IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

 v. : No. 480 C.D. 2022

: Submitted: April 28, 2023

Bryan Neely, :

:

Appellant :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: March 25, 2024

Bryan Neely (Landowner) appeals from the order of the Philadelphia 

County Court of Common Pleas (trial court) dated April 19, 2022, that fined 

Landowner $113,800 for violations of The Philadelphia (City) Code of General 

Ordinances (Code).1 This appeal returns to us after remand. After careful review, 

we affirm.

In City of Philadelphia v. Neely (Pa. Cmwlth., No. 1293 C.D. 2019,

filed August 30, 2021) (Neely I), Landowner sought review of the July 31, 2019 

order of the trial court that denied his petition to open the May 14, 2019 default 

judgment entered in favor of the City which imposed a $1,138,000 fine against him. 

The default judgment followed Landowner’s failure to respond to a complaint filed 

1 Philadelphia, Pa., Code of General Ordinances (Code) §§1-101 - 22-1409 (2020).
2

against him by the City alleging violations of the Code on Landowner’s property 

located at 1261 Point Breeze Avenue, Philadelphia, Pennsylvania (the Premises).

2

Specifically, we summarized the facts of the case as follows.

In April 2017, the Philadelphia Department of 

Licenses and Inspections (Department) issued 

[Landowner] a notice of violation, informing him that the 

Premises had been declared unsafe pursuant to Section 

PM-108.1 of the Code[] and that he was required to repair 

or demolish the structure within 30 days. Complaint, 

Exhibit A, Final Warning/Unsafe Building, 4/20/17 

(Notice) at 1 []. The Notice advised [Landowner] as 

follows:

Fines shall be imposed from 04/20/17 and shall be 

assessed in the amount of $150 to $2000 per 

violation each and every day the violation remains 

uncorrected.

Your failure to correct the violations may result in 

the revocation or suspension of certain licenses and 

permits.

Your failure to correct the violations may also result 

in the City filing a legal action against you to obtain 

compliance, an injunction, and the imposition of 

fees and fines.

Notice at 1-2 []. [Landowner] did not correct the alleged 

violation.

2

In considering the present appeal, it is appropriate for this Court to take judicial notice of 

our prior memorandum opinion and order in Neely I. See, e.g., Pa.R.E. 201(b)(2) (permitting 

courts to take judicial notice of facts that may be “determined from sources whose accuracy cannot 

reasonably be questioned”); Moss v. SCI-Mahanoy Superintendent Pennsylvania Board of 

Probation and Parole, 194 A.3d 1130, 1137 n.11 (Pa. Cmwlth. 2018) (“[T]his Court may take 

judicial notice of information contained in the publicly available docket of [the underlying 

proceedings],” and “‘[i]t is well settled that this Court may take judicial notice of pleadings and 

judgments in other proceedings . . . where, as here, the other proceedings involve the same 

parties.’”) (citations omitted). 
3

In June 2018, the Department issued [Landowner]

another warning (Final Warning) deeming the Premises 

unsafe pursuant to Section PM-108.1.4 of the Code.[]

Complaint, Exhibit B, Final Warning/Unsafe Building, 

4/20/17 (Final Warning) at 1 []. The Department directed 

[Landowner] to obtain all permits required by the City and 

warned that failure to bring the Premises into compliance 

within 30 days could result in the City taking action to 

address the Code violations at his expense. Id. The 

Department reiterated its warning regarding the accrual of 

fines and reinspection fees. See Final Warning at 1-2 []. 

[Landowner] again failed to remedy the Code violations. 

Complaint at 3, ¶ 10 [].

[Landowner] did not file an administrative appeal 

from either of the notices of violation. See Complaint at 

3, ¶ 13 []. In April 2019, the City filed the Complaint 

against [Landowner] seeking injunctive relief and 

requesting that the trial court order [Landowner] to pay a 

fine of $2,000 for each day the Premises remained out of 

compliance with the Code.[] Complaint at 4-5 []. The 

City averred that, as of the date of filing, [Landowner] had 

accrued $1,138,000 in cumulative statutory fines for the 

Code violations identified in the Notice. Complaint at 5, 

¶ 23 []. Further, the City sought $2,400 in reinspection 

fees, plus any additional fees it might incur conducting 

subsequent reinspections of the Premises in accordance 

with Section A-901.12.2 of the Code, Phila., Pa., Code § 

A-901.12.2. Complaint at 5-6, ¶¶ 25-28 []. As required 

by Rule 1018.1 of the Pennsylvania Rules of Civil 

Procedure [Pa.R.Civ.P. 1018.1], the Complaint was 

endorsed with a Notice to Defend advising [Landowner]

to consult an attorney and providing contact information 

for the Philadelphia Bar Association’s lawyer referral and 

information service. Notice to Defend [].

