IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Shenandoah :

:

v. :

:

Carlos Matilde Cruz

, : No. 715 C.D. 201 6

Appellan t : Submitted : December 12

, 2016

BEFORE: HONORABLE ROBERT SIMPSON

, Judge

HONORABLE JOSEPH M. COSGROVE

, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE COSGROVE FILED: May 2 2

, 2017

Carlos M. Cruz (Appellant) appeals from an order of the Court of

Common Pleas of Schuylkill County (trial court) which granted a permanent

injunction to the Borough of Shenandoah (Borough) on March 4, 2016. Upon

review, we affirm

.

Appellant is the owner of real property located in the Borou gh at West

Coal and Race Streets (Race Street p roperty)

. The Race Street property consists of

three contiguous row homes attached to the rear of a three

- story building. The

Race Street property was initially purchased by Appellant’s brother and sister

- in

law in September 2012 by means of a tax sale. In July 2014, the structural

integrity o f the buildings failed and the walls and roof of the buildings collapsed.

This resulted in a sewer line break on the premises, which caused sewage to collect

in the basement. The Borough initiated an enforcement action against Appellant’s

brother and sister

- in

- law for maintaining a dangerous building in violation of a2

Borough ordinance

. Following hearings before the magisterial district judge,

Appellant’s brother an d sister

- in

- law were found guilty of the ordinance violations

in April 2015. They did not appeal these findings.

Shortly thereafter, on May 21, 2015, Appellant took ownership of the

Race Street property by means of a quit claim deed for consideration of one dollar.

The Borough sent a notice to Appellant that, prior to t ransfer of ownership, a

signed and notarized statement was required confirming Appellant had received

notice of the ordinance violations and that he acknowledged full responsibility for

th os e violations.

On December 11, 2015, t he Borough initiated an action in equity

pursuant to the Neighborhood Blight Rec lamation and Revitalization Act 1 (Act)

and Section 1202 of the Borough Code. 2 A Petition for Preliminary Injunction was

filed by the Borough on December 21, 2015

. F ollowing a hearing, the preliminary

injunction was granted by the trial court on February 9, 2016. A second hearing

was held on March 4, 2016, and the trial court entered an order making permanent

the preliminary injunc tion and directing the demolition of the structures on the

Race Street property

. Appellant filed with the trial court a Petition for

Stay/Supersedeas of the permanent injunction. The Supersedeas was granted

,

conditioned upon Appellant posting a bond in t he amount of $75,000.00.

Appellant failed to post any such bond

. This appeal followed. 3

, 4

1 53 Pa.C.S. §§ 6101

- 6145.

2 8 Pa.C.S. §§ 1 202

.

3 Whe n reviewing a grant of a permanent injunction which turns on whether the lower

court properly found the party seeking the injunction established a clear right to relief as a matter

of law, the standard of review for a question of law is de novo and the scope of review is plenary.3 DISCUSSION

As set forth in Appellant’s brief, the following issues are raised with

this Court :

(1) Whether the trial court erred as a matter of law in finding

that the Appellee established it’s [sic] clear right to relief

by clear and convincing evidence where it failed to prove

basic statutory elements of it’s [sic] case.

(2) Whether the trial court erred as a matter of law by ordering

the immediate demolition of the pr operty in question and

not providing Appellant with reasonable time to make

repairs or make the property otherwise conform to law at

his own expense.

(3) Whether the demolition of the property in question is an

over broad remedy where a more appropriate remey [sic]

could be devised.

(Appellant’s Brief at 5.)

First, Appellant argues the trial court erred in finding the Borough

established its clear right to relief. (Appellant’s Brief at 14.) Appellant contends

the record fails to demonstrate he is the owne r of the property in question

, and fails

Penn Square General Corporation v. County of Lancaster, 936 A.2d 158, 167 n.7 (Pa. Cmwlth.

2007)

.

