the the findings of thethe trial court are supported by supported competent evidence and whether the by competent the trial trial court committed error in in the the
application application of of law.
law. We
We must
must grant
grant the
the court's findings
findings of
of fact
fact the
the same
same weight
weight and
and effect
effect
as the verdict of aajury jury and, accordingly, may accordingly, may disturb the non jury non-jury verdict only
only if the
court's findings court's are unsupported findings are unsupported by by competent evidence or competent evidence or the the court
court committed
committed legal
legal
error that affected the outcome of the trial. It is not the role of an appellate appellate court to pass
pass
on the credibility of witnesses; hence we will not substitute our judgment judgment for that of the
fact[-finder Thus, fact[-]finder. Thus, the the test
test we apply is
we apply is not whether we not whether we would
would have
have reached
reached the
the same
same
result on the evidence presented, presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion. conclusion
G & G Invs., LLCy. G&GInvs,LLC v. Phillips Phillips Simmons Real Est. Holdings, [Holdings, LLC,
LLC, 2018 PA Super 80,183 Super 80, 183 A:3d
A.3d
478 (2018)
472, 478 (2018) quoting Agostinelli Agostinelli v.
v. Edwards,
Edwards, 98 A.3d
A.3d 695, 704
704 (Pa.Super.
(Pa.Super. 2014), appeal
2014), appeal
denied, 631 denied, 631 Pa.
Pa. 734, 113 A.3d
734, 113 A.3d 278
278 (2015)
(2015) (internal citations omitted).
(internal citations omitted).
Though the the record does not
not disclose
disclose any instance in
in which Respondent
Respondent was affirmatively was affirmatively
instructed to vacate the premises, premises, the Court's finding that the premises premises was not legally occupied legally occupied
during the during twelve months the twelve prior to months prior to the
the filing of the
filing of the Petition
Petition is supported by
is supported by sufficient evidence.
sufficient evidence.
The The Property was the Property was the subject of an subject of an active
active unsafe
unsafe violation
violation dating
dating back to April
back to 6,
April 6th, 2018 at
at the
the
time time of filing. N.T. I I at 37. An unsafe structure is is "one that is found to be dangerous dangerous to the life,
life,
health, health, property, property, or safety safety of the
the public occupants of the public or the occupants the structure by by not providing
providing
minunum safeguards to minimum safeguards to protect... occupants... because such protect...occupants...because such [structure] contains[s] ... such faulty [structure] contains[s]...such faulty
construction or unsafe foundation that partial possible." Id. According partial or complete collapse is possible." According to
the Pennsylvania Pennsylvania Administrative Administrative Code, aadeclaration that aastructure is is unsafe
unsafe must
must be
accompanied by accompanied by aanotice to vacate. 34 Pa. Code Code §$ 403.84(b),
403.84(b), (c).
(e). Under Pennsylvania
Pennsylvania law,
law, the
structure structure cannot be legally occupied.
be legally occupied.
Nevertheless, the Court considered the fact that the Property Property was never posted posted with aa
notice to vacate, or that any notice to vacate that may have been posted posted was not included in
j
Petitioner's evidence, Petitioner's evidence, as as well as the
well as testimony of
the testimony of Respondent's witness, Joan Elliott.
Respondent's witness, Elliott. Ms. Elliott, Elliott,
aaneighbor of Respondent's, neighbor of testified that Respondent's, testified that she she often
often saw Respondent coming saw Respondent coming and and going,
going, that
that they
they
"talked very often," and that she has "never known him to be aanuisance." talked nuisance" N.T.
N.T, I
I at 124-125.
Elliott also testified that she lives four houses down and across the street from Respondent, Respondent, and
has only observed has only observed his his Property
Property from the street.
from the street. Id. at 128.
[d. at
In In weighing weighing the credibility of Ms.
the credibility Me. Elliott's testimony, testimony, and
and whether it is
whether it is probative of the the
fact of Respondent's Respondent's continuous residence in the Property, the Court considered the conflicting
testimony testimony of Passyn. Id. at 91.
Passyn. [d. 9L. Passyn Passyn testified that he knew Respondent Respondent did not reside at the
Property "by personal Property "by personal observation," that he is there three to four times a aweek, and that the
Church has Church has surveillance cameras. [d, surveillance cameras. Id. at at 98.
98. A
A few months after
few months after the Church filed the Church filed the
the Petition,
Petition,
Passyn Passyn testified "[w]e started testified that "[wle started seeing seeing more
more and more of Respondent,"
Respondent," that
that "[h]e
"[hJe was there
periodically, periodically, but not all but not all the
the time ... for example, time...for example, when we had when we the record cold had the cold back
back in
in December,
December,
he he was not not there there for
for weeks
weeks on end."
end," Id. Though
Though he frequently
frequently observed Respondent Respondent at
at the
the
Property, Property, it was Passyn's Passyn's belief that Respondent Respondent used the Property Property to store personal personal property
property
which filled both the interior and exterior of the Property Property to the point that there were no
functioning points functioning points of of ingress
ingress or
or egress.
egress. Id. at
at 93-94.
93-94.
During Petitioner's During opening statement, Petitioner's opening statement, counsel for for Petitioner
Petitioner argued that
that "the evidence is
is
going to going to show show that the Property that the Property was
was not
not aaresidence...but
residence... but that
that [Respondent] has periodically [Respondent] has periodically
stayed at stayed at the the Property."
Property." N.T.
N.T. IIat
at 8.
8. The
The Court
Court found
found that
that the weight of
the weight of the evidence supports the evidence supports this this
interpretation. interpretation. Petitioner's depict aaproperty Petitioner's exhibits depict property so congested congested with
with debris and scrap material and scrap material
that it is implausible implausible that aaperson person could have traversed through through it, let alone habitually habitually resided
there, without great great difficulty.
difficulty. Further, the condition of the roof of the Property Property was declared to
be unsafe, be rendering the unsafe, rendering the Property Property not
not legally occupiable as legally occupiable as a matter of a matter of law
law according
according to
to the
the
Pennsylvania Administrative Code. Pennsylvania Administrative Code. Elliott testified that Elliott testified she believed that she believed that
that Respondent
Respondent lived
lived in
in the
the
Property, but had Property, but had never never been
been on or inside
on or the Property inside the and that Property and that she
she lived
lived four houses down
four houses down and
and
the street. Her across the Her testimony testimony that she often saw Respondent Respondent outside of
of the
the Property
Property does not
not
rebut rebut Passyn's, Passyn's, a neighbor's, testimony a nearer neighbor's, testimony that that Respondent
Respondent frequently
frequently visited
visited the
the Property
Property to
unload unload materials materials on its its grounds,
grounds, but
but did continuously reside did not continuously reside there.
there. The
The Court reasonably
reasonably
concluded that Respondent Respondent did not occupy occupy the Property,
Property, and that Respondent Respondent could not legally legally
occupy the occupy the Property.
Property
properly found
3. The Court properly found that that Petitioner
Petitioner established the conditions for for
Conservatorship required by Conservatorship required by P.S. $§1105(d)(5).
1105(d)(5).
Section 5(d)(5) Section of the 5(d(5) of Abandoned and the Abandoned and Blighted Blighted Property Conservatorship Act Property Conservatorship Act requires requires aa
finding that Petitioner has established at least three of aalist of nine enumerated conditions in finding
order to order to appoint appoint a
a Conservator:
Conservator:
(i) building or physical (i) The building physical structure is apublic is a public nuisance.
nuisance
(ii) The building is
The building is in
in need
need of substantial rehabilitation and no no rehabilitation rehabilitation has
has taken
taken
place place during during the previous
previous 12 months.
months
(iii) The (iii) The building
building isis unfit for human habitation, occupancyoccupancy or use.use (iv) The (iv) The condition and vacancy vacancy of the building
building materially
materially increase the risk of fie fire to the building and to adjacent building adjacent properties.
properties.
(v) The building (v) building is subject to unauthorized entry leading to potential potential health and safety hazards and one of the following applies:
following applies
(A) The (A) The owner
owner has failed to
has failed to take
take reasonable
reasonable and and necessary necessary measures
measures to secure the to secure the
building. building
(B) The municipality
municipality has secured the buildingbuilding in order to prevent prevent such hazards after the owner has failed to do so so. (vi) The (vi) The property
property isis an
an attractive
attractive nuisance
nuisance to to children, including, including, but
but not
not limited
limited to,
to, the
the
presence presence of abandoned wells, shafts, basements, excavations and unsafe structures structures.
(vii) The presence (vii) presence of vermin or the accumulation of debris, uncut vegetation vegetation or physical physical
deterioration of the deterioration grounds has the structure or grounds has created created potential
potential health
health and
and safety hazards
hazards and
the owner has failed the owner failed to to take
take reasonable and necessary reasonable and necessary measures measures to to remove
remove the
the hazards.
hazards.
(viii) The (viii) dilapidated appearance The dilapidated appearance or other other condition
condition of the the building building negatively
negatively affects
affects the
the
economic well-being well-being of of residents residents and
and businesses
businesses in close proximity proximity to to the
the building,
building, including
including
decreases in property property value and loss of business, and the owner has failed to take reasonable necessary measures to remed and necessary remedy y appearance or the condition.
(ix) (ix) The
The property
property isis an
an attractive
attractive nuisance
nuisance forfor illicit
illicit purposes,
purposes, including
including prostitution,
prostitution, drug
drug
use and and vagrancy.
vagrancy
I I 68 Pa. 68 Pa. Stat.
Stat. Ann.
Ann. §$ 1105
1105 (West). The Court
(West). The Court found
found that Petitioner established that Petitioner established P. S. §$ 1105(d)(5)(i), P.S. 1105(d)¥5¥9),
(ii), (iv) (in), (iv) and and (vii).
(vi)
Respondent argues that Respondent argues that "not a a single
single witness
witness or person
person was
was called from the
the
neighborhood, neighborhood, from from the community, from
the community, from the church or the church or any
any place else to
place else corroborate," and to corroborate," and asks
"...where's where's the testimony any eredible testimony from any credible source other than Mr. Passy?
Passyn? No testimony
testimony from
the --— no witnesses, witnesses, no officials,
officials, not even L &I, & I, that -— that the Property Property presented aadanger to the
public." N.T. IV at public." at 12, 17.
17. Counsel
Counsel for
for Respondent
Respondent "challenge[d] Your Honor "challenge[d] Your and anyone Honor and anyone else
else to
to
say say that, that, when when looking
looking at
at that
that picture, any pictures picture, any pictures presented, presented, that
that it showed blight."
it showed blight." N.T. at NT IV at
14-15. 14.15. When When asked asked to
to be
be more specific about
more specific about which which pictures
pictures he referenced, counsel he referenced, counsel for for
Respondent stated that Respondent that "the pictures speak for themselves." Id. Crucial to Respondent's argument pictures speak
"the natural barriers and the fencing are the fencing and all of that around the Property"
Property" which obstructed
"any public "any public view of the Property.
Property. And, therefore, how could you you say that it's blighted when you
can't see it?"
it?" Id. at 16.
Id. at
Findings Findings of fact made during during an evidentiary
evidentiary hearing
hearing in an Act
Aet 135 matter, including
credibility determinations of witnesses made by credibility by the lower court, are afforded great deference.
deference. In
G & G Invs., LLC v. Phillips Simmons Real _&Glnvs,LLCy.Phillips Est. Holdings, Rea!Est. Holdings, the standard of review was described
as follows: as follows:
Our review in aanon review in jury case is non-jury is limited
limited to
to whether the findings
whether the of the findings of the trial court are trial court
supported by supported competent evidence by competent and whether evidence and whether the trial court the trial court committed committed error
error in
in the
the
application of law. We must grant application grant the court's findings findings of fact the same weight weight and effect
as the verdict of aajury jury and, accordingly,
accordingly, may
may disturb the non jury verdict only if the non-jury
court's findings findings are unsupported
unsupported by competent evidence or the court by competent count committed legal legal
error that affected the outcome of the trial. It is not the error that affected the outcome of the trial. It is not the role of of an appellate court to
appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment judgment for that of the fact[-]finder. facet[-finder. Thus, Thus, the
the test
test we
we apply
apply is not
not whether
whether we we would
would have
have reached
reached the
the same
result on the evidence presented, presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion. conclusion.
G & G Invs., LLC v. G&Glvs.,LLC Phillips Simmons Real Est.
• Phillips Est. Holdings, LLC, 2018 PA Super 80, 80,183
183 A.3d
472,478 472, 478 (2018) quoting Agostinelli (2018) quoting Agostinelli v. Edwards, Edwards, 98 A.3d 695, 704 704 (Pa.Super.
(Pa.Super. 2014), appeal
appeal
denied, 631 Pa. 734, 113 A.3d 278 278 (2015)
(2015) (internal
(intemal citations omitted).
The Court's findings findings of blight
blight will be addressed individually.
individually.
(i) (i) The building or physical The building physical structure is a apublic
public nuisance.
The statute The statute defines defines "public
"public nuisance" in section nuisance" in section 1103:
1103: "[a]
fa] property that, because property that, of because of
physical condition or use, physical use, has been declared by by the appropriate
appropriate official aapublic public nuisance in
in
accordance with the local housing, building, health, fire or related code, or is determined to be aa housing, building,
public public nuisance by the nuisance by the court."
At At common common law, "[a] public
law, "[a] public nuisance nuisance is
is an unreasonable
unreasonable interference with aaright right
common to to the the general public; circumstances that constitute a general public; a public nuisance nuisance are, among other
things, conduct that things, that is is proscribed
proscribed by
by statute or ordinance, or conduct that interferes interferes with public
public
peace." Comonwealthy.Ebaugh, peace." Commonwealth v. Ebaugh, 783 A.2d 846, 783 A.2d 846, 850
850 (Pa.
(Pa. Commw. Ct. 2001);
Commw. Ct. 2001); Muehlieb v.
Muehliebv,
City of Philadelphia, City Philadelphia, 574 A.2d 1208 1208 (Pa.
(Pa. Commw. Ct. 1990).
The Court reasonably reasonably found Property was found that the Property was a public nuisance a public nuisance under both both the
statutory and common law definitions. The main structure on the building statutory building was declared unsafe in
2018 by the 2018 by the Department of Licenses Department of Licenses && Inspections. N.T. I Inspections. N.T. at 37, I at 37, 51-52 and 58;
51-52 and 58; Ex. 5-039.
5-039.AA rear
rear
structure on the the Property
Property was declared
declared imminently dangerous, and was imminently dangerous, was ultimately demolished demolished in
in
2021 by City of Philadelphia by the City Philadelphia after it began to slide onto aaneighbor's it began neighbor's property.
property. Id. at 41-43.
Prior Prior to to the City's undertaking the City's undertaking the demolition of of the
the rear
rear structure,
structure, Respondent
Respondent signed
signed aaFinal
Final
Order and Injunction Injunction to
to Comply
Comply Violations stipulated that Violations which stipulated that he he would repair the
would repair garage
the garage
structure, and that structure, subject premises that "the subject premises is is a
a nuisance
nuisance per
per se and presents
presents a
a hazard
hazard to the safety,
safety,
health, and welfare of the neighbors, public in general."
neighbors, and the public general." Ex. 5-19-020. Appropriate Appropriate
officials made officials made these these findings, as well
findings, as as others well as others related
related to
to the debris on
the debris on the
the Property, that satisfy Property, that satisfy
the definition of public public nuisance
nuisance supplied
supplied by Act 135.
by Aet
Contrary to Contrary to Respondent's argument that Respondent's argument that no "no officials,
officials, not even L
not even L&& II [testified] that the [testified] that the
Property Property presented presented aadanger danger to the public,"
public," Inspector
Inspector Rybakowski
Rybakowski testified that "[t]here "[tJhere [were]
[were]
open junction junction boxes, open outlets, boxes, open outlets, exposed exposed wire ... aheavy
wire...a heavy fire load in the interior of the
Property... combustible materials, Property...combustible materials, [and]
[and] propane
propane tanks"
tanks" when
when the
the Property
Property was inspected in was inspected in
2022. N.T.
N.T IV at 12, 17; N.T.
IT;N. T. IIat 20. In order to address these concerns, "the CLIP CLIP (Community
(Community
Life Life Improve Improve Project)
Project) has gone to
has gone to the
the Property
Property several times... through court order times...through order.....and and
Id. 31.
removed the debris." [d.
City of Philadelphia
The City Philadelphia undertook undertook demolition of imminently dangerous of the imminently dangerous rear garage garage
I
structure, declared the main structure unsafe because of its defective roof, and cleared dangerous dangerous
flammable materials from flammable materials the interior from the and exterior interior and exterior of
of the
the Property. Given this
Property. Given official action, this official action, and and
Passyn's testimony of his Passyn's testimony his attempts attempts to persuade Respondent to persuade Respondent to to clear the materials
materials from
from the
the
Property Property and and that Respondent
Respondent erected an illegal illegal fence
fence covered with
with aablue
blue tarp
tarp in order to conceal
the the three to six three to six foot foot high accumulations
accumulations of
of scrap
scrap and
and combustible
combustible materials
materials from
from neighbors'
neighbors'
view, (N.T. IIat 94), the Court reasonably view,(N.T. reasonably found that the Property Property poses
poses a
a public
public nuisance.
(ii) (ii) The building is in need building is ofsubstantial rehabilitation and no rehabilitati need of rehabilitation no took
place in place in twelve months
months prior the filing prior to the of the filing of the petition.
petition
"Substantial rehabilitation" is defined in the act as "repairs, replacements Substantial replacements and
improvements" improvements" that exceed 5% of the property's exceed ""115% property's value after completion completion of all repairs,"
repairs," or
where where "more than one major major building
building component is being replaced,"
replaced," which includes "roof
structures" and structures" and "wall or floor "wall or structures." P.
floor structures." PS,S. $§ 1103.
1103
The main The main physical
physical structure
structure on
on the
the Property
Property was declared unsafe was declared by the unsafe by the Department
Department of
Licenses && Inspections. Licenses Inspections. N.T.
N.T I 51. The detached garage I at 51 garage structure was declared imminently imminently
dangerous on March 9, 2021, eight days after the Petition was filed. Ex.
Ex. 5-039. The conditions of
the garage garage structure existed since at least August August 2019
2019 when
when the City of Philadelphia the City brought aa Philadelphia brought
complaint against complaint against Respondent, Respondent, resulting
resulting in an Injunction Comply Violations with which Injunction to Comply
Respondent Respondent failed to comply. Ex.
to comply. Ex. 5-019.
5-019. Ultimately,
Ultimately, the City demolished the City demolished the
the stricture. N.T. I
structure. N.T. at
I at
43-44. 43.44.
Inspector Rybakowski Inspector testified to Rybakowski testified to Exhibit Exhibit 6-018, "a photograph taken "a photograph of the taken of interior of
the interior of
the Property the showing that Property showing there is that there is aasection
section of
of the plaster work
the plaster that has work that has fallen or is fallen or dislodged
is dislodged
from the interior section" which indicates "a "a lack of maintenance and that there is an issue with
the the interior structure." Ex.
interior structure." 6-018; N.T.
Ex. 6-018; N.T. I at 28-29.
I at 28-29. Though
Though Inspector
Inspector Rybakowski acknowledged Rybakowski acknowledged
that "some repair that "some repair work...was work ... was done
done to
to the structural members"
the structural members" between the initial between the initial unsafe unsafe
violation in in April
April 2018 and the January January 2022 follow-up
follow-up inspection
inspection to which Inspector Inspector
Rybakowski Rybakowski referred referred in his
his testimony,
testimony, Respondent
Respondent offered no evidence offered no evidence about about when
when this
this work
work
was done or its substance. [d.
Id. at 55. Inspector Rybakowski's 55. Inspector Rybakowski's concerns about the structure
remained, remained, as as "there was no
no permit
permit pulled
pulled for
for the repair
repair of that
that assembly"
assembly" and no
no assurance "that
"that
the the work was done adequately."
adequately."
Further, Further, at at the
the time
time the Petition was
the Petition filed, the was filed, detached garage the detached garage structure structure was
was in
in a
a
condition that that eight
eight days
days later
later would
would be declared imminently imminently dangerous,
dangerous, "had already
already
collapsed... into the neighbor's collapsed...into neighbor's yard,"
yard," and
and which Respondent
Respondent had agreed to demolish 13 months had agreed
prior. Id.
[Id, at 42-43.
Both the main and Both the and detached structures at detached structures at the Property were the Property were in
in need of substantial
need of substantial
rehabilitation. rehabilitation. The The Department of Licenses Department of Licenses && Inspections Inspections designated
designated them
them unsafe and
unsafe and
imminently dangerous, imminently dangerous, respectively.
respectively. Though Respondent performed Though Respondent performed some some rehabilitation
rehabilitation to
to the
the
roof of the roof of main structure, the main structure, the the detached garage structure detached garage structure was was left
left to
to the city to
the city to demolish, and demolish, and
nothing nothing in the record indicated when the roofing work took place, place, or whether it remediated the
unsafe unsafe conditions.
conditions.
(iii) (iii) condition of The condition of the building materially increased building materially increased the risk offire risk offire to the building building
and adjacent buildings.
Inspector Rybakowski testified that "[t]he Inspector Rybakowski "[t]he interior of the Property Property had a
a large
large amount of
combustibles," that combustibles," that there "were open there "were open junction boxes, open junction boxes, open outlets, outlets, exposed
exposed wire," and there
wire," and "was
there "was
aaheavy fire load heavy fire load in in the interior of
the interior of the
the Property."
Property." N.T.
N.T. IIat
at 20.
20. In
In Exhibit 6-022, he
Exhibit 6-022, he identified identified aa
propane propane tank tank and various chemicals. [d.
various chemicals. Id. at 25. Finally, Finally, Inspector
Inspector Rybakowski
Rybakowski identified
identified four
four
open violations open assessed against violations assessed against the the Property, one for
Property, one "combustibles," which for "combustibles," he describes which he as "a
describes as "a
large assemblage large assemblage of of material belongings, which material belongings, which are are all
all fire
fire hazards.
hazards. They all have
They all have an
an individual
individual
combustible or or flame
flame points,
points, but
but the assemblance of those materials materials are combustibles. There is is
also propane tanks tanks that
that were
were specifically pictured pictured that is
is a
a source concern." N.T.
source of concem" NT. I 74-75.
I at 74.75,
Passyn testified Passyn testified that that he observed aafire
he observed fire at
at the
the Property
Property in 2020, and
in 2020, and Petitioner
Petitioner introduced
introduced aa
Report of Report of Fire Fire Alarm
Alarm from
from June
June 17,
17, 2020
2020 stating that the
stating that fire department the fire department found found the cause of
the cause of
alarin to alarm to be be "rubbish
"rubbish in
in the
the rear of the
rear of the Property." N.T. IIat Property." N.T. at 104-105;
104-105; Ex. 9.
Ex. 9
Given the testimony testimony about previous
previous fires at the Property, Property, and the accumulation of
flammable materials materials which
which the
the Department of Licenses Department of Licenses && Inspections Inspections identified
identified as
as aahazard
hazard
warranting warranting aaviolation notice, the violation notice, Court reasonably the Court reasonably found found that
that the
the Property
Property materially
materially increases
increases
the risk the risk of of fire.
fire.
(iv) (ivy) The presence of vermin or accumulated debris has created potential health and
safety hazards and the owner has failed to take reasonable and necessary necessary
measures to remove the hazards.
Petitioner Petitioner provided provided ample
ample testimony
testimony regarding
regarding accumulation of debris accumulation of debris on on the
the Property,
Property,
corroborated by photographs & IIviolations photographs and evidence of L & citing the accumulation of debris.
violations citing
Inspector Inspector Rybakowski Rybakowski testified "Exhibit 6-011 shows...a testified "Exhibit shows... alarge amount of large amount of material
material and
and
belongings and accumulation belongings and of debris, accumulation of debris, trash, and other trash, and other effects
effects in
in the
the rear yard of
rear yard of the
the Property"
Property"
CLIP (Community and that CLIP Improvement Project)
(Community Life Improvement Project) "has gone gone to the Property
Property several
times ... to remove the debris," indicating times...to indicating not just just the presence
presence of debris, but a a determination
made by by the City of Philadelphia Philadelphia that the debris posed posed a
a danger
danger that required abatement. N.T.
required abatement, N.T II at
25, 31. The Department of Licenses 25,31, Licenses && Inspections Inspections issued aanumber of violations against against the
Property for for "trash." Id.
Id. at 47; Ex. 5-009; Ex. 5-004; Ex. 5-026; Ex. 5-037.
5-037 Passyn
Passyn testified that
church events "have been interfered interfered with because
because there's
there's so much
much debris and open containers and open
and stagnant water that it breeds mosquitoes." N.T.
NT. II at 95. Passyn
Passyn also testified that he
addressed his concerns with Respondent numerous times, times, but that Respondent either failed to
remove it, material. N.T.
it, or his efforts to address the issue were undone by additional material, N.T. I I at 93-95.
The Court reasonably found found that
that the
the accumulation of debris on the the Property
Property poses
poses aa
safety hazard, and safety hazard, and Respondent Respondent had
had not
not taken the necessary
taken the measures to necessary measures to remove remove the
the hazard.
hazard.
4. The Court did not abuse abuse its
its discretion in overruling overruling any
any of Respondent's objections Respondent's objections
to the evidence offered and/or testimony solicited byby Petitioner during during any of the
any
relevant hearings.
hearings.
Respondent's 1925(b) statement presents presents aageneral encompassing each and general argument encompassing
every adverse evidentiary ruling made over the course of three hearings.
hearings. Resp't's 1925(b)
Resp't's Rule 1925()
Statement of Errors Complained Statement of Complained of of on
on Appeal at ¶ 3, 4.
Appeal at3, Though Respondent 4. Though Respondent fails to cite to to cite to any
any
specific rulings rulings that it it believes were
were in error,
error, Respondent's objections which were Respondent's objections were overruled by overruled by
the the Court will be be grouped
grouped as logically as
as logically possible.
as possible.
Some similarly Some similarly themed arguments proffered themed arguments proffered in Respondent's 1925(b)
in Respondent's 1925() Statement can be Statement can be
overruling Respondent's
summarized to say: "The Court abused its discretion in overruling objections to Respondent's objections
Petitioner's evidence and Petitioner's witnesses' testimony, and therefore based its finding that
the Property is blighted Propenty is blighted and abandoned on aatainted evidentiary record." At At oral argument on
Respondent's Respondent's Motion for Post-Trial Relief, counsel for Respondent stated that that "the testimony
presented by Petitioner presented by was confined Petitioner was confined solely to that solely to of Mr.
that of Mr. Passyn.
Passyn. Yet ... Mr. Passy Yet...Mr. Passyn
gave ... hearsay testimony... gave...hearsay that parishioners testimony...that complained." N.T.
parishioners and others complained." NT. IV at 12.
I2. He noted his
belief that, because because "the challenges to even the presentation of such evidence the challenges evidence (regarding (regarding the
condition of the Property)
Property) by
by Respondent
Respondent were overruled by the Court...that...the Court... that... the Court may
have been inadvertently inadvertently led down aaprimrose primrose path
path based solely on conjecture, embellished
testimony — and that being testimony -and being the hearsay testimony included --— concerning any condition of the
Property." Id. at 14. Finally, counsel for Respondent Property." [d. Respondent claimed that "[f]or "[fJor the most part, almost
none of the pictures pictures or photographs
photographs offered by Petitioner have aadate on them. We don't know
when. We do know that there were some dates that date back to 2010, 2015, 2017, 2018. They're
totally irrelevant." Id. at 15-16.
evidentiary rulings
The lower court's evidentiary rulings will not not be disturbed unless
unless the
the court is
is found
found to
to
have abused its Tillery v. Children's its discretion. Tillery_v. Children's Hosp. of Philadelphia, 156 A.3d Hosp. of A.3d 1233, 1233, 1234
(201.7). A (2017). A trial court abuses its its discretion
discretion where
where it misapplies
misapplies the law
law in away that
in such a is
that is
manifestly manifestly unreasonable or exercises its judgment judgment because of bias, prejudice, ill will or partiality partiality
as shown by by the evidence in in the record. Com. v.
record. Com, , Melvin, 103 A.3d 1, 35 35 (2014).
(2014),
Respondent's objections occurred during Respondent's objections during the testimony of two witnesses: Inspector
Rybakowski, and Passyn. Respondent objected to testimony on several bases which will be
discussed one at aatime.
i., Respondent's
Respondent's hearsay objections objections
Hearsay Hearsay is an out of court statement offered for for the truth
truth of the
the matter
matter asserted in
in the
the
statement. Com, Com. v. Begley, 780 A.2d 605, v, Begley, 605, 623 623 (2001).
(2001). Hearsay
Hearsay is inadmissible because such aa
statement is statement is presumed to be presumed to be unreliable since the unreliable since declarant cannot the declarant cannot testify testify to
to its accuracy.Id.
accuracy. Id.
I Factual findings cannot be based exclusively
Compensation
Inspector Inspector Rybakowski
exclusively on hearsay evidence.
Compensation Board of Review, 367 A.2d 366 (Pa.Cmwlth.
A.24 366
evidence. Walker v.
(Pa.CmwIth. 1976).
1976)
inspected the Property
Rybakowski testified that he inspected Property in Unemployment y.Unemployment
in January
January 2022, noting
"the [Code that "the [Code Enforcement Inspector]
Inspector] had already been into the basement area and had
documented the documented conditions of the conditions of the
the Property."
Property." N.T.
N.T I at 27.
I at 27. Inspector
Inspector Rybakowski described how Rybakowski described how
he conducted the inspection. Counsel for Respondent the inspection. Respondent stated that:
that:"I'm
I'm going
going to object to
to object to that
testimony and move testimony move to to strike itit on the basis basis of hearsay
hearsay because
because he's basing
basing his opinion on
information from information from third third parties."
parties." Id.
Id. Inspector
Inspector Rybakowski
Rybakowski testified
testified that
that the
the Code
Code Enforcement
Enforcement
Inspector Inspector had previously previously been to the basement of the Property, Property, and Inspector
Inspector Rybakowski's
Rybakowski's own
inspection inspection focused on the the roof. Id. The
roof [d. The witness did not not repeat
repeat aastatement made
made out of court. He
testified to his testified to his own own knowledge
knowledge of
of why he was
why he was at
at the Property: to
the Property: to inspect
inspect the
the roof.
roof. No
No hearsay
hearsay
Respondent's objection was properly evidence was offered, and Respondent's properly overruled.
overruled.
During Passyn's testimony, During Passyn's testimony, he testified that new parishioners parishioners express
express fear because the
Property "looks dangerous Property "looks dangerous and and dilapidated."
dilapidated." Id.
Id. at
at 96. Respondent objected, 96. Respondent objected, and and the Court
the Court
allowed Petitioner to pursue pursue the topic deciding whether the testimony topic before deciding testimony should be stricken.
Passyn complaints regarding Passyn was then asked whether the church ever submitted complaints regarding the condition of
the Property, to the Property, to which which he answered that
he answered it had
that it had not, but that not, but that the
the Board
Board of Stewards approved of Stewards approved the
the
filing filing of the Act Id. at 96.97, Aet 135 Petition. [d. 96-97. Petitioner's direct examination of Passyn Passyn did not
further explore explore the experiences of the experiences of parishioners parishioners beyond
beyond the
the fact
fact that
that the approved filing the Board approved filing the the
Petition Petition on behalf behalf of the
the church, which presumably represents which presumably represents the the interests parishioners.
interests of its parishioners.
Though Passyn's Passyn's specific statement regarding regarding parishioners'
parishioners' feelings
feelings was not affirmatively affirmatively
stricken, the Court sustained Respondent's Respondent's next objection objection to aaquestion
question about whether Passyn Passyn
complaints from anybody
received complaints anybody other than parishioners about the condition of the subject
Property. Property. Id. at 101.
Id. at 10I.
The Court did not permit
permit Passyn
Passyn to
to testify
testify about the opinions opinions of individuals other than
himself. himself. The testimony following Respondent's The testimony Respondent's initial objection objection merely
merely elicited the
the fact that
that the
the
Board approved approved filing the Petition on behalf of the church, church. Petitioner was afforded the
opportunity to develop opportunity develop the basis for Passyn's testimony about parishioners'
Passyn's testimony parishioners' feelings, feelings, but chose
to. Rather than affirmatively not to. affirmatively strike the prior testimony, the Court properly prior testimony, properly sustained
Respondent's next hearsay objection. The Court did not consider the feelings of other
parishioners parishioners as relayed by Passyn, as evidenced by its decision to sustain Respondent's hearsay
objection. objection,
Though Respondent
Respondent argues frequently and forcefully forcefully that Passyn's
Passyn's testimony is
comprised nearly nearly entirely of hearsay hearsay testimony,
testimony, the record demonstrates that Respondent's Respondent's
objection is without merit. Respondent objection Respondent made only two objections objections to Passyn's
Passyn's testimony during testimony during
Petitioner's direct examination. After allowing allowing the testimony,
testimony, the Court sustained Respondent's Respondent's
hearsay objections.
second hearsay objections. The Court did not abuse its discretion in affording affording Petitioner this this
opportunity, nor opportunity, declining to affirmatively nor in declining Passyn's statement affirmatively strike Passyn's statement about about the feelings
feelings of
parishioners. parishioners
ii. ii. Respondent's relevance objections
Only relevant
relevant evidence
evidence is
is admissible. Commonwealth v.
admissible. Commonwealth Yale, 249 vYale, A.3d 1001,
249 A.3d 1001, 1022
1022
(202 1) ("The threshold inquiry with admission of evidence is (2021)("The is whether the evidence is relevant.")
relevant,")
' Relevant Relevant evidence evidence has any
any tendency
tendency to
to make aafact
fact more
more or
or less probable than it
less probable it would would be
I f
without the evidence. Id. Relevant evidence is not admissible where, among other things, its 1ts
probative value probative substantially outweighed value is substantially outweighed by by aadanger of unfair
unfair prejudice.
prejudice. Lykes v. Yates, 77 Lykes y.Yates, 77
A.3d 27, 27, 33 (2013).
(2013). "Unfair prejudice"
prejudice" refers to any
any evidence that prompts prompts the factfinder
fact finder to make
aadecision on an improper improper basis by
by making it difficult for the jury jury to weigh
weigh all the evidence
impartially. impartially. Id.
For purposes purposes of Act
Aet 135, the filing
filing date is the relevant, fixed point point from which the court
assesses the Property's Property's candidacy for conservatorship.
conservatorship. ("... the court may appoint aaconservator if ("...the
all of the following following apply filing:.. " P.S. §$ 1105(d)).
apply as of the date of filing:..." 1105(d)). Throughout the testimony
Inspector Rybakowski of Inspector Passyn, Respondent Rybakowski and Passyn, objected to the introduction of evidence of the Respondent objected
condition of the Property that predates predates "the relevant statutory period." Respondent argues that
Petitioner was permitted permitted to introduce evidence irrelevant to the condition of the Property at the
time the Petition was filed.
filed. "Under the guise of presenting presenting a
a history dating back to 2010,"
Petitioner Petitioner presented presented evidence of the poor condition of the poor of the the Property
Property irrelevant
irrelevant to the
the condition of
of
the Property the Property at the time time of filing, and prejudicial filing, and prejudicial to Respondent. Resp't's Rule 1925(b)
Respondent. Resp't's 1925(b) Statement
of Errors Complained Complained of on Appeal at at ¶ 4(c). Respondent further claims that "the outer limits"
of the time period described as "at the time of filing" is is "the
the previous twelve months." Id.
A A plain plain reading
reading of the statute does not not support
support Respondent's only evidence of Respondent's claim that only
the condition of the Property Property dated from within twelve months of the filing date is relevant.
relevant. It is
true true that greatest time that the greatest time period period referred
referred to
to at any
any point
point in
in P.S.
P.S. §$ 1105(d)
1105(d) is
is the twelve
twelve month
month
during which Petitioner must prove period during prove the property property was not legally
legally occupied, but nowhere in
is the limit beyond
the statute is it indicated that this twelve months is beyond which evidence of the
condition of the property property becomes irrelevant irrelevant.
Even if the Court were to adopt Respondent's Respondent's interpretation of P.S.
P.S. §$ 1105(d), there is is no
categorically declare all reason to categorically all evidence of the Property Property in the twelve months predating predating the
filing filing of the Petition irrelevant to evidence of the condition of the Property, especially where
evidence has been introduced that the condition of the Property has been largely unchanged.
Evidence of the condition of the Property Property as it existed thirteen months before the date of filing is is
probative probative of the condition of the Property of the Property twelve
twelve months before
before the
the date of
of filing.
Respondent expressed this objection Respondent expressed objection throughout Inspector Rybakowski's testimony, first
to to photographs photographs of the the Property
Propenty taken
taken in
in February
February of 2022. N.T. I
2022.N.T 22. Counsel for Petitioner I at 22. Petitioner
asked Inspector Rybakowski whether he was Inspector Rybakowski was "aware of court orders that have been entered
regarding regarding the conditions of the subject subject Property." Id. at 32. Respondent's objection on relevance
grounds was overruled. grounds overruled. [d.
Id. Inspector Rybakowski testified regarding an order entered in May of Inspector Rybakowski
authorizing the City 2017 authorizing City of Philadelphia Philadelphia to remove debris from the exterior of the subject
premises premises in order to abate violations assessed against the Property by the Department of Licenses
& Inspections., & Inspections.,'12 and testified that violation notices requiring Respondent to remove debris from
his Property Property date back to 2015. Id.
[d. at 33, 50. Inspector Rybakowski Rybakowski then testified regarding the
initial initial notice of the the unsafe structure against the Property structure violation assessed against in April of Property in of 2018.
2018. Id.
Id.
Respondent objected to testimony Respondent objected testimony regarding regarding the detached garage garage structure, which was the subject
of aacomplaint complaint by by the City
City of Philadelphia
Philadelphia dating back to August of 2019. [d.
Id. at 46; Ex. 5-019.
The detached garage garage structure was found in need of remediation in August of 2019. Ex.
5-019. It was not remediated until March of 2021, shortly shortly after the Petition was filed, when the
City of City of Philadelphia demolished the Philadelphia demolished the garage.
garage. N.T.
N.T. IIat
at 43-44.
43-44. Though
Though Petitioner failed to Petitioner failed to
introduce evidence of the condition of the garage that is is contemporaneous with the time the
Petition was filed, filed, the complaint
complaint filed by
by the City in 2019 and the injunction order signed by
Respondent requiring that he remediate the structure in 2020 is Respondent requiring is relevant to the condition of the
iz Respondent's subsequent objection Respondent's subsequent objection to a a letter authority by CLIP CLIP (Community
(Community Life Improvement Project)
describing describing its its efforts to abate the Property Property was sustained on hearsay grounds.
grounds. N.T. Iat 34.35
NT,]At 34-35
structure at the time of filing filing because no remediation took place place until after the Petition was filed.
The history The of violations history of for the violations for accumulation of the accumulation of debris on the debris on the Property
Property is
is relevant
relevant to
to the
the
condition of condition of the the Property at the
Property at the time of filing time of because, as filing because, as Inspector Inspector Rybakowski
Rybakowski testified,
testified,
Respondent Respondent never took took actions to
to adequately
adequately remedy
remedy the violations.
violations. N.T.
NT. I Though Passyn I at 51. Though
testified testified that the amount that the amount of
of debris
debris on the
the Property
Property fluctuated,
fluctuated, the fact that the fact that the
the City
City of
of
Philadelphia Philadelphia had to enter enter the
the Property
Property to
to remove
remove debris by
by court order, and
and had
had to
to do so
so more
more
once, is than once, probative of is probative of the
the fact
fact that
that the
the issue debris on
issue of debris on the
the Property
Property was persistent and was persistent and
intrusive. Id. intrusive. at 93.-94.
Id. at 93-94. Further,
Further, Respondent's
Respondent's failure to cooperate failure to cooperate with the City with the of Philadelphia, City of Philadelphia,
both in removing debris and complying in removing complying with the the imminently dangerous and imminently dangerous and unsafe unsafe structure
violations assessed against against the Property, is probative probative of his capacity to undertake conditional
pursuant to 1105(f).
relief pursuant 1105(9).13 Respondent's objections are without merit, and the Court did not Respondent's objections
abuse its discretion in allowing allowing this evidence.
iii. iii, to the form of Petitioner's Respondent's objections to Petitioner 's questions as leading
and as beyond the scope of cross-examination and
a. Leading questions
It is within the court's discretion to exclude questions questions that are leading during a leading during a direct
examination. Com Com. v. Reidenbaugh,
Reidenbaugh, 422
422 A.2d
A.2d 1126,
1126, 1131
1131 ((1980).
1980). Leading
Leading questions
questions are those
that that are framed to suggest suggest the desired answer to to the witness. Id.
the witness, [d,
"The trial The trial judge
judge has
has wide
wide discretion in controlling discretion in controlling the use of leading the use questions. The leading questions. The
Despite the substantial evidence introduced by 13pespite by Petitioner documenting Respondent's refusal and/or inability to cooperate in in remedying the violations assessed against the property, Respondent was afforded three distinct opportunities capacity to remediate the property opportunities to demonstrate his capacity property himself.
himself See June 16,2023
16, 2023 Court Order,
Order; August
9, 2023 Court 9,2023 Order; October 11, Count Order, 2023 Court 11,2023 Count Order.
I
court's tolerance court's tolerance or or intolerance
intolerance for leading questions will leading questions will not not be reversed on
be reversed on appeal
appeal absent
absent an
an
abuse of abuse of discretion." om., discretion." Com. v. Fransen, 2012 PA Fransen, 2012 PA Super
Super 57, 42
42 A.3d
A.3d 1100,
1100, 1116
1116 (2012)
(2012) quoting
Com. v. Lambert, 765 Com,Labert, 765 A.24 A.2d 306,
306, 360
360 (Pa.Super.2000).
(Pa.Super.2000)
During Inspector Rybakowski's testimony, counsel for Petitioner directed his attention to Rybakowski's testimony,
the initial notice of the unsafe structure violation assessed against against the Property,
Property, and asked if he
had had personally observed "conditions "conditions at the subject Property the subject Property that that are damaged, are characterized as damaged,
decayed, dilapidated, decayed, structurally unsafe, dilapidated, structurally unsafe, or of such or of such faulty
faulty construction
construction or
or unstable
unstable foundation
foundation
that partial partial or complete collapse is possible?"
possible?" N.T.
NT. IIat 38.
38. In doing
doing so, counsel for Petitioner
quoted from quoted the definition from the definition of of unsafe structure given unsafe structure given in the the notice and previously notice and read into previously read the
into the
record, record, and asked Inspector Rybakowski whether, during Inspector Rybakowski during his inspections inspections of the Property, Property, he
he
observed the conditions giving giving rise
rise to the unsafe structure violation.
violation. Respondent
Respondent objected
objected to the
of "unsafe structure" in the question repetition of the definition of question posed posed to Inspector
Inspector Rybakowski.
Rybakowski
The question The question posed by counsel posed by for Petitioner counsel for does not Petitioner does impermissibly suggest not impermissibly suggest to Inspector to Inspector
Rybakowski Rybakowski that that the Property is
the Property is unsafe where it unsafe where it merely
merely incorporates
incorporates the definition of the definition of "unsafe"
"unsafe"
provided by the exhibit. Further, Inspector Inspector Rybakowski
Rybakowski offered substantial testimony testimony about the
condition of the Property Property without the aid of the unsafe structure violation informing informing him as to
which conditions Petitioner asled him to describe.
describe. Respondent's
Respondent's objection
objection is without basis.
On redirect On examination of redirect examination of Inspector Rybakowski, counsel Inspector Rybakowski, counsel for for Petitioner asked if
Petitioner asked if he
he
observed any observed change in any change in the condition of the condition of the
the Property since February Property since February 2022.
2022. Id.
Id. at 80-81. He
at 80.81, He
answered that the condition has not changed changed and stated that "[t]here "[there was still a
a large
large
accumulation of material in the rear of the Property."
Property." Id. at 81. Counsel for Petitioner asked:
"Similar Similar to what's depicted in Petitioner's Exhibit 6-002?" Id. Respondent objected [d. Respondent objected to this
question. Id.
[d. The witness was asked to observe aaphotograph, photograph, described the condition of the
Property Property as unchanged unchanged from
from what
what is in the
is depicted in photograph, then the photograph, then was
was asked to
to confirm his
his
by specific answer by specific reference to the photograph.
photograph. The conclusion that the Property's condition was
similar to to the conditions depicted the conditions depicted in in Exhibit 6-002 was not
Exhibit 6-002 suggested to not suggested to the
the witness
witness by the
the
question, but by question, by the the Exhibit itself. The
Exhibit itself. The question confirming that question confirming Exhibit 6-002 that Exhibit 6-002 accurately accurately
represents the represents the condition of the Property as most the Property most recently recently observed by the witness witness merely
merely restated
restated
the answer the the witness already provided.
witness already Respondent's objection provided. Respondent's objection is is without
without basis.
basis
During During direct examination of Passyn, Passyn, counsel for Petitioner asked the witness:
witness: "... how
"...how
long long has the subject Property the subject Property included an accumulation included an accumulation of of trash,
trash, debris,
debris, and
and flammable
flammable material
material
as depicted in Exhibit depicted in Exhibit 22and and the
the pictures that were
pictures that discussed earlier were discussed earlier today today by Inspector
by Inspector
Rybakowski." Rybakowski." Id. Respondent stated:
Id. at 92-93. Respondent "Iobject stated: "I object to
to the form of
of the question, `flammable the question, 'flammable
this and and flammable that."'
that."" Id.
[d. at 93.
93. Though Respondent's objection was overruled, counsel for
Petitioner restated the Petitioner restated the question, question, and
and asked:
asked: "How
How long
long has
has the subject Property
the subject had an Property had an
accumulation of material as depicted depicted in
in Exhibit 2." Id. Passyn ultimately [d. Passyn ultimately did not suggest suggest that any
any
any point
of the material was flammable at any point during except to say that he observed during his testimony, except
fire at the Property at the Property in in June of 2020,
June of 2020, and referred referred to Exhibit 16,
to Exhibit 16, aacopy of the copy of the report
report of
of fire
fire alarm
from June 2020 where where the
the fire department
department entered Respondent's Respondent's Property. Id. at Property. [d, at 104-105.
104.105,
During direct direct examination of Passyn at examination of at the 2023 hearing, the August 9, 2023 hearing, Respondent objected Respondent objected
to to aaquestion question from counsel for Petitioner Petitioner which
which alerted
alerted the witness
witness to the date
date of the
the prior
prior hearing
hearing
in order to to ask him whether whether work
work on the Property had
the Property performed since that time.
had been performed time. Notes of
Testimony, August Testimony, 2023 ("N.T. 11")
August 9, 2023(N.T II") at 41. The Court did not at 41. not abuse its discretion in allowing in allowing
Petitioner Petitioner to to remind
remind the witness of the the time
time period relevant
relevant to
to his
his testimony
testimony by
by reference
reference to
to aa
court count date. The phrasing question allowed the witness to focus on the work performed phrasing of this question performed on
the the Property since the Property sine the last last hearing, and prevented hearing, and redundant and prevented redundant and cumulative cumulative testimony
testimony about any
about any
prior prior period.
period.
Respondent's objections are Respondent's objections are without merit, and without merit, and the Court did the Count did not
not abuse
abuse its discretion in
its discretion in
overruling them.
b. Questions beyond of cross-examination scope of
beyond the scope cross- examination
"The scope of redirect examination is largely Te largely within the discretion of the trial court.
Moreover, when aaparty party raises an issue on cross-examination, it will be no abuse of discretion for
the court court to permit re-direct on that issue in order to dispel dispel any
any unfair inferences." Com.y, Com. v.
Dreibelbis, Dreibelbis, 493 Pa.
Pa. 466, 479,
479, 426
426 A.2d
A.2d 1111,
1111, 1117
1117 ((1981)
198 1) citing
citing Com. v.
y. Stokes, 475
475 Pa.
Pa. 312,
380 A.2d A.24 370 370 ((1977)
1977).
On cross examination of Inspector Rybakowski, counsel for Respondent Inspector Rybakowski, Respondent asked the
witness witness whether whether he was aware that that Respondent
Respondent had put dumpsters had put dumpsters on the
the Property
Property and
and asked
asked
whether he knew if Respondent had thrown some of the material on the Property Property in
in the
dumpsters. N.T. dumpsters. N.T I at 66-68.
I at 66-68. On
On redirect
redirect examination, counsel for examination, counsel for Petitioner Petitioner asked the witness asked the to
witness to
look look at at Exhibit Exhibit 6-002, aapicture picture of the
the Property, and asked him him whether
whether he
he observed any
observed any
in the condition of the Property significant change in Property from that depicted in the picture.
picture. Counsel for
Respondent Respondent stated his his objection, reasoning
reasoning that the "question that the going beyond question is going beyond the scope of crossthe scope
examination. Those were questions that --I — Idid not address any
any of those,
those, and he's now trying trying to
engage in direct again." Id. at 80.
Though Respondent did not ask about Exhibit 6-002 on cross examination, examination, the witness
was asked about was asked about his his knowledge of Respondent's knowledge of efforts to Respondent's efforts remove debris to remove from the debris from the Property.
Property
Inspector Inspector Rybakowski's Rybakowski's testimony about any observable change about any change in condition of the the Property
Property
during the time in which Respondent used the dumpsters to remove debris, as suggested suggested on cross
examination, is examination, firmly within is firmly the proper within the scope of proper scope of redirect examination. Respondent's redirect examination. objection is Respondent's objection is
without merit, without and the merit, and Court did the Court did not abuse its not abuse its discretion
discretion in
in permitting the question.
permitting the question.
iv. iv, Respondent's objection to impermissible Respondent's objection lay testimony impermissible lay
Respondent argues Respondent argues that the Court abused its discretion in allowing "witnesses for
Petitioner, over the continuing objections of Respondent, to testify to matter matter [sic]
[sic] which they
qualified as an expert nor possessed were neither shown to be qualified possessed the requisite requisite knowledge,
knowledge, skills
and/or credentials, under under the
the Rules
Rules of Evidence,
Evidence, to render
render an opinion as to matters/issues
requiring specialized knowledge, requiring specialized skills, education and/or training such as the structural integrity knowledge, skills, integrity
of the Respondent's house and/or its components, the risk factors and proper assessment of the
accumulation and storage of various materials in in and on the Property viz-a-viz established fire,
safety issues generally
health and safety generally and under either the Philadelphia Philadelphia Housing
Housing Code or Section 55
of Act Aet 135. [sic"" Resp't's Rule 1925(b) Statement of Errors Complained of on Appeal at 135. [sic]" at ¶ 4(d).
Respondent appears to argue Respondent appears argue that that Petitioner
Petitioner was
was permitted
permitted to
to introduce impermissible impermissible lay
lay
testimony testimony through through Inspector Rybakowski and/or Passyn.
Passyn
"If If aawitness is not testifying as an expert, testimony testimony in the form of an opinion is limited
to to one that is ... not based on scientific, that is...not scientific, technical, technical, or other
other specialized knowledge."
knowledge." Pa.R.E.
Pa.R.E. 701
701
Inspector Rybakowski is aaconstruction compliance Inspector Rybakowski compliance supervisor supervisor assigned
assigned to the
Contractual Services Unit of the Department Licenses && Inspections Department of Licenses Inspections for emergency response, response,
aaunit "delegated "delegated the task of inspecting inspecting properties
properties that are either declared unsafe or imminently imminently
dangerous in the city..." dangerous city..." N.T. I I at 18. Inspector
Inspector Rybakowski
Rybakowski is qualified
qualified to testify
testify to the findings
findings
of the of the Department of Licenses Department of Licenses && Inspections as aacustodian Inspections as custodian of of its
its records,
records, and
and is qualified to
is qualified to
testify testify to his personal observations regarding regarding the structural integrity integrity of the properties properties that he has
inspected, inspected, as such observations are well within his expertise. At no point during the June 16, point during 16,
2023 evidentiary hearing did Respondent question Inspector Rybakowski's qualifications to
i assess the structural conditions of the properties properties he inspects as an employee of the City of
II Philadelphia.
Philadelphia
On cross examination of Passyn, Passyn, Respondent elicited that he worked twenty years in the '
construction trade. Counsel for Respondent Respondent challenged him to "describe in detail, then, the clear
and present danger that the roof of the structure presented." Id.
present danger Id. at 112.
112. Passyn testified to his
opinion opinion about the hazards created by by the Property.
Property. Respondent failed to object to to Passyn's lay
opinions about the structural integrity of the Property or the assessment of the danger of the opinions
accumulated materials on the Property. Id. at 112-114.
112.114, In fact, he affirmatively elicited them.
them
Respondent's objections are Respondent's objections are without merit.
merit
5. The Court did not unduly unduly restriet
restrict Respondent
Respondent from cross-examining Petitioner's witnesses or examining his own witnesses.
Respondent's 1925(b) Respondent's 1925(b) statement presents presents a general argument encompassing each and a general
every evidentiary ruling every adverse evidentiary ruling made over the course of multiple multiple hearings.
hearings. Resp't's Rule
1925(b) Statement of Errors Complained 1925(b) Complained of on Appeal Appeal at 13,
3, 4. Though Respondent fails to cite 4. Though
to any specific rulings that it believes were in error, Respondent's objections which were
overruled by by the Court will be grouped grouped as logically as possible.
similarly themed arguments Some similarly arguments proffered in Respondent's 1925(b) Statement can be
summarized to say;
say: "The Court abused its discretion in sustaining any of Petitioner's objections
during Respondent's during Respondent's cross-examination of any of Petitioner's witnesses, or during direct
any of Respondent's
examination of any Respondent's witnesses, and therefore based its finding that the Property
is blighted blighted and abandoned on aatainted evidentiary record." Counsel did not raise these
arguments during arguments during oral argument argument on Respondent's
Respondent's Motion for Post-Trial Relief, but did state
during the October 11, during 11th, 2023 hearing hearing that "he can't stress enough how how [Respondent]
[Respondent] has been
curtailed in curtailed in trying trying to address these
to address these issues... especially, by issues. .especially, by way of cross-examination way of cross-examination and and
challenging the testimony testimony that Petitioners Petitioners [sic]
[sic] have put
put forth in this matter." Notes of
Testimony, October 11, 2023 2023 ("N.T. at 38-39. Counsel for Respondent (N.T. III") at Respondent further stated that
was "at aaloss as to what questions he was questions [he] Id. at [he] can ask" on the direct examination of his client. [d.
66. 66
A evidentiary rulings A court's evidentiary rulings will will not
not be appeal unless be disturbed on appeal unless the court is is found to
to
have have abused its its discretion.
discretion. Tillery
Tillery v. Hos. pf Children's Hosp. • Children's of Philadelphia, Philadelphia, 156 1233, 1234 156 A.3d 1233, 1234
(2017). A A trial court abuses its discretion where it misapplies misapplies the law in such a a way
way that is
manifestly unreasonable or exercises its judgment judgment because of bias, bias, prejudice,
prejudice, ill will or partiality partiality
as shown as shown by by the evidence in the evidence the record.
in the record. Com.
Com v. Melvin, 103
y. Melvin, 103 A.3d
A.3d 1,
1, 35
35 (2014).
(2014).
i. Unavailable documents
The apparent thrust thrust of Respondent's
Respondent's argument is that the the Court refused
refused to
to sustain his
his
requests that Petitioner's witnesses produce produce certain documents that counsel for Respondent Respondent
alleged were intentionally alleged intentionally omitted from evidence.
A party seeking A party seeking production production from
from a
a person not aaparty
person not party to
to the action must
the action must comply
comply with
with
Pennsylvania Rule of Civil Procedure No. 4009.21. This Rule requires requires written notice to each
party of the intent serve aasubpoena at least twenty days before the date of service to allow for
objections which are themselves to be filed in writing.
writing. Pa.R.C.P. No.
No. 4009.21.
At the June 16, 2023 evidentiary hearing, during evidentiary hearing, during cross examination of Inspector Inspector
Rybakowski, Rybakowski, counsel for for Respondent asked whether he knew the the identities
identities of the
the persons
persons who
who
complained to complained the Department to the Department of Licenses && Inspections of Licenses about the Inspections about the Property, Property, then asked why
then asked why the
the
witness had produced no record of such in anticipation of trial. N.T. IIat 71-72. During During cross
examination of Passyn, Passyn, counsel for Respondent Respondent asked whether he brough the minutes of the
meeting authorizing church meeting authorizing the filing filing of the Petition. N.T. I I at 111. At the October 11, 2023
hearing, during hearing, during cross examination of Stephen Stephen Arrivello
Anivello ("Arrivello"),
("Arivello"), Executive
Executive Director of
of the
Commonwealth Preservation Alliance, Petitioner's proposed Conservator, counsel for
Respondent sought Respondent sought to ask the witness about the preliminary plan plan for remediation that was
proposed proposed to the Court at aaprevious hearing. When previous hearing. the Court sustained Petitioner's objection When the objection to
the question question "on the basis ... that it was already submitted basis...that submitted (at a a prior
prior hearing, without objection)
and and there was no problem problem with it," then asked counsel for Respondent to confine his cross
examination to examination to the the testimony that was
testimony that given on was given on direct during this direct during this hearing, hearing, he responded that he responded that he
he
"intend [s] to intend[s] to [cross examine] according [cross examine] according to the rules of court and the rules of court say that I may I may
very very well cross examine him in regard regard to any pertinent
pertinent issue in this case that he is aware of and
he's aware of the finances surrounding the Property Property— especially since he had to go out multiple
times, you you would would think go out and think that one could go and do an observation and come come back
back and do aa
preliminary report, preliminary report, but but he said he's
he said he's been
been out
out there
there several
several times, and I
times, and I find
find it disturbing, to
it disturbing, some
to some
extent, extent, Your Honor, Honor, that you
you seem to curtail respondent respondent always
always when it comes to digging digging into the
information that they --— Petitioner want[s] to to present.
present. When we want to dig into it, you can tell us
say, `no,'
and say, 'no,' you you can't do it.
it. My question is: `what My question 'what are they hiding?"' N.T. III at 31.
hiding?" N.T,
Counsel for Respondent Respondent did not question question Petitioner's witnesses about the actual
documents which documents which were were the
the subject of the
subject of the hearings in this hearings in this matter. He instead matter. He instead attempted attempted to make
to make
discovery requests discovery requests of Petitioner through its witnesses. The issue was best illustrated during the
Inspector Rybakowski,
cross examination of Inspector Rybakowski, where counsel for Respondent Respondent asked the witness to
provide Respondent provide Respondent "with with aacopy
copy of
of the
the calls
calls that
that [L & I] acted
[L &I] acted on
on in
in regard
regard to
to the violations"
the violations"
which could identify identify individuals who made complaints to the Department of Licenses Licenses &&
Inspections Inspections about the Property, Property, and all pictures during his January pictures that he took of the Property during January
inspection. 14 N.T. inspection.IM NT I 85-86. Counsel for Respondent I at 85-86. estimation, [the Respondent opined that "in my estimation, [the
witness] has purposely witness] purposely avoided bringing bringing pertinent
pertinent documents to this hearing." [d.
Id. at 85,
85.
Respondent alleges Respondent alleges that the Court abused its discretion it denying denying Respondent's
Respondent's "requests
for an for an order order directing directing Petitioner's
Petitioner's witnesses to provide witnesses to provide Respondent Respondent with
with aacopy
copy of
of the documents
the documents
in in their their possession possession they they were
were testifying
testifying to
to but
but which they conveniently did not not bring
bring to
to the
the
hearing, yet the Court allowed Petitioner's witnesses to testified [sic] hearing, yet [sic] as to the contents of those
hearsay documents." Resp't's hearsay documents." Resp't's Rule Rule 1925(b) Statement of 1925(b) Statement of Errors Errors Complained
Complained of
of on
on Appeal at "¶
Appeal at
4(f).
All of Respondent's All of Respondent's requests sound in requests sound discovery. A in discovery. A request
request that
that aacustodian
custodian from the
from the
Department Department of Licenses Licenses && Inspections
Inspections provide
provide copies of the complaints they have received about
aacertain property property are properly
properly directed to the City City of Philadelphia,
Philadelphia, properly filed in writing in
the form of aasubpoena, subpoena, and properly
properly noticed to Petitioner twenty twenty days before the filing.
Pa.R.C.P. Pa.R.CP. No. 4009.21 4009.21. A
A demand that the Court order aasubpoenaed, subpoenaed, unrepresented unrepresented witness to
retrieve documents which retrieve documents which are are not
not the subject of
the subject of aaformal
formal discovery
discovery request clearly delineating request clearly delineating the
boundaries of the request, request, while the Court breaks for lunch, bunch, is not supported by rules of evidence
or civil procedure, procedure, nor any any norm of judicial practice. The Court did not abuse its discretion in
declining to declining issue such to issue such an
an order.
order. see N.T.
N.T. I at 84
I at 84 ("[counsel
("[counsel for
for Respondent]:
Respondent]: Your Honor, I Your Honor, I
would ask for for aaruling
ruling from the Court
Count that
that [Inspector
[Inspector Rybakowski]
Rybakowski] take that
that time,
time, while we're on
lunch break, to provide provide Respondent
Respondent with aacopy
copy of the calls that they acted on in regard to the
violations since it's part part of the database as well as aacopy of the subpoena that he received to
attend this proceeding. ")
proceeding.")
Petitioner represented petitioner 14 represented that those pictures pictures were contained in in Exhibit 6, but counsel for Respondent claimed claimed "No,
they they are not. The pictures pictures that I
I made inquiry
inquiry of are the pictures pictures of the unsafe conditions that he took pictures of.
of. He
book ... The ones in the book said they're not in the book..The book [were]
[were] taken by a a contractor person." N.T. Iat86.
peron."NT.I 86. What Inspector Inspector Rybakowski Rybakowski actually
actually testified was that, because he did not compile Petitioner's evidence binder, that he did not know from memory which page numbers in Exhibit 66those pictures were on. on.Id Id. at 57-59.
57.59
Respondent Respondent also also requested
requested that
that the
the records of violation
records of violation notices assessed by notices assessed by the
the
Department Department of Licenses Licenses && Inspections
Inspections be stricken from the record because Inspector Inspector
Rybakowski "can't identify who made the calls that prompted Rybakowski prompted those inspections." N.T. IIat 88.
Though Respondent Respondent provided no no basis
basis for this request, the this request, the Court notes that that"[i]f
[if aa party
party
introduces introduces all or part pant of aawriting
writing or
or recorded statement, an adverse party recorded statement, party may may require
require the
the
introduction, at that time, of any other part... that in fairness part...that ought to be considered at the same faimess ought
time." Pa.R.E. 106. "The purpose purpose of Pa.R.E. 106 is to give give the adverse party opportunity to party an opportunity
correct aamisleading misleading impression that may may be
be created by
by the use
use of aapart
part of aawriting
writing or
or recorded
statement that may be taken out of context." Id.
Id. The absence of the identity identity of individuals who
complained to complained to the the Department of Licenses Department of Licenses && Inspections does not Inspections does tend to not tend to mislead the factfinder mislead the factfider
as to the conditions giving rise to the assessed violations, and the identities of the individuals are
plainly irrelevant to whether the conditions found by the inspectors actually existed. Further, it is
not clear from the record that Inspector Rybakowski ever acknowledged Inspector Rybakowski exist, acknowledged that such records exist,
which records belonging to the Department Department of Licenses
Licenses && Inspections,
Inspections, if any,
any, actually
actually would
contain the identities of complaining individuals, or whether those identities would, would, in
in the
normal course of business, be included in the records of the violation notices provided provided by
by the
Department of Licenses Department of Licenses && Inspections Inspections to
to Petitioner.
Petitioner.
Respondent's Respondent's remaining requests for information remaining requests information from from Petitioner's
Petitioner's witnesses were too
inchoate to form the basis of an order, let alone aadiscovery discovery request
request or motion to compel compel
discovery. The discovery. Court declines The Court declines to
to address
address them
them except to say
except to say that Respondent's failure that Respondent's failure to to develop
develop
his vague argument his vague about what argument about what "they are hiding"
"they are hiding" renders renders the
the Court
Court unable to demand
unable to demand that
that
Petitioner Petitioner produce the allegedly missing the allegedly missing documents, documents, unable
unable to
to meaningfully
meaningfully review
review its
its decision
not not to to issue such an issue such an order, order, and
and ultimately unable to
ultimately unable understand how to understand how Respondent Respondent wished
wished to make
to make
his case or how the Court's ruling doing so.
ruling restricted him from doing
\ I f
ii. ii. Questions beyond the scope of direct examination Questions
Cross-examination Cross-examination must
must be limited
limited to the
the subject
subject matter of the
matter of direct examination.
the direct examination. Pa.
Pa
R.E. 611(b). The R.E. 611(b). The scope scope of
of cross-examination
cross-examination is
is a
a matter
matter within the discretion within the of the discretion of the trial court.
trial court.
Com. v. Com v. Largaespada, Laraespada, 184 A.3d 1002, 1009 1009 (Pa.
(Pa. Super. 2018).
On cross On cross examination of Passyn examination of during the Passyn during June 16, the June 2023 hearing, counsel 16, 2023 counsel for for
Respondent Respondent asked, asked, given
given how
how often he
he seems to
to spend observing Respondent on his Property, spend observing Property,
when he finds "time to to perform
perform [his]
[his] duties at
at the N.T. I
the church." N.T I at 116.
116. The Court sustained
Petitioner's objection to Petitioner's objection to this question as irrelevant and this question and beyond scope of direct examination.
beyond the scope
Passyn Passyn was not asked on direct examination about his time management, or his duties at the
church. He church. stated merely He stated merely how often he how often he was
was at
at the church. N.T.
the church. N.T. I
I at 98. The
at 98. The manner
manner in which
which he
he
spends his spends time at his time at the church is the church is not
not relevant to his
relevant to credibility as his credibility as aawitness.
witness.'15
On cross examination
examination of
of Passyn,
Passyn, counsel for
for Respondent
Respondent asked "how
"how many
many times
times were
were
you directly involved you directly involved in asking [Respondent]
in asking about selling [Respondent] about selling the the Property ... to the
Property...to church." [d.
the church." Id. at
at
117. I17. Passyn Passyn was not not asked on direct examination about any any efforts the church made made to
to acquire
acquire
the Property.
Property. Counsel for Respondent "[t]hat's what I'm trying Respondent stated: "[t]hat's elicit. He talked about trying to elicit.
[how] he [how] he had had many conversations with many conversations with --
— that's
that's why
why I'm bringing it
I'm bringing it up,
up, because
because it's
it's pertinent."
pertinent."
Id. [d. The Court responded responded that
that because
because the subject did not the subject not come
come up
up on direct, it
it was
was beyond
beyond the
the
scope of cross. Counsel for scope for Respondent Respondent responded
responded that "[i]t doesn't have that "[ijt have to to come up
up on direct.
On cross examination, examination, I
I can ask
ask about
about anything."
anything." Id. Though it
Id. Though it is
is relevant to Respondent's Respondent's
theory theory that that the
the Petition
Petition was
was filed in
in order to
to pressure
pressure Respondent
Respondent into selling the into selling the Property Property to
to
is Respondent prevented by gesondent was prevented by the Court from exploration of the amount of time from further exploration tire Passyn spends at Passyn spends at the
the
church during the August 9, 2023 hearing because Passyn Fassyn had already testified that he spends three to four days per week at the church. N.T. II church.N,T, at45
II At 45.
- ----------------
Petitioner Petitioner (Resp't's (Resp't's Answer,
Answer, New Matter and Countercl. to Pet'r's Act Aet 135 Pet. for Appointment I Conservatory at of aaConservatory at ¶ 110, 115), 115), the Court properly did not, despite Respondent's interpretation
of the Rules of Evidence, allow Respondent Respondent to explore
explore this topic during the cross examination of
witness who was never aawitness never asked asked about attempts to
to purchase the Property.
6. The Court's scheduling of status hearings subsequent to the evidentiary hearing in this matter does not violate the Pennsylvania Pennsylvania Rules of Evidence, Pennsylvania Constitution, or United States Constitution.
The Court is unable to discern the basis for Respondent's argument. Respondent did not
raise this or any other similarly spirited spirited argument during oral argument on Respondent's Motion
for Post-Trial Relief or during during any
any of the hearings which are the subject of this appeal.
The Court's determination that the Property Property was blighted and abandoned was made
immediately immediately after the evidentiary evidentiary hearing
hearing in this matter. The Court's Order dated June 16, 2023
stated that:
that.
2. Petitioner established that the Property Property is abandoned and blighted blighted as defined under 68 P.S. P.S. §$1105,
1105, and
and that the
the conditions of the Property Property are such that a
a Conservator may be
appointed appointed pursuant
pursuant to 68 P.S. §$ 1105()(14)
1105(d)(1-4)
3. As of the date the Petition was filed on November 30, 2022, the Court finds Petitioner established the following following pursuant
pursuant to 68 P.S. §$ 1105(d)(5):
1105()¥5):
(i.) (i.) The building
building or physical
physical structure is
is aapublic
public nuisance.
nuisance.
(ii.) (ii.) The building
building is in need of substantial rehabilitation and no rehabilitation has taken is in
place place during
during the previous
previous 12 months.
months
(v.) (v.) The condition of the property increases the risk of fire. (vii.) The presence (vii.) presence of vermin or the accumulation of debris, uncut vegetation or physical physical deterioration of the structure or grounds has created potential health and safety hazards and the owner has failed to take reasonable and necessary measures safety to to remove
remove the
the hazards. 16
hazards.'°
% See June 16, 2023 Court Order. 16See June 16,2023 Court Order
Subsequent hearings Subsequent hearings which Respondent Respondent argues
argues violate the United States Constitution
were held to afford Respondent Respondent an opportunity opportunity to undertake Conditional Relief and establish the
qualifications qualifications of Petitioner's proposed proposed Conservator, should Respondent Respondent fail to establish his
capacity capacity to to undertake undertake Conditional Relief. The The matter
matter of whether the Property Property was
was abandoned
abandoned and
blighted blighted was 16, 2023 evidentiary was settled at June 16,2023 evidentiary hearing.
hearing. In
In fact,
fact, the
the Court instructed
Respondent that evidence regarding Respondent regarding whether the Property Property was abandoned and blighted blighted was
the permissible beyond the scope of permissible scope of the
the status
status hearing conducted on October hearing conducted October 11, 2023, to 11,2023, to which
which
counsel for Respondent Respondent stated
stated that
that"I'm
I'm trying
trying to
to determine
determine what the
the scope
scope of this is
is so that
that I
I
might might be able to comply comply with presenting
presenting evidence on
on [Respondent's] behalf" and [Respondent's] behalf and that he is "at "at aa
loss loss as to questions I to what questions I can can ask
ask him,"
him," while
while also alleging
alleging that
that Petitioner "want[s] to curtail Petitioner "want[s]
any and everything any everything that Respondent is is seeking to do to respond respond reasonably to their embellished
allegations..." N.T. allegations.." NT, III at 65-66.
The status hearings
hearings scheduled
scheduled subsequent
subsequent to
to the
the June 16, 2023 hearing hearing were
were not for
rehashing arguments about whether the rehashing arguments the Property Property was abandoned and blighted.
blighted."17 Instead,
Instead, the
the
hearings afforded Respondent hearings afforded Respondent the opportunity to the opportunity to remediate remediate the
the Property
Property himself by undertaking himself by undertaking
Conditional Relief. Conditional Relief. The Court directed The Court directed Respondent to produce Respondent to documentation of produce documentation of property property
insurance, aascope of work to be completed to remediate the Property, Property, aasigned
signed contract with aa
licensed and insured Philadelphia Philadelphia contractor to perform the work and obtain necessary necessary permits, aa
written written plan plan for for remediation,
remediation, an engineering report an engineering as requested report as and required requested and required by by the City of
the City of
Philadelphia, Philadelphia, and proof Respondent's financial capacity proof of Respondent's capacity to complete complete the remediation.
remediation.""
18 At the
August August 9, 2023 hearing, 9,2023 hearing, Respondent Respondent produced only documentation of property produced only insurance, property insurance,
documentation that he acquired acquired another dumpster, and an engagement engagement letter with aacontractor, contractor,
See June see 17 June 16,2023 16, 2023 Count
Court Order
Order.
M see 18 See June 16, 2023 Count 16,2023 Court Order.
Management. see N.T.
S&F Management. NT. II The contractor was not listed as aacontractor licensed II Te in licensed in
Philadelphia City of Philadelphia's Philadelphia in the City System and Philadelphia's Atlas System and the engagement letter the engagement letter did not not
describe the scope scope of work required
required to comply
comply with the unsafe structure violation.
violation. see [d.
Id.
Respondent was Respondent afforded another was afforded another opportunity opportunity to
to present
present the
the required documents at required documents at the the October
October
11, 2023 hearing, 11,2023 hearing, including any available including any available documentation that S&F Management was was licensed
licensed in
in
Philadelphia. Philadelphia." Id. at 26-27; Resp's'
19 [d. Resp's' Ex. 3. However, rather than provide provide the required
required documents,
Respondent presented Respondent presented ground ground level pictures of the Property taken from neighboring properties
where no debris was visible in an effort to depict that Property, including the roof declared
unsafe by by the Department Department of Licenses
Licenses && Inspections, remediated. 20 The Court once again Inspections, was remediated.2
requested requested the documentation required required to substantiate Respondent's request for Conditional
suggesting that merely supplying Relief, even suggesting supplying photographs of the exterior of the Property from
Property itself, rather than within the Property than from from the other side of the the fence,
fence, could be
be persuasive
persuasive in
in
Respondent's Respondent's request request for Conditional Relief.
Relief. N.T. 72-76. However, the Court cautioned N.T III at 72-76.
that if Respondent Respondent failed to submit any any documentation or photographs photographs within ten days, a
a
Conservator could be appointed. 21 Having received no correspondence from Respondent by appointed.?'
appointed Petitioner's proposed Conservator, Commonwealth October 30, 2023, the Court appointed
Preservation Alliance, Preservation as Conservator.
Alliance, as Conservator. 22
7. The Court did not fail to consider Respondent's 7, Respondent's Answer, New Matter and Counterclaim. Counterclaim.
Respondent argues that the Court Respondent argues Court "failed and/or refused, upon completion of the June 16, upon completion
see 19 See August August 9, 2023 Count 9,2023 Court Order.
Order
0 See October 11,2023 20 11, 2023 Cunt Court Order
Order.
See October 11,2023 21See 11, 2023 Court Count Order.
See October 30,2023 see 22 30, 2023 Count Court Order.
2023 evidentiary evidentiary hearing, hearing, to take into consideration Respondent's Respondent's incorporation incorporation of his Answer,
New Matter and Counterclaim, which which had
had already
already been
been marked
marked as Respondent's Exhibits [sic]
Respondent's Exhibits [sic]
during the hearing, during hearing, from being being made aapart
part of the June 16, 2023 evidentiary evidentiary hearing
hearing record, yet
yet
allowed and allowed and admitted admitted any
any and
and all
all evidentiary
evidentiary matters
matters proffered
proffered by Petitioner, regardless by Petitioner, of their regardless of their
lack of admissibility admissibility status..." Resp'It's Resp't's Rule 1925(b)
1925(b) Statement of Errors Complained Complained of on
Appeal Appeal at ¶ 4(g).
at 4(g)-
As an initial matter, the admissibility admissibility of Petitioner's exhibits has no bearing bearing on whether
Respondent's Respondent's exhibits should should be
be admitted into
into the
the record.
record. Even
Even were
were it true that
that the Court
admitted all all of of Petitioner's
Petitioner's exhibits regardless admissibility while refusing regardless of their admissibility refusing to admit
Respondent's Respondent's Answer, New Matter and Counterclaim into evidence, this evidentiary evidentiary decision
would have no bearing bearing on Respondent's
Respondent's "equal protection rights "equal protection rights under the Pennsylvania Pennsylvania and
U.S. Constitutions," as alleged by Respondent. Id.
[d.
The Court Court notes
notes that
that"Pleadings
Pleadings listed in § 5.1 (relating in $5.1 (relating to pleadings allowed)
to pleadings allowed) shall,
without without further further action, action, be
be considered as part
part of the record
record as pleadings." 52
as pleadings." 52 Pa. Code §$ 5.405.
Pa. Code As
5,405. AS
the Court noted, the Court noted, "... the pleadings "...the pleadings are
are the pleadings. Once
the pleadings. Once they're submitted, they they're submitted, are certainly they are certainly
part pant of our file, file, part
part of the official file," but that ordinarily ordinarily "[i]n
"[iJn terms of exhibits and what
supports today's today's hearing ... the pleadings hearing...the not [be pleadings would not [be formally admitted as evidence]." N.T.
N.T, IIat
142. Counsel for Respondent stated that he was not asking asking "[the
[the Court] to admit specific
exhibits. I'm just asking you to mark the fact and make a exhibits. apart part of the record the fact
that... Respondent submitted aawitness and exhibit list." that...Respondent list." Id.
Id. When
When Petitioner objected to Petitioner objected to the the
admission of admission Respondent's exhibits, of Respondent's exhibits, as as none
none had
had been referenced during been referenced during Respondent's case, and Respondent's case, and
during the hearing,
none had been made available to Petitioner or the Court before or during hearing, counsel for
Respondent Respondent stated that he is "not moving moving for the admission of any exhibits," but was instead
asking the asking the Court Court "to
"to include the Respondent's include the Respondent's Answer in New Answer in Matter [sic]
New Matter in the
[sic] in official record the official record
now," now," even though though he had not yet
yet uploaded
uploaded that or any other document'
document 23 to the e-filing system system.
Id. at 143-145. Id. 143-145. The Court stated: "The record will reflect that the Respondent requested the
inclusion inclusion of documents and information --— documents and material material that
that had not
not been
been made
made
available to the Court Court or to
to the
the Petitioner
Petitioner prior
prior to
to [counsel
[counsel for Respondent's]
Respondent's] appearance in court
today today but that he represents represents will be uploaded uploaded and presented
presented to the Count."
Court." Id. at 145-146.
145-146
Given this record, Respondent's argument record, the basis for Respondent's argument is unclear.
unclear. Respondent's pleading
appropriately entered as an exhibit, is not appropriately exhibit, as it merely merely contains self-serving self-serving declarations about about
Petitioner's motivations in filing filing the Petition, and denials of facts averred in the Petition. see
Pennsylvania Lab. Rels. Pennsylvania Lab. Bd. v. Hall's Rels. Bd,v, Hall's Furniture Furniture Store,
Store, 78
78 Pa. D. & C.
D. & C. 241, 246
246 (Com.
(Com. Pl.
PI 1952)
("One party ("One party cannot employ his own pleadings as evidence in his own behalf. They are the
example of self clearest example self-serving declarations. "). Insofar as Respondent claims that the Court -serving declarations.").
failed to consider his responsive pleading in this matter, the Court notes that Respondent admits responsive pleading
having failed to upload to having upload it it prior evidentiary hearing.
prior to the evidentiary hearing. N.T. I I at 145.
145, Finally, the Court
notes notes that point did that at no point did the the Court refuse
refuse to permit Respondent's to permit Respondent's pleading pleading from
from inclusion
inclusion in
in the
the
record. record. Respondent's Respondent's argument argument is
is without merit.
merit
8. Respondent 8, Respondent was was not judgment in not entitled to judgment in its favor favor as
as aamatter of law
law on the issue
of whether whether the
the Petition for Conservatorship should be granted for Conservatorship by virtue of granted by
Petitioner's failure to file a a written response
response to Respondent's
Respondent's Answer, New Matter and Counterclaim with a a Notice to Plead.
Respondent argues Respondent argues in in his 1925(b)
1925(b) statement that, pursuant to that, pursuant to Pa.R.C.P.
Pa.R.C.P. 1019(b), the
the
averments in in Respondent's
Respondent's Answer,
Answer, New and Counterclaim New Matter and Counterclaim are "rendered admitted" by by
Petitioner's Petitioner's failure failure to
to file aawritten
written response
response to
to same, and that,
that, therefore,
therefore, Respondent
Respondent was
was
entitled to judgment judgment in his favor.
zs TheThe only documents that Respondent Respondent sought to make part part of the record of the hearing were counsel's entry of appearance, appearance,aawitness and exhibit list, and Respondent's Answer to the petition.NT,I petition. N.T. Iat 144.
144,
Pa.R.C.P. Pa.R.C.P 1019(b)
1019(b) states that "Averments of fraud or mistake that Averments mistake shall be averred averred with
particularity. Malice, particularity. intent, knowledge Malice, intent, knowledge and other other conditions
conditions of
of mind
mind may be averred
may be averred generally."
generally."
Pa.R.C.P. No.
N. 1019. This rule defines the adequacy adequacy of the content of allegations.
allegations. It does not
proffer any mechanism proffer any by which mechanism by any averment which any averment may
may be deemed
deemed "admitted."
"admitted."
Though this Though this Court is not Court is not required
required to speculate as
to speculate as to what Respondent to what may be Respondent may arguing, it be arguing, it
suggests some analysis suggests analysis of of this
this issue.
issue. In
In his
his Answer,
Answer, New
New Matter and Respondent and Counterclaim, Respondent
avers that avers that he he continuously occupied the continuously occupied the subject subject Property
Property and,
and, essentially,
essentially, that
that Petitioner knew
Petitioner knew
that Respondent Respondent lived there and intentionally intentionally misrepresented misrepresented this fact in its Petition for
Conservatorship. Resp't's Conservatorship. Resp't's Answer, Answer, New
New Matter
Matter and Countercl. to
and Countercl. to Pet'r's Pet'r's Act
Aet 135 Pet.
Pet. for
for
Appointment Appointment of aaConservatory at ¶ 110, 115.
Conservatory at 115. Respondent's Respondent's Counterclaim asserts that Petitioner
filed the Petition to harm Respondent Respondent in retaliation for Respondent's Respondent's refusal to sell the Property Property
to Petitioner, and that the purpose purpose of the Petition is is not to remediate blight, blight, but to exert financial
pressure on pressure on Respondent to sell Respondent to sell the
the Property. Id. at
Property. [d. at "¶ 122-126.
122-126. These accusations are These accusations are couched couched
within averents within averments of of Respondent's own beliefs, Respondent's own and general beliefs, and averments as general averments as to
to Petitioner's
Petitioner's
knowledge. Id. knowledge. Id. Finally, Finally, Respondent
Respondent alleges
alleges that Petitioner
Petitioner "collaborated" with with the City of
the City
Philadelphia Department Philadelphia of Licenses Department of Licenses and and Inspections
Inspections to strengthen the to strengthen the Petition.
Petition. Id.
Id
In his Answer, Respondent Respondent claims that the Petition is is fraudulent, and was filed for the
purpose of purpose of pressuring Respondent, through pressuring Respondent, legal or through legal or financial financial means,
means, to sell the
to sell the Property. Though Property. Though
Respondent Respondent is unspecific unspecific about which tort Petitioner is committing committing or which statute Petitioner is
violating, violating, Respondent appears to Respondent appears argue in to argue in his
his 1925(b)
1925() Statement
Statement that
that his New Matter
his New Matter and
Counterclaim are Counterclaim are sufficiently pled under sufficiently pled under Pa.R.C.P.
Pa.R.C.P 1019(b),
1019(b), and
and that, therefore, Petitioner's that, therefore, Petitioner's
failure failure to file aawritten Answer to Respondent's they are Respondent's New Matter and Counterclaim mean they
deemed admitted deemed admitted under under Pa.R.C.P.
Pa.R.C.P 1029(b) ("Averments in 1029()("Averments in aapleading pleading to
to which
which aaresponsive
responsive
pleading pleading is is required required are
are admitted
admitted when
when not
not denied specifically or denied specifically or by by necessary implication. A necessary implication. A
general general denial or aademand for proof, except for proof, except as provided subdivisions (c)
provided by subdivisions (c) and and (e)
(e) of this
this rule,
shall have the effect of an admission." Pa.R.C.P.
Pa.R.C.P No. 1029.) Respondent apparently argues that
no Conservator can be appointed appointed where Petitioner avers that Respondent Respondent did reside in the
Property, Propenty, and that Respondent Respondent has separate legal recourse against Petitioner where Petitioner
avers that avers that it filed filed the
the Petition even though
Petition even though it
it knew
knew that
that Respondent resided in Respondent resided in the the Property,
Property,
contrary to the averments in the Petition. contrary
Averments are admitted by by a
a failure
failure to deny when
to deny when the
the averments appear "in aapleading averments appear pleading to to
which a responsive pleading a responsive pleading is is required." Id. "[N
required." [d. Jo responsive "[N]o responsive pleading pleading is
is required
required to
to an
allegation which is [n]ot allegation [n]ot an averment of fact." Kappe Assocs., Inc.
Kappe A$Socs. Inc.Yv. Aetna Cas, Cas. && Su.Co.,
Sur. Co., 234
Pa. Super.
Super. 627, 631, 341 A.2d 516, 518 518 ((1975)."This
1975). "This means that if aaparty's new matter does not
supporting an affirmative defense, but rather contains merely contain facts supporting merely conclusions of law,
no denial is required required because such averments are deemed to be denied." Foust v. Pennsylvania Foust_vPennsylvania
Dep't of Hum. Servs., 305 A.3d 1128, 1136 Hum Sers., 1136 (Pa.
(Pa. Commw. Ct. 2023)
2023) "Whether an allegation allegation is of
fact or law is determined by the the context disclosing the circumstances and purpose purpose of the
allegation." Srednick allegation." Srednick v. Sylak, 343 v, Slak, 343 Pa.
Pa. 486, 492-493, 23
486, 492-493, 23 A.2d 333, 337 A.2d 333, 337 (1941).
(1941)
In Watson Watson,v. Green,
Qreen, the trial court's ruling ruling that facts plead in defendant's answer with
new matter were deemed admitted by by the plaintiff's
plaintiffs failure to file aawritten response was
overruled. Watson v. Green, 231 Watson_y. 231 Pa. Super. 115, Pa. Super. 115, 118, A.2d 790 118, 331 A.24 790 ((1974).
1974). On appeal, the
the
Plaintiffs alleged alleged that no responsive responsive pleading
pleading was required
required because
because "the new matter merely merely
denied some of the allegations allegations in the complaint and and also stated conclusions of law which
required responsive pleading." required no responsive pleading." Id. at 791. The The court
court agreed, holding that that "defendant's
allegations allegations in his new matter were either conclusions of law or merely merely reiterated that which had
already been placed already placed into issue in the Complaint Complaint and Answer.
Answer. To require
require the plaintiff
plaintiff to file aa
reply to such allegations purpose.. " Id.
allegations would serve no useful purpose..."
Here, Here, Respondent's Respondent's New
New Matter
Matter and Counterclaim asserts merely merely that,
that, contrary to
to facts
facts
averred in in the Petition, Petition, Respondent
Respondent did reside continuously in in the
the Property.
Property. Rather
Rather than
than treat
treat
these averments as facts requiring response, the Court properly requiring response, properly declined to deem these averments
admitted. The issue issue of whether Respondent Respondent resided
resided in
in the
the Property
Property was subject of the was an explicit subject the
Petition, and Petitioner's failure to re-allege re-allege its belief that Respondent Respondent in
in fact did not reside in in the
Property should not bear on the merits of the Petition. The remaining averments contained in Property
Respondent's Respondent's New Matter reiterate various legal standards for finding finding conditions for
conservatorship under 68 conservators.hip P.S. $§ 1105, and are conclusions of law to which no response is 68P.S.
required.
Respondent's Respondent's Counterclaim makes few averments other than that Respondent Respondent did legally
legally
occupy the Property, occupy Property, petitioner petitioner knew that he legally legally occupied the Property, Property, and that Petitioner
misrepresented misrepresented its knowledge knowledge of whether Respondent occupied the Property.
Property. To the extent that
these can be considered averments of fact, they already placed they are already placed into issue by by the Petition and
Answer. Answer
The remaining remaining averments are that Respondent Respondent was forced to secure the services of an
attorney, and the averent attomey, averment that Respondent Respondent "believes and avers that as aaresult of of [said
[said refusal to
engage ... in discussions about selling the subject Property engage...in Property to Petitioner,]
Petitioner,] Petitioner began aa
course of making complaints... .and making complaints. and collaborated with the City of Philadelphia Philadelphia Department
Department of
Licensing && Inspection Licensing Inspection [sic]
[sic] representatives..." to force Respondent Respondent to have to sell the Property.
Resp't's Resp't's Answer, New Matter and Countercl.
Countercl. to Pet'r's Act Aet 135 Pet.
Pet. for Appointment of aa
Conservatory at ¶ 123, 125, 126. Conservatory at 126. Where Respondent's Respondent's belief
belief is
is averred, deeming it
averred, deeming it to be be
admitted would have bearing on the have no bearing the outcome of the the Petition, as Respondent's Respondent's belief
belief about
Petitioner's Petitioner's motives in in this
this action is not
not probative
probative of the conditions of the the Property
Property at
at the
the time
time of
filing. filing. Where Where Respondent Respondent avers that Petitioner Petitioner has colluded with the the Department
Department of Licenses
Licenses &&
Inspections Inspections to create a to create a fraudulent
fraudulent record
record of violations which of violations support the which support the Petition, Petition, Respondent
Respondent
states aaconclusion states conclusion of of law to which
law to which no
no response
response is
is required.
required.
Even if the Even if averments made the averments made in Respondent's Respondent's Answer,
Answer, New Matter and Counterclaim Matter and Counterclaim
were considered to be averments of fact, Respondent's argument is Respondent's argument 135 is without merit. Act 15
Petitions are governed governed by
by the rules of petition practice. PA R petition practice. R PHILADELPHIA CTY RCP Rule
206. 1 (a)(1)(vii). Pa.R.C.P. 206.1(a)1(vii). states that Pa.R.C.P states "[i]f an that "[if an answer
answer is not filed,
is not all averments filed, all averments of fact in the of fact the
petition petition may be deemed may be deemed admitted."
admitted." Pa.R.C.P.
Pa.R.C.P. No.
No. 206.7,
206.7. The Court,
Court, therefore,
therefore, has
has discretion
discretion
over whether whether facts facts averred in pleadings should be in pleadings be deemed admitted by a a Petitioner's
Petitioner's failure to
to
respond. respond.
The exercise The exercise of of sound discretion militates sound discretion against deeming militates against any facts deeming any facts averred averred in pleadings
pleadings
through through the course of the course of Act 135 petitions Aet 135 petitions to be deemed to be deemed admitted
admitted by
by aafailure
failure to
to respond.
respond. General
General
Court Regulation Count Regulation No. 2022-01 goveming governing Aet
Act 135 petitions
petitions does not require require responsive pleadings responsive pleadings
from Respondents, from Respondents, stating instead that stating instead that "[t]he [t[he Respondent may file Respondent may file aaverified Answer to verified Answer to the
the
Petition" and "[a]n Petition" and answer may "[a]n answer may contain
contain aaNew Matter." General Ct. Regulation Matter." General Regulation No.
No. 2022-01
2022-01 (7).
(7).
Since Respondents Since Respondents are not required to to file responsive pleadings file responsive pleadings to to petitions,
petitions, it
it is
is deeply
inappropriate inappropriate for aacourt to deem aafailure to to file
file aawritten response to to be
be an admission
admission of the
the
facts averred in facts averred in an an affirmative
affirmative pleading.
pleading. In
In this
this matter, itit is likewise inappropriate inappropriate to
to deem
deem the
the
facts facts averred in Respondent's Answer, in Respondent's Answer, New Matter and Counterclaim to be be admitted where
where
Respondent's Respondent's New Matter Matter merely asserts facts merely asserts facts which which contradict
contradict the
the facts asserted in
facts asserted in the
the Petition,
Petition,
Respondent's Respondent's counterclaim avers Respondent's Respondent's own beliefs, beliefs, the
the facts
facts asserted
asserted in Respondent's
Respondent's
New Matter and Counterclaim are irrelevant to the material conditions of the Property, Property, and
Respondent's Respondent's Answer, New Matter and Counterclaim were filed after the evidentiary hearing evidentiary hearing
which which determined the the facts
facts in
in issue. N.T.
NT I I at
at 145.
145,
III. Ill CONCLUSION
For the reasons stated above, above, the Court requests requests this Honorable Court affirm its Orders
July 16, August of July August 9, 9, October
October 11,
II, and October 30, 2023, 2023, finding
finding that
that the Property
Property was
blighted under Act
abandoned and blighted Aet 135 and appointing appointing Petitioner's Proposed Conservator as
Conservator of the the Property. respectfully requests Property. The Court respectfully requests that this Honorable Honorable Court
Court remand
this case for further proceedings.
proceedings.
COURT:
BY THE COURT
..Watt.A ANN M. BUTCHART, J.
St. Vladimir Ukrainian v. Saunders, S. (St. Vladimir Ukrainian v. Saunders, S.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.