In April 2019, the trial court issued a Rule to Show 

Cause with a return/hearing date of July 2, 2019. Rule to 

Show Cause, 4/3/19 []. The trial court stated that the 

purpose of the hearing was to determine whether to enter 

any orders against [Landowner] for failure to maintain the 

Premises in accordance with the Code. Id. The trial court 

advised [Landowner] that failure to attend the July 2, 2019 
4

hearing could result in the imposition of fines or the entry 

of other appropriate orders. Id.

[Landowner] did not respond to the Complaint. See

Trial Ct. Op. at 2 []. On May 1, 2019, despite the trial 

court’s scheduling of a hearing, the City sent [Landowner]

a 10-day notice of praecipe for default judgment via 

certified mail, again suggesting that [Landowner] retain 

counsel and providing contact information for the 

Philadelphia Bar Association’s lawyer referral and 

information service.[] See Praecipe for Default Judgment 

at 1 [] (citing Pa.R.C[iv].P. [] 237.1(2)); Notice of 

Praecipe for Default Judgment []. [Landowner] still did 

not respond to the Complaint.

On May 14, 2019, the City filed a praecipe for entry 

of judgment by default against [Landowner] in the amount 

of $1,138,000, and the trial court entered the judgment the 

same day.[] Praecipe for Default Judgment at 1 []; Trial 

Ct. Docket at 2 []. The prothonotary for the trial court 

provided notice to the parties of the entry of the default 

judgment in accordance with Rule 236(a)(2) of the 

Pennsylvania Rules of Civil Procedure, Pa.R.C[iv].P. []

236(a)(2). See Trial Ct. Docket at 2 [].

On July 2, 2019, the trial court held the hearing on 

the Rule to Show Cause. Transcript of Testimony (T.T.), 

7/2/19 at 7 []. [Landowner’s] counsel stated that he had 

just learned of the entry of the default judgment against his 

client one day prior, on July 1, 2019, and counsel for the 

City agreed to a continuance to permit [Landowner’s]

counsel to file the [petition to open default judgment 

([Petition[)]. Id. at 4 []. [Landowner’s] counsel filed the 

Petition the following day. Trial Ct. Docket at 2 []; 

Petition at 1-7, 7/3/19 []. [Landowner] provided an 

affidavit in support of the Petition, acknowledging that he 

received the City’s notice of praecipe for default judgment 

on or about May 1, 2019. [Landowner] Affidavit at 1, ¶ 4

[]; see also Petition at 2, ¶ 6 []. [Landowner] further 

averred that, sometime thereafter,[] he telephoned and 

spoke with Brendan Philbin, Esquire (Attorney Philbin)[]

to discuss his concerns about the notice. [Landowner]

Affidavit at 1, ¶ 4 []. [Landowner] alleged that Attorney 
5

Philbin informed him he “would be ok” if he “continued 

to act quickly” to bring the Premises into compliance and 

if he “had permits in place by the . . . July 2, 2019 

hearing[.]” Id. at 2 []. [Landowner] further attested that 

Attorney Philbin failed to explain the risk of a default 

judgment or to advise him to retain counsel and to respond 

immediately to the Complaint. Id. at 2, ¶ 6 []. 

[Landowner] asserted that he was not aware that a default 

judgment was entered on May 14, 2019, although he does 

not specifically deny receipt thereof. Id. at 2, ¶ 8 []. 

[Landowner] attested that during the week of June 11, 

2019, he secured counsel to represent him at the July 2, 

2019 hearing. Id. at 2, ¶ 9 []. [Landowner] averred that 

he did not inform his counsel of the default judgment at 

that time because he was not aware of it. Id.