4 It is not clear from the record in this case whether Appellant filed post

- trial motions, as

required by Pa.R.C.P. No. 227.1. The Borough has not raised the lack of post

- trial motions in its

brief. Pursuant to Rule 227.1

, a party must file post

- trial motions at the conclusion of a trial in

any type of action in order to preserve claims the party wishes to raise on appeal. Even where

neither party has raised a failure to preserve issues for review by not filing post

- trial motions

pursuant to Pa.R.C.P. No. 227.1, that failure does not prevent this Court from doing so sua

sponte. Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). Given the

lack of clarity in the record here, we decline to raise the issue sua sponte and will address the

merits of Appellant’s arguments.4

to show he was served with a n order to abate the nuisance and provided the

requisite six months in which to c orrect any violation. Id. at 1 5

- 16

.

Section 6111(1)(i) of the Act provides a municipality may institute an

action for a “continuing violation for which the owner takes no substantial step to

correct within six months following receipt of an order to correct the violation,

unless the order is subject to a pending appeal before the administrative agency or

court.” 53 Pa.C.S. § 6111(1)(i). An injunction is an extraordinary remedy that

should be used with caution and only where the rights and equity of the petitioner

are clear and free from dou bt and the harm to be remedied is great and irreparable.

Woodward Township v. Zerbe

, 6 A.3d 651, 658 (Pa. Cmwlth. 2010). The required

elements of injunctive relief are: a clear right to relief; an urgent necessity to avoid

an injury that cannot be compe nsated in damages; and a finding that greater injury

will result from refusing, rather than granting, the relief requested. Big Bass Lake

Community Association v. Warren

, 950 A.2d 1137, 1144 (Pa. Cmwlth. 2008).

Even where the essential prerequisites of a n injunction are satisfied, the court must

narrowly tailor the remedy to abate the injury. Id. at 1144

- 1145.

A n injunction which commands the perfor mance of an affirmative act,

a mandatory injunction, is the rarest form of injunctive relief and is oft en described

as an extreme remedy. Woodward Township, 6 A.3d at 658. The case for a

mandatory injunction must be made by a very strong showing, one stronger than

that required for a restraining

- type injunction. Big Bass Lake, 950 A.2d at 1145.

The powe r to grant or refuse an injunction rests within the sound discretion of the

court under the circumstances and the facts of the particular case. Id.

As to Appellant’s suggestion the record from the trial court fails to

demonstrate he is the owner of the Race Street property

, the Borough filed its5

complaint against Appellant on December 11, 2015. ( Reproduced Record ( R.R. ) at

2a.) Paragraph 4 of that complaint avers that at all times material to th e cause of

action, Appell ant was and still is the owne r of real property located at West Coal

and Race Streets, Shenandoah, Schuylkill County, Pennsylvania 17976

. Id.

Attached to th e complaint as Exhibit “A” was the quitclaim deed conveying the

Race Street property to Appellant. ( R.R. at 11a.) To date, Ap pellant has failed to

file a responsive pleading to this complaint. As such, the allegations of ownership

were deemed admitted by operation of Pa.R.C.P. No. 1029(b). 5

Because Appellant cannot legitimately argue he is not the owner of

the Race Street property

, we turn to the issue of whether the Borough complied

with the procedural requirements of Section 6111(1)(i) of the Act.

The Borough’s complaint contains several averments

, including the

following :

1. Appellant spoke to the Borough Manager on seven separate

dates in 2014 and Appellant admitted the Race Street

property needed to be demolished and indicated he would

get the work done, specifically demolishing the Race Street

property and repairing the sewer lines. (R.R. at 4a.)

2. A notice of vio lation dated December 17, 2014, was mailed

to Appellant’s brother and sister

- in

- law. (R.R. at 5a.)

3. Appellant, acting on behalf of his brother and sister

- in

- law,

contacted the Borough regarding the notice of violation and

attempted to resolve same. (R.R. at 5a.)

4. A citation was issued against Appellant’s brother and sister

in

- law on September 28, 2014 for violation of the Borough

Code. (R.R. at 5a.)

5 “A verments in a pleading to which a responsive pleading is required are admitted when

no t denied specifically or by necessary implication.” Pa.R.C.P. No. 1029(b).6 5. Appellant attended the resultant hearings on behalf of his

brother and sister

- in

- law. (R.R. at 5a.)

6. Appella nt requested a meeting with the Borough Council to

discuss resolution of the nuisance. (R.R. at 6a.)

Because Appellant has not filed a responsive pleading to these

averments, they are deemed admitted pursuant to Pa.R.C.P. No. 1029(b). A review

of the r ecord further indicates Appellant had well more than the r equisite six

months ’ time in which to remediate violations of which he was well aware.

Pursuant to Section 6111(1)(i), however, the six

- month period would only begin to

run after the receipt of an order to correct the violation. Presumably, an order was

issued by the magisterial district judge after Appellant’s brother and sister

- in

- law

were found guilty of violating the Borough ordinance. H owever, there is no

evidence of record to indicate Appell ant received a copy of this order or that he

was named in it, an unlikely event given the citation was not issued to him.

The Borough filed its action in December 2015. The trial court’s

o rder granting the Borough’s preliminary injunction was issued o n February 9,

2016

. (R.R. at 55a.) Given the complaint was filed prior to Appellant being in

receipt of an order to correct the violation, it is clear the six month remediation

period required unde r Section 6111(1)(i) was not met

.

Our analysis does not end there, however, because the complaint filed

by the Borough was also brought under the provisions of the Borough Code

, more

specifically under Section 1202(4)

. Section 1202 of the Borough Code sets forth

the specific powers of the Borough. Subsection (4) grants a borough the specific

power to “prohibit and remove any nuisance or dangerous structure on public or

private grounds, including, but not limited to, accumulations of garbage and

rubbish... The borough may... seek relief by bi ll in equity.” 8 Pa.C.S. § 1202(4).7

Section 1202 contains no language regarding receipt of an order by the property

owner prior to the initiation of an action.

Appellant argues the Borough failed to plead and litigate the

enforcement of a specific or dinance and therefore a clear right to rel ief could not

be demonstrated. He asserts Section 1202(4) must be “ used in conjunction with

Section 1202(5) of the Borough Code to enforce the specific ordinances passed

under the Code’s authority. ” (Appellant’s Brief at 18.) Citing Borough of New

Bloomfield v. Wagner, 35 A.3d 83 9 (Pa. Cmwlth. 2012), Appellant argues the

Borough has not shown that Appellant violated a specific section of the Borough’s

property code and, therefore, the underlying equity action was based merely on an

allegation that the Race Street property at issue was a nuisance. (Appellant’s Brief

at 19.) Appellant points to City of Beaver Falls v. Samuels

, 414 A.2d 676 (Pa.

Super. 1979) as standing for the proposition that, where no ordinance was c ited by

the city when it sought relief

, an equity suit i s not authorized.

It is not clear how this Court’s holding in Borough of New Bloomfield

assists Appellant as that case involved the validity of an ordinance adopted

pursuant to Section 1202(5) 6 and not an analysis of what must be plead ed when

initiating an action under Section 1202(4). Appellant’s interpretation of Beaver

Falls is based on a footnote of that case

, which in pertinent part states “[t]he

section in question there, 53 P.S. [ § ] 46202(5) 7

, is the parallel to [§] 37403(16) 8 of

6 Subsection (5) grants the Borough the specific power to “make regulations as may be

necessary for the health, safety, morals, general welfare and cleanliness and beauty, convenie nce,

comfort and safety of the borough.” 8 Pa.C.S. § 1202(5).

7 Act of February 1, 1966, P.L. (1965) 1656, as amended

, formerly 53 P.S. § 46202,

repealed and reenacted by the Act of April 18, 2014, P.L. 432, effective June 17, 2014, 8 Pa.C.S.

§ 1202

.8

the Third Class City Code and only contemplates an equity action in conjunction

with an ordinance

. ” Beaver Falls, 414 A.2d at 678 n.2. While the court in Beaver

Falls referenced the statutory precursor to Section 1202(4), the case itself turned

on an interpretation of a different, and likewise

- repealed, provision of the Borough

Code. Because the passage in that particular footnote was not necessary to the

outcome of the case, it merely constitutes non

- b inding dicta. See In the Interest of

L.J., 79 A.3d 1073, 1081 (Pa. 2013). To the extent this footnote is persuasive, the

complaint filed by the Borough sufficiently pleads a violation of the Borough

ordinance.

The citation issued to Appellant’s brot her and sister

- in

- law set s forth a

violation of Section 4, Subsec tion 102 of the Borough ’s Ordinance

. The natu re of

the offense is described i n the citation as involving “dangerous buildings that are

declared to be a nuisance that the owner has failed to repair, vacate, or demolish

after receiving letter.” (R.R. at 25a.) As discussed above, this citation was

attached to the complaint filed by the Borough

. The complaint included averments

that Appellant had multiple conversations with the Borough manager in regards to

the condition of the Race Street property

. Appellant was aware of the citation filed

against his b rother and sister

- in

- law and attended the hearing before the magisterial

district judge on their behalf, and requested a meeting with the Borough Council to

discuss resolution of the nuisance. Appellant took possession of the Race Street

property knowing it had been declared a nuisance.

We therefore conclu de the complaint filed by the Borough complied

with any pleading requirements set forth in Section 1202(4) of the Borough Code.

8 Act of June 23, 1931, P.L. 932, as amended, formally 53 P.S. § 37403, as codified by

the Act of November 24, 2015, P. L. 242

, effective January 25, 2016, 11 Pa.C.S. § 12403

.9

The Boroug h has therefore established it has a clear right to relie f under Section

1202(4) to “require the removal of any nuisa nce or dangerous structure by the

owner... or... seek relief by bill in equity

. ”

Appellan t next argues he was not given reasonable time to bring the

Race Street property into compliance following the trial court’s order to demolish

,

as the trial court order ed him to abate the nuisance immediately. (Appellant’s

Brief at 22.) Appellant’s argument is presumably premised upon a belief that the

buildings situated on the Race Street property a re salvageable.

The trial court’s order dated March 4, 2016 indeed directed the

property be demolished immediately, and ordered Appellant to remove all

accumulated raw sewage and repair the broken sewer line within fifteen days.

(R.R. at 59a.) If Appellant fail ed to demolish the buildings within three days of the

date o f the order, the Borough was permitted to take the steps necessary to do so.

Id. We can only assume the trial court’s order did not allow for more time to bring

the Race Street property into compliance because such compliance was not

possible

. Appellant has offered nothing contrary to this conclusion.

When it is determined that a public nuisance exists, the courts should

not devise a remedy harsher than the minimum necessary to properly abate the

nuisance. Groff v. Borough of Sellersville, 314 A.2d 3 28, 33 2 (Pa. Cmwlth. 1974)

.

The remedy selected to abate the nui sance should not be punitive; rather, it should

be shaped to correspond to the nature and extent of the nuisance. King v. Township

of Leacock

, 552 A.2d 741, 744 (Pa. Cmwlth. 1989)

. The radical remedy of

demolition should only be used when there exists no other practical alternative. Id.

Appellant failed to appear for the February 9, 2016 hearing on the

Borough’s Petition for Preliminary Injunction, despite having been served with a10

notice of the date of the hearing. (R.R. at 65a

- 66a, 82a

- 86a.) At the March 4,

2016 hearing to make the injunction permanent, Appellant was provided an

o pportunity to testify on his own behalf but chose not to, stating that he would

“close the process and [be] done with whatever has to go on today.” (R.R. at

205a.) Therefore, the testimony and evidence presented at the February 9, 2016

and March 4, 2016 hearing s as to derelict conditions of the Race Street property

were uncontroverted

.

Donald Segal (Segal), president of the Borough Council, testified to

the nature of complaints about the Race Street property, specifically that the

building was fallin g down, animals were roaming the building, and the re was a

smell from raw sewage that had been dumping from the property. (R.R. at 70a.)

The raw sewage wa s “through the entire property.” Id. at 72a.

Irene Kudel (Kudel)

, whose property lies adjacent to the Race Street

property, testified at the March 4, 2016 hearing as to the conditions of that property

and the presence of r ats, snakes and skunks. (R.R. at 184a.) Debris f rom the Race

Street property had encroached on her property to the extent she c ould no longer

mow the grass by her fence. Id. The sm ell from the broken sewer line wa s evident

inside her home, even during the wintertime. Id. at 183a. She used her son’s

smoker in the summer months so she c ould “smell the wood instead of the crap.”

Id.

Another neighbor, James Paulaconis (Paulaconis), testified he had

lived in his home for forty years but was “ready to move because [he wasn’t] going

to retire next to an open sewer with a building that looks like it belonged in Syria

ready to fall on the street” and his property along with it. (R.R. at 175a.)

Paulaconi s testified the sewer collapsed around the time the roof fell in, “ a year11

and a half ago .” Id. Based on that uncontested time line, raw sewage has been

filling the property for the better part of three years. Paulaconis described a “hole

in the roof the size of a Volkswagen that’s been in there forever and the rain and

the mold and everything just pours right into that lower property.” Id. at 177a

. He

testified to having spent $11,000.00 on a patio he was ash amed to have people on

in the summertime because of the smell from the Race Street property. Id. at 176a.

It is likewise apparent Appellant was provided several opportunities to

abate the nuisance conditions at the pro perty and simply chose not to. Ha ving

spoken multiple times with the Borough manager in 2014 and represented his

brother and sister

- in

- law in proceedings before the magisterial district judge,

Appellant had clear knowledge of the conditions prior to his acquisition of the

Race Street prop erty in May 2015. Following that acquisition, b y letter dated

September 21, 2015, Appellant was notified by the Borough that transfer of the

property was made in violation of Section 107.6 of the International Property

Maintenance Code, which prohibits th e transfer of property upon which a Notice of

Violation has been issued. (R.R. at 27a.) This letter notified Appellant that, to

transfer property against which a violation has been issued, a signed and notarized

statement must be provided which acknowled ges responsibility for the violations.

Id. Appellant was further notified the Borough required his assurances that he

would make the necessary corrections and abate the violations. Id. This letter was

mailed via certified mail and was signed for by App ellant on September 26, 2015.

Id. at 28a. Segal testified he worked with Appellant close to ten months in an

attempt to get the nuisance conditions abated. (R.R. at 69a.)

The trial court’s February 9, 2016 order granting the preliminary

injunction provided Appellant fifteen days from the date of the order to arrange for12

the demolition of the premises. (R.R. at 57a.) Appellant instead “spent a lot of

time at [his] mother’s house in Jersey.” (R.R. at 166a.)

Kudel testified that the last time she saw Appellant was in June 2015.

(R.R. 189a.) Appellant admitted the last date he was at the Race Street property

was June 10, 2015. (R.R. at 170a.) Paulaconis testified som e preliminary work

was done when the roof collapsed to keep the overhang from falling into the street.

Id. at 176a. Otherwise, he observed Appellant removing “some radiators” fr om the

property and replacing them with construction debris and tires. Id.

The record is replete with evidence to support demolition of the

struct ures on the Race Street property

. Appellant has provided no details about

how he would bring the property into compliance, only argued he was n o t given

that opportunity. The record speaks otherwise. Appellant has done nothing to

remediate the conditions at the Race Street property since it was conveyed to him

nearly two year s ago. This case can be most likened to City of Erie v. Stelmack

,

780 A.2d 824 (Pa. Cmwlth. 2001), in which this Court upheld the trial court’s

order granting the city’s request to demolish an apartment building. The trial court

noted what repairs had been made to the building and the numerous opportunities

given to appellant to bring the building up to code an d which were ignored.

Instantly, t he trial court did not err in ordering the demolition of rat

- and snake

infested structures filled with several years’ worth of raw sewage and wh ich border

occupied homes.

Finally, Appellant argues the remedy ordered by the trial court was

overly broad and unduly oppressive upon the Appellant. (Appellant’s Brief at 28.)13 H aving already concluded no practical alternative exists but to

demolish the structures on the Race Str eet property, we need not address this

argument a second time.

For these reasons, the March 4, 2016 order of the trial court is

affirmed.

___________________________ JOSEPH M. COSGROVE, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Borough of Shenandoah :

:

v. :

:

Carlos Matilde Cruz, : No. 715 C.D. 2016

Appellant :

O R D E R

AND NOW, this 22 nd day of May

, 201 7

, the March 4, 2016 order of

the Court of Common Pleas of Schuylkill County is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge