IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. :

:

DY Properties, LLC, : No. 132 C.D. 2019

Appellant : Argued: November 12, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE COVEY FILED: December 12, 2019

DY Properties, LLC (DY) appeals from the Philadelphia County 

Common Pleas Court’s (trial court) December 20, 2018 order issuing a stop work 

order, granting a final injunction and imposing a statutory fine for violations of The 

Philadelphia (City) Code (Code). There are four issues for this Court’s review: (1) 

whether DY waived constitutional and evidentiary arguments by failing to appear 

before the trial court and present arguments; (2) whether the fine was excessive in 

violation of the United States and Pennsylvania Constitutions; (3) whether the trial 

court abused its discretion by imposing the fine; and (4) whether the trial court’s 

opinion reflects bias or partiality. After review, we affirm.

In July 2017, DY purchased the property located at 3325 North 9th 

Street in the City (Property) at sheriff’s sale. On April 13, 2018, the City’s 

Department of Licenses and Inspections (Department) inspector Martin Raudenbush 

(Raudenbush) inspected the Property and identified Code violations that included: 

DY’s lack of a vacant property license;1combustible waste accumulation on the 

 

1 Section 9-3905(1) of the Code provides: 
2

exterior of the building; combustible debris accumulation in the building’s interior; 

an inoperable sprinkler system; lack of certification evidencing that the fire 

suppression system was tested and in good working order; and missing downspouts. 

On April 17, 2018, the Department issued an Initial Notice of Violation and Order,

case number 629052 (April Violation Notice), listing the aforementioned violations 

and directing that they be corrected.2 DY did not appeal from the April Violation 

Notice.

On May 24, 2018, Raudenbush reinspected the Property and, on May 28, 

2018, issued a final warning (Final Warning) to DY because the violations had not 

been corrected. Raudenbush also discovered that the Property was now occupied by 

an auto repair shop. Raudenbush reinspected the Property on May 26, 2018, and 

issued a second final warning as it remained in violation of the Code, case number 

636058 (May Violation Notice),

3

for DY’s failure to obtain a use registration permit 

and a certificate of occupancy for the auto repair shop. Raudenbush also delivered a 

Notice of Intent to Cease Operations and Order (Notice of Intent) unless the 

violations were corrected by July 3, 2018. DY did not appeal from the May Violation 

Notice and did not respond to the Notice of Intent. On July 3, 2018, the Department 

issued a cease operations order (Cease Operations Order) and posted it on the 

Property. On July 17, 2018, Raudenbush conducted a follow-up inspection of the 

 

The owner of any structure that lacks the habitual presence of human 

beings who have a legal right to be on the premises, or at which 

substantially all lawful business or construction operations or 

residential occupancy has ceased within the past three (3) months, 

shall obtain a Vacant Structure License.

Phila., Pa., Code § 9-3905(1) (2015).

2 The April Violation Notice was addressed to two different record owners, one of whom

was Yoret Meir, also known as Yosef Meir, DY’s owner.

3 There is no Initial Notice of Violation and Order in the Reproduced Record for case 

number 636058.
3

Property to determine whether DY complied with the Cease Operations Order. 

Raudenbush observed that the loading dock door was open, and individuals were 

performing automobile tire changes and wheel work. Raudenbush posted another 

Cease Operations Order notice. 

On August 22, 2018, the City filed a complaint with a proposed rule to 

show cause and proposed order of a permanent injunction (Complaint) in the trial 

court seeking an order directing DY to correct all violations4and imposing fines for 

past and ongoing violations and statutory reinspection fees.

5 On October 11, 2018, 

the trial court held a hearing, at which DY’s owner Yoret Meir, also known as Yosef 

Meir (Meir), appeared and accepted service on DY’s behalf. The trial court 

continued the hearing until December 20, 2018, and a new hearing notice was issued 

to the parties. DY did not file an answer to the Complaint.

On December 20, 2018, the trial court held the scheduled injunction 

hearing. However, neither Meir nor any other DY representative appeared. DY’s 

tenant, Nicholas Adeleye (Adeleye) attempted to participate in the hearing; however, 

upon the City’s objection, the court informed Adeleye that he did not have standing 

to do so. Thereafter, the City presented Raudenbush’s testimony regarding his 

inspections of the Property and the violations he observed. He also described that, on

November 21, 2018, long after the Cease Operations Order had been posted, while 

performing an inspection next door to the Property, Raudenbush again observed 

individuals performing tire changes at the Property. He required all individuals to 

vacate the Property. Finally, Raudenbush testified that the violations had not been 

 

4 The Complaint and proposed order did not include the use permit violation contained in the 

May Violation Notice because, (although not of record) according to the City, DY obtained a use 

permit before the City filed the Complaint. 

The City contends that DY was required to obtain a vacant property license because DY did 

not have an occupancy permit and, thus, the tenant’s occupancy was illegal.

5 Notably, DY’s Code violations continued even after the City filed the Complaint. 
4

corrected; specifically, DY had not obtained a certificate of occupancy, the 

combustible material had not been removed from the Property, and the sprinkler 

system was not operational.

The City asked the trial court to order that the violations be corrected 

and that the Property remain vacant until DY complied. The City also requested fines 

totaling $243,200.00. The City explained that, of the total fine, $133,000.00 

represented the $150.00 daily fine for each of the five violations6referenced in the 

April Violation Notice for 75 days, plus a fine of $1,000.00 per day for violating

Section F-915.1 of the Code7(pertaining to testing and certification of the fire 

suppression system). The remaining $110,200.00 of the fine consisted of a $2,000.00 

per day fine for DY’s ongoing failure to obtain a certificate of occupancy as the May 

Violation Notice mandated.

8

 Because DY did not attend the hearing, it did not

challenge the City’s calculations, claim that the City’s request was excessive, or 

otherwise oppose the fine. By December 20, 2018 order, the trial court granted the 

City’s requested relief.

On January 9, 2019, counsel for DY entered his appearance and filed a 

motion for reconsideration (Reconsideration Motion), wherein DY averred, inter alia,

that: Raudenbush inspected the Property on December 19, 2018; Raudenbush saw the 

 

6 At the time the City filed the Complaint, Section A-601.1 of the Code provided: 

Any person who shall violate any provision of this [C]ode or the 

technical codes or regulations adopted thereunder; or who shall fail to 

comply with any order issued pursuant to any section thereof . . . shall 

be subject to a fine of not less than $150.00 and not more than 

$300.00 for each offense.

Phila., Pa., Code § A-601.1.

7 Pursuant to Section A-601.2 of the Code, a violation of Section F-915 of the Code is a 

Class II offense. Section 109(2) of the Code provides for a maximum $1,000.00 fine for each Class 

II offense committed on or after January 1, 2006.

8 Section A-601.3 of the Code provides that a violation of Section A-701 of the Code is a 

Class III offense. Section 1-109(3)(e) of the Code provides for a maximum $2,000.00 fine for each 

Class III offense committed on or after January 1, 2009.
5

permits issued for the electrical work (issued October 12, 2018) and fire suppression 

system (issued December 18, 2018), and informed Adeleye that he would request a 

continuance of the December 20, 2018 hearing; the City did not request the 

continuance; and DY did not attend the hearing because the hearing was to be 

continued. DY also argued that the fine was excessive. DY attached copies of the 

permits and Adeleye’s affidavit describing the inspector’s representation as exhibits 

to the Reconsideration Motion. The City asserted in its response to the 

Reconsideration Motion (Response) that the permits were not in evidence, and denied 

that Raudenbush told Adeleye the hearing would be continued, that the City would 

request a continuance, or otherwise stated that DY should not attend the hearing. The 

City attached Raudenbush’s affidavit to its Response.

On January 22, 2018, the trial court held a hearing on the 

Reconsideration Motion, at which both Adeleye and Raudenbush testified.9 

Thereafter, the trial court denied the Reconsideration Motion from the bench. DY 

appealed to this Court.10

Before addressing DY’s arguments on appeal, this Court must consider 

the City’s contention that DY waived all issues by failing to appear and raise them at 

the December 20, 2018 trial court hearing.

11

 

9 The original record does not contain a transcript of the hearing on the reconsideration 

motion. 

10 “[W]hen reviewing the grant or denial of a final or permanent injunction, an appellate 

court’s review is limited to determining whether the trial court committed an error of law.” Buffalo 

Twp. v. Jones, 813 A.2d 659, 663-64 (Pa. 2002). Further, “[w]hether 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).

11 DY does not dispute that it received notice of the hearing but, rather, contends that 

Raudenbush informed Adeleye that he would request a continuance and, therefore, DY’s absence 

should be excused. Both Raudenbush and Adeleye testified at the Reconsideration Motion hearing 

about Raudenbush’s purported representations to Adeleye. The trial court as factfinder considered 

the testimony, evaluated the witnesses’ credibility and denied the Reconsideration Motion. 

Notably, “the purpose of post-trial motions is for the court to correct its own errors, not for parties 

to remedy their own mistakes.” Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 263 (Pa. 
6

“‘[T]o preserve an issue for appeal, a litigant must make a timely, 

specific objection at trial and must raise the issue on post-trial motions.’ Issues not 

preserved for appellate review cannot be considered by this Court, even if the alleged 

error involves ‘a basic or fundamental error.’” Mun. Auth. of the Borough of Midland

v. Ohioville Borough Mun. Auth., 108 A.3d 132, 136-37 (Pa. Cmwlth. 2015) (original 

emphasis omitted) (quoting Dennis v. Se. Pa. Transp. Auth., 833 A.2d 348, 352 (Pa. 

Cmwlth. 2003)). Failure to appear at a hearing may result in a waiver of all 

arguments for appeal. See City of Phila. v. Frempong, 762 A.2d 395, 397 (Pa. 

Cmwlth. 2000) (Where appellants failed to attend the hearing, the trial court issued a 

permanent injunction directing the removal of a commercial truck from a residential 

property. On appeal, this Court affirmed concluding that “[a]ppellants’ failure to 

attend the hearing and raise issues that could be heard on appeal is fatal to their 

claim.”). Specifically, the Pennsylvania Supreme Court has found an excessive fines 

 

Super. 2015); see also Paparelli v. GAF Corp., 549 A.2d 597 (Pa. Super. 1988). This Court has 

explained:

An order denying reconsideration is unreviewable on appeal. See 

Huntington Nat. Bank v. K-Cor, Inc., 107 A.3d 783, 787 (Pa. Super. 

2014) (‘Pennsylvania case law is absolutely clear that the refusal of a 

trial court to reconsider, rehear, or permit reargument of a final decree 

is not reviewable on appeal.’); see also Rabatin v. Allied Glove Corp.,

24 A.3d 388, 391 (Pa. Super. 2011) (noting that issues not raised 

before the trial court are not preserved for appeal, and issues raised in 

motions for reconsideration are beyond the jurisdiction of th[e]

[c]ourt). Further, a trial court may also properly refuse to consider 

new evidence presented for the first time in a motion for 

reconsideration. See Kelly v. Siuma, 34 A.3d 86, 94 n.8 (Pa. Super. 

2011).

Bollard & Assocs. v. H & R Indus., Inc., 161 A.3d 254, 256 (Pa. Super. 2017) (emphasis added); see 

also, Fullman v. Bureau of Admin. Adjudication (Pa. Cmwlth., No. 975 C.D. 2018, filed April 30, 

2019). Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 

69.414(a), unreported opinions are not binding precedent, but may be cited for their persuasive 

value. Fullman is cited herein for its persuasive value. Accordingly, this Court may not review the 

trial court’s order denying reconsideration.
7

challenge is waived where the issue was not raised before an administrative tribunal. 

See HIKO Energy, LLC v. Pa. Pub. Util. Comm’n, 209 A.3d 246 (Pa. 2019). This 

Court has also previously found waiver of excessive fine allegations where such 

allegations were not raised before the trial court. See Commonwealth v. Dennis (Pa. 

Cmwlth., No. 1873 C.D. 2013, filed October 9, 2014); see also In re: 1448 W. 

Loudon St. (Pa. Cmwlth., No. 201 C.D. 2012, filed August 19, 2013); Commonwealth 

v. 928 W. Lindley Ave, Phila., Pa. (Pa. Cmwlth., No. 766 C.D. 2012, filed May 2, 

2013).

This Court has previously held that where an issue which 

could have been raised earlier is raised for the first time 

in a motion for reconsideration, it is not preserved for 

appellate review. See Bedford Downs M[gmt.] Corp[.] v. 

State Harness Racing Comm[’n], . . . 926 A.2d 908, 924 

([Pa.] 2007) (‘[I]ssues raised for the first time in a 

reconsideration request, after the agency has issued its 

adjudication, cannot be regarded as raising the issues while 

the matter was before the agency.’); Ramsey v. P[a.] Milk 

M[ktg.] B[d.], . . . 572 A.2d 21, 25 ([Pa. Cmwlth.] 1990); 

Frankford Hosp[.] v. Dep[’t] of Pub[.] Welfare, . . . 466 

A.2d 260, 262 ([Pa. Cmwlth.] 1983); see also Rabatin v. 

Allied Glove Corp[.], . . . 24 A.3d 388, 391 ([Pa. Super.]

2011) (‘While the issue was included in the subsequently 

filed motion for reconsideration, issues raised in motions 

for reconsideration are beyond the jurisdiction of this Court 

and thus may not be considered by this Court on appeal.’).

Lin v. Bd. of Revision of Taxes of the City of Phila., 137 A.3d 637, 643 (Pa. Cmwlth. 

2016) (emphasis added). 

In the instant action, DY did not appear at the December 20, 2018 trial 

court hearing. Had it done so, it could have opposed the City’s requested fines as 

excessive. “Issues not raised at the earliest possible time during a proceeding are 

waived.” Grever v. Unemployment Comp. Bd. of Review, 989 A.2d 400, 402 (Pa. 

Cmwlth. 2010), superseded on other grounds by Pa.R.A.P. 1513(d), as recognized in

Morgan v. Unemployment Comp. Bd. of Review, 108 A.3d 181 (Pa. Cmwlth. 2015). 
8

Because DY failed to appear at the hearing and challenge the City’s request for the 

$243,200.00 fine as constitutionally excessive, DY did not raise the issue “at the 

earliest possible time during [the] proceeding[.]” Id. Accordingly, because DY 

raised the issue for the first time in the Reconsideration Motion, it was not preserved 

for appellate review, and this Court may not now address it.12 

 

12 Even if DY had not waived the excessive fines argument, this Court would find that the 

fines were constitutional. The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed . . . .” U.S. Const. amend. VIII.

The Pennsylvania Constitution similarly provides: “Excessive bail shall not be required, nor 

excessive fines imposed . . . .” Pa. Const. art. I, § 13. A fine is excessive “if it is grossly 

disproportional to the gravity of a defendant’s offense.” U.S. v. Bajakajian, 524 U.S. 321, 334 

(1998). The Pennsylvania Supreme Court has explained:

[T]he 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)). Thus, 

a fine must be “reasonably proportionate to the crimes which occasion them.” Eisenberg, 98 A.3d 

at 1287. However, “[the Pennsylvania Supreme Court] and the Commonwealth 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.

In Eisenberg, the Court found that the $75,000.00 fine imposed for a misdemeanor theft of 

$200.00 was constitutionally excessive. Id. at 1287. Citing to Church and two Commonwealth 

Court cases, Eckhart v. Department of Agriculture, 8 A.3d 401 (Pa. Cmwlth. 2010), and 

Commonwealth v. CSX Transportation, Inc., 653 A.2d 1327 (Pa. Cmwlth. 1995), the Eisenberg

Court distinguished the fines imposed therein, explaining:

In Church, overweight vehicles were fined on a sliding scale per 

pound over the weight limit. In Eckhart, the appellant kennel 

operator had committed numerous infractions incurring a fine amount 

in excess of $150,000[.00] based on a $100[.00]-$500[.00] per 

dog/per day penalty scheme, $15,000[.00] of which appellant 

claimed was excessive in light of perceived triviality of the offense. 

In CSX, the appellant’s train car leaked enough corn syrup into the 

Youghiogheny River to kill approximately 10,000 fish, and thus 

appellant incurred a roughly $100,000[.00] fine, based on a $10[.00]

per fish calculation.

Eisenberg, 98 A.3d at 1287 n.24. 
9

DY contends that the trial court abused its discretion by granting the 

injunction13 and imposing the fine. Since DY’s abuse of discretion argument pertains 

to the trial court’s decision and could not have been raised until after the trial court 

rendered it, that argument was not waived. 

This Court has ruled that “[a] trial court abuses its discretion if, in 

reaching a conclusion, the law is overridden or misapplied or judgment exercised is 

manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will. An 

abuse of discretion is not merely an error of judgment.” In re Ten Thousand Six 

Hundred Eighty Dollars, 728 A.2d 403, 406 (Pa. Cmwlth. 1999) (citation omitted).

Section A-601 of the Code specifies penalties for Code violations. 

When the City filed its Complaint, Section A-601.1 of the Code provided for basic 

fines ranging between $150.00 and $300.00 for each offense. Sections 601.2 and 

601.3 of the Code describe violations constituting Class II and Class III offenses, and 

 

Here, the fines issued against DY were similarly imposed per day based upon repeated daily 

violations of numerous Code provisions. The violations pertained to potentially hazardous 

conditions on the Property 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. 

13 Although DY asserts in the Argument portion of its brief that “[t]here was an adequate 

remedy at law, and the issuance of the injunction and fine were an abuse of discretion,” DY’s

Statement of Questions Involved makes no reference to the propriety of the trial court’s grant of the 

injunction or whether the City had an adequate remedy at law. DY Br. at 10 (bold emphasis 

omitted, italic emphasis added). Rather, DY’s Statement of Questions Involved pertaining to the 

trial court’s purported abuse of discretion states: “Did the [trial court] abuse [its] discretion by 

imposing a fine of such magnitude, given that the underlying statute has a range, and that a permit 

was active, and [Adeleye] was present at the hearing?” DY Br. at 2. “Issues not included in the 

Statement of Questions [Involved] are waived and need not be considered by the Court even if they 

are addressed in the argument section of the brief.” Kalmeyer v. Mun. of Penn Hills, 197 A.3d 

1275, 1279 n.1 (Pa. Cmwlth. 2018) (emphasis added); see also Pa.R.A.P. 2116(a) (“No question 

will be considered unless it is stated in the [S]tatement of [Q]uestions [I]nvolved or is fairly 

suggested thereby.”). Accordingly, that argument is waived. 

This Court notes that because the trial court’s opinion issued pursuant to Pennsylvania Rule 

of Appellate Procedure 1925(a), Pa.R.A.P. 1925(a), relied on DY’s Statement of Questions 

Involved, it did not discuss the basis for the trial court’s grant of the permanent injunction. 
10

mandate that such violations shall be “subject to the maximum fine set forth in 

subsection[s]” 1-109(2) and 109(3) [of the Code], respectively. Phila., Pa., Code 

§§ A-601.2, A-601.3 (emphasis added). Section A-601.4 of the Code further states: 

“Each day that a violation continues after issuance of a notice or order shall be 

deemed a separate offense.” Phila., Pa., Code § A-601.4. Section 109(2) of the Code 

provides for a maximum $1,000.00 fine for each Class II offense committed on or 

after January 1, 2006. 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.

Here, the evidence before the trial court established that, from April 13, 

2018 to December 20, 2018, the Department attempted numerous times to require DY 

to remediate its violations, which included an inoperable fire suppression system and 

accumulations of combustible material. Despite the issuance of the April Violation 

Notice, DY permitted Adeleye to occupy the Property. Even after the Department 

issued the May Violation Notice, and in July, subsequently posted the Cease 

Operations Order notice, Adeleye continued to operate the auto repair business at the 

Property, such that Raudenbush (who, by happenstance, observed the business still 

operating) was forced to order those present to vacate the Property.

Because DY did not appeal from the April Violation Notice or the May 

Violation Notice14 or answer the Complaint, all of the City’s allegations against DY

 

14 DY argues that, since Adeleye was responsible for some of the violations of use, he

should have been granted standing at the hearing. DY further contends that the imposition of the 

fines is unfair since Adeleye’s violations were included in DY’s fines. However, the fines were 

issued resulting from the unappealed April Violation Notice and May Violation Notice. Had DY

appealed from those notices, it could have argued that Adeleye, rather than DY was responsible. It 

did not do so. Further, Section A-105.2 the Code, cited by DY, provides: 

If an occupant of a structure creates conditions in violation of this 

[C]ode or the technical codes, by virtue of any improper use of the 

premises or by virtue of storage, handling and use of substances, 

materials, devices and appliances, the occupant shall be responsible 

for the abatement of said hazardous condition.
11

were deemed admitted. See Reproduced Record at 92a. Thus, it is undisputed that 

DY violated the Code. Moreover, the trial court imposed fines in accordance with the 

aforementioned Code sections. Although this Court agrees that the trial court’s fine 

was significant, the fine was the direct result of DY’s ongoing violations and failure 

to remediate. This Court discerns no abuse of discretion.

15

 

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge

 

Phila., Pa., Code § A-105.2 (emphasis added). Notably, since the violations described in the April 

Violation Notice and the May Violation Notice pertained to conditions that were documented prior 

to Adeleye’s occupancy, Adeleye did not “create[ the violative] conditions.” Id.

15 In its brief, DY argues that this Court should “reverse and vacate the [trial court’s 

December 20, 2018 order] . . . and remand to the [trial court] with instructions on how to proceed.” 

DY Br. at 19. DY also asserts that the trial court’s opinion reveals “partiality and bias sufficient 

that[,] on remand, a new judge [should] be assigned[.]” Id. at 3. Since this Court herein affirms the 

trial court’s decision, this Court denies DY’s request. Notwithstanding, we note that “[a] motion for 

recusal must be raised in the first instance with the trial court, who must always be given the 

opportunity to act on the request in the first instance.” Brannam v. Reedy, 906 A.2d 635, 642 (Pa. 

Cmwlth. 2006). There is nothing in the record reflecting that DY has ever moved the trial court 

judge for recusal, nor does DY assert in its brief that it did so. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. :

:

DY Properties, LLC, : No. 132 C.D. 2019

Appellant :

O R D E R

AND NOW, this 12th day of December, 2019, the Philadelphia County 

Common Pleas Court’s December 20, 2018 order is affirmed. 

___________________________

ANNE E. COVEY, Judge