IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 515 C.D. 2019

: SUBMITTED: June 9, 2020

RB Parking, LLC, :

Appellant :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge (P.)

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: July 16, 2020

RB Parking, LLC, (RB) appeals from an order of the Court of Common 

Pleas of Philadelphia County that entered judgment against RB in the amount of 

$90,000 for failure to comply with the requirements in The Philadelphia Code of 

General Ordinances (Philadelphia Code) to obtain the necessary permits for 

structural work and interior renovation and to submit construction documents and 

plans regarding the nature and extent of its work. We affirm.

The background of this matter is as follows. At a 2012 sheriff’s sale, 

RB bought the subject property at 5438 Spruce Street in the Cobbs Creek 

neighborhood of the City of Philadelphia. (Mar. 12, 2019 Hearing, Notes of 

Testimony “N.T.” at 16; Reproduced Record “R.R.” at 72a.) Subsequently, RB 

commenced work on the property without applying for the necessary permits. (Trial 

Court’s Aug. 15, 2019 Op. at 5.)

In April 2017, the City issued an initial notice of violation for three 

Class I violations of the Philadelphia Code: (1) failure to apply for a building permit 
2

for structural work in the rear of the property; (2) failure to apply for a building 

permit for altering, modifying, repairing or improving the interior of the property; 

and (3) failure to submit construction documents and/or plans to the City’s 

Department of Licenses and Inspections (Department) indicating the precise 

location, nature, and extent of work. Phila. Code §§ A-301.1.1(3) and A-301.6. In 

the notice, the City directed RB to correct the three violations before the May 8, 

2017 reinspection date. Additionally, the City advised RB of the thirty-day appeal 

period, the imposition of fines in the range of $150 to $2000 per violation for each 

day the violation remained uncorrected, and the possibility of the City’s filing a legal 

action to obtain compliance. (Mar. 12, 2019 Hearing, City’s Ex. No. 1, Apr. 3, 2017 

Initial Notice of Violation at 1-2; R.R. at 79a-80a.)

Following the City’s reinspection of the property, the City advised RB 

that fines would be imposed from April 3, 2017, that certain licenses and permits 

could be suspended or revoked, and that the City could file a legal action to obtain 

compliance, an injunction, and the imposition of fees and fines. (Id., City’s Ex. No. 

2, May 9, 2017 Final Warning at 1-2; R.R. at 81a-82a.) Consequently, when RB 

failed to appeal or bring the property into compliance with the Philadelphia Code, 

the City filed an equity complaint with the trial court seeking an injunction, RB’s 

compliance, and statutory fines. (Mar. 15, 2018 Complaint; R.R. at 22a-39a.) 

Several days later, the trial court granted the City’s rule to show cause why the 

requested relief should not be granted and set a hearing date for May 10, 2018. (Trial 

Court Docket Report at 5; R.R. at 5a.) However, no one appeared on behalf of RB 

at hearings scheduled for May and August 2018.

In October 2018, the City filed notice of its intention to take a default 

judgment. When RB failed to respond to the notice, the City praeciped for default 
3

judgment therein advising that a hearing for the assessment of damages was 

scheduled for October 25, 2018. (Oct. 22, 2018 Praecipe for Default Judgment; R.R. 

at 41a.) Although an agent for RB, Yosef Meir, finally appeared at the October 2018 

hearing, the trial court continued the matter for the corporate entity to obtain counsel. 

Notably, the City was prepared to proceed with one of its building inspectors. (Oct.

25, 2018 Hearing, N.T. at 3; Supplemental Reproduced