On July 31, 2019, the trial court entered an order 

denying [Landowner’s] Petition. Trial Ct. Order, 7/31/19

[]. [Landowner] filed an appeal from that order.

Neely I, slip op. at 2-6 (citations and footnotes omitted).

Ultimately, we affirmed the trial court’s denial of the Petition and entry 

of default judgment, but vacated the $1,138,000 judgment award and remanded for 

further proceedings to determine an appropriate fine. Neely I, slip op. at 1. In 

explaining the decision to remand we stated, in relevant part:

Facially, the amount of the fine here is so large that it could 

well shock the conscience of a court. The City was 

authorized to impose a fine of $150 to $2,000 per day; it 

imposed the maximum daily fine allowable, and it did so 

for 669 days as of the date the Complaint was filed and 

sought ongoing fines to an undetermined date, without 

providing any evidence of the propriety or necessity of 

such a massive fine. Even though [Landowner] failed to 

establish facts entitling him to open the default judgment, 

we conclude that, at a minimum, the trial court was 

required to analyze separately the issues bearing on the 

propriety of the fine amount, taking evidence if necessary.

* * * *
6

[A]lthough the City’s praecipe for entry of the default 

judgment stated a specific dollar amount, its damages were 

not in fact reduced to a sum certain, nor did the Complaint 

specify a definite fine. Therefore, the trial court was 

required to conduct a separate proceeding to determine the 

proper amount of the judgment. Accordingly, we vacate 

the trial court’s judgment only as to the amount of the fine, 

and we remand this matter to the trial court for 

consideration of the appropriate amount of the fine to be 

imposed.

Neely I, slip op. at 17-19 (citations omitted).

On remand, the trial court held an evidentiary hearing on March 8, 

2022, to assess damages. Reproduced Record (R.R.) at 56a. Landowner, through 

his counsel, did not argue the facts of the case and argued only the amount of the 

fine. Id. at 91a. In an order dated April 19, 2022, the trial court found in favor of 

the City and imposed a reduced fine of $113,800, which is 10% of the maximum 

fine amount available under the Code. Id. at 144a. Landowner then filed the instant 

appeal to this Court.

3

Landowner first argues that the City exceeded its authority under 

Section 17 of the First Class City Home Rule Act (Home Rule Act),

4

and the 

3

“Whether a fine is excessive under our Constitution is a question of law, therefore our 

standard of review is de novo and our scope of review is plenary.” Commonwealth v. Eisenberg, 

98 A.3d 1268, 1279 (Pa. 2014).

4 Act of April 21, 1949, P.L. 665, as amended, 53 P.S. §13131. Section 17 of the Home 

Rule Act states, in pertinent part:

Ordinances, rules and regulations adopted under the authority of this 

act or under the provisions of any charter adopted or amended 

hereunder shall be enforceable by the imposition of fines, forfeitures 

and penalties, not exceeding two thousand three hundred dollars 

($2,300), and by imprisonment for a period not exceeding ninety 

days. Notwithstanding the other provisions of this section, a city of 

the first class may increase any fine, forfeiture or penalty authorized 
7

Philadelphia Home Rule Charter5in imposing a total fine exceeding $2,300.

Appellant’s Brief at 7. Section A-601.3 of the Code describes violations constituting 

Class III offenses and mandates that such violations shall be “subject to the 

maximum fine set forth in subsection 1-109(3) of the [Code].” Code §A-601.3. 

Section 1-109(3)(e) of the Code provides for a maximum $2,000 fine for each Class 

III offense committed on or after January 1, 2009. Code §1-109(3)(e). Section A601.4 of the Code further states: “Each day that a violation continues after issuance 

of a notice or order shall be deemed a separate offense.” Code §A-601.4; see also 

City of Philadelphia v. DY Properties, LLC, 223 A.3d 717, 724 (Pa. Cmwlth. 2019).

This Court has consistently upheld the cumulative nature of Code

violations. DY Properties LLC, 223 A.3d at 720 (affirming a total fine of $243,200

resulting from daily fines for noncompliance); JPR Holdings, LLC v. City of 

Philadelphia (Pa. Cmwlth., No. 820 C.D. 2019, filed January 8, 2021) slip op. at 12-

under this section, provided that the increase does not exceed four 

hundred dollars ($400) in any calendar year and the total amount of 

the fine, forfeiture or penalty does not exceed two thousand dollars 

($2,000).

5 Section 1-100 states, in relevant part:

The City shall have the power to enact ordinances and to make rules 

and regulations necessary and proper for carrying into execution its 

powers; and such ordinances, rules and regulations may be made 

enforceable by the imposition of fines, forfeitures and penalties not 

exceeding three hundred dollars and by imprisonment for a period 

not exceeding ninety days or by such greater fines, forfeitures and 

penalties and periods of imprisonment as the General Assembly of 

the Commonwealth of Pennsylvania may from time to time 

authorize.

Philadelphia Home Rule Charter art. I, §1-100. The three hundred dollar ($300) maximum limit 

on fines, forfeitures, and penalties was increased to $2,300 by the General Assembly effective 

November 30, 2004. Act of November 30, 2004, P.L. 1523, No. 193.
8

13 (finding no abuse of discretion by the trial court in imposing $52,000 in total fines

where a maximum of nearly $800,000 in fines was authorized).

6

 Further, in City of 

Philadelphia v. Broad & Olney Alliance, LP, this Court found “no abuse of 

discretion on the part of the trial court in imposing the $26,850 aggregate fine for 

179 days of Class III Code violations.” City of Philadelphia v. Broad & Olney 

Alliance, LP (Pa. Cmwlth., No. 49 C.D. 2019, filed July 14, 2020) slip op. at 10-11. 

This Court observed that “had the trial court imposed the $2,000 daily fine permitted 

by the Code for Class III violations, [Broad and Olney] could have faced a fine of 

$358,000.” Id., slip op. at 11 n.7. 

Here, Landowner was fined for repeated Class III offenses under the 

Code. Neely I, slip op. at 3 n.5. Each Class III offense carries a maximum fine of 

$2,000. Id.; Code §1-109(3)(e). The Code provides that each day of noncompliance 

is a new violation. Code §A-601.4. As emphasized by the trial court, the City has 

an interest in protecting neighbors and the public from “recalcitrant property owners 

like [Landowner] who refuse to correct dangerous Code violations over a long period 

of time.” See Trial Court Opinion, 6/29/22, at 6, R.R. at 173a. Based on the plain 

language of the Code and applicable case law, we discern no error in the trial court’s 

imposition of cumulative fines.

Landowner further argues that the $113,800 amount of his fine violates 

constitutional prohibitions against excessive fines in the Eighth Amendment of the 

United States Constitution7and article I, section 13 of the Pennsylvania 

6

See Pa.R.A.P. 126(b)(1)-(2) (“As used in this rule, ‘non-precedential decision’ refers to 

. . . an unreported memorandum opinion of the Commonwealth Court filed after January 15, 2008. 

[] Non-precedential decisions . . . may be cited for their persuasive value.”).

7 The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “The 
9

Constitution.

8

 Appellant’s Brief at 12. As summarized by this Court in City of 

Philadelphia v. Joyce:

“The touchstone of the constitutional inquiry under the 

Excessive Fines Clause is the principle of proportionality: 

The amount of the [fine] must bear some relationship to 

the gravity of the offense that it is designed to punish.”

United States v. Bajakajian, 524 U.S. 321, 334 (1998); see 

also Commonwealth v. Eisenberg, 98 A.3d 1268, 1279-80 

(Pa. 2014) (“[b]y its plain language, the [second] clause 

employs a concept of proportionality; the difficulty is 

articulating a principle by which to measure excessiveness 

or proportionality”). As our Supreme Court has explained:

The primary purpose of a fine or a penalty is 

twofold: to punish violators and to deter future or 

continued violations. Since it serves not only as a 

punishment but also as a deterrent, the amount of 

the fine can be raised to whatever sum is necessary 

to discourage future or continued violations, 

subject, of course, to any restriction imposed on the 

amount of the fine by the enabling statute or the 

Constitution.

Eisenberg, 98 A.3d at 1283 (quoting Commonwealth v. 

Church, 522 A.2d 30, 34 (Pa. 1987)) (brackets omitted).

Further, “[our Supreme Court] and [this] Court have 

rejected the notion that there must be strict proportionality 

between the harm resulting from the offense and the 

penalty imposed.” Eisenberg, 98 A.3d at 1281. Thus, a 

fine “violates the Excessive Fines Clause if it is grossly 

disproportional to the gravity of a defendant’s offense.”

[E]ighth Amendment is made applicable to the states through the Fourteenth Amendment.” 

Commonwealth v. Real Property & Improvements Commonly Known as 5444 Spruce Street, 832 

A.2d 396, 399 (Pa. 2003); U.S. Const. amend. XIV. 

8 Pa. Const. art. I, §13. Article I, section 13 states: “Excessive bail shall not be required, 

nor excessive fines imposed, nor cruel punishments inflicted.” Our Supreme Court held that article 

I, section 13 of the Pennsylvania Constitution is coextensive with the Eighth Amendment of the 

United States Constitution. 5444 Spruce Street, 832 A.2d at 399. 
10

Bajakajian, 524 U.S. at 334. Moreover, a fine may be 

deemed unconstitutionally excessive where “the amount 

. . . [is] so great as itself to be confiscatory and beyond the 

bounds of all reason and justice.” Church, 522 A.2d at 34.

City of Philadelphia v. Joyce (Pa. Cmwlth., No. 896 C.D. 2019, filed Dec. 4, 2020)

slip op. at 8-9.

In DY Properties, LLC, this Court held that a cumulative fine of 

$243,300 was constitutional and noted that

the fines issued against DY were [] imposed per day based 

upon repeated daily violations of numerous Code 

provisions. The violations pertained to potentially 

hazardous conditions on the [p]roperty which remained for 

approximately eight months, despite City demands to 

remediate. Thus, the significant fine was an accumulation 

of penalties arising solely from DY’s repeated and 

ongoing failure to correct the violations.

223 A.3d at 723 n.12. This Court in Joyce similarly held that cumulative fines under 

the Philadelphia Code totaling $25,000 were not unconstitutionally excessive where 

the City assessed the aggregate fine based on uncontested and longstanding Code 

violations stemming from the failure to remediate dangerous property conditions 

despite repeated notices and warnings from the City. Joyce, slip op. at 11-12.

We conclude the same here. Landowner’s original fine amount of 

$1,113,800 accrued over the course of 669 days at $2,000 per Class III Code 

violation, with each day constituting a separate violation. Neely I, slip op. at 2-6 n.6; 

see also Code §§1-109(3)(e); A-601.4. Landowner failed to file an administrative 

appeal of either notice issued by the City or similarly failed to respond to the City’s 

Complaint. Neely I, slip op. at 3-4. Landowner had 669 days of noncompliance and

took no actions to appeal or notify the City of any steps taken to fix the dangerous 

conditions on the Premises to comply with the Code. Although the reduced fine of 

$113,800 imposed here is clearly significant, that amount is a direct result of 
11

Landowner’s ongoing Code violations and failure to bring the Premises into

compliance with the Code. Because the fine was imposed as a result of Landowner’s

repeated failures to correct the potentially hazardous conditions on the Premises, we

discern no error in the trial court’s order and reject Landowner’s assertion that the

fine is unconstitutional.

Finally, and in further support of his argument that the fine is 

unconstitutional, Landowner asserts that the trial court’s fine is “grossly out of 

proportion to the value of the property which is the subject of the violations.” 

Appellant’s Brief at 16. We find this argument to be without merit. As this Court 

has previously explained, the value of the noncompliant property is not a

consideration of the trial court in considering fines for violations of the Code. See

Borough of Kennett Square v. Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth. 1994); see

also City of Philadelphia v. Okamoto (Pa. Cmwlth., No. 51 C.D. 2019, filed April

29, 2020) slip op. at 14; City of Philadelphia v. RB Parking, LLC (Pa. Cmwlth., No.

515 C.D. 2019, filed July 16, 2020) slip op. at 13-14.

Accordingly, we affirm the trial court’s order.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

 v. : No. 480 C.D. 2022

: 

Bryan Neely, :

:

Appellant :

O R D E R

AND NOW, this 25th day of March, 2024, the Order of the Philadelphia 

County Court of Common Pleas dated April 19, 2022, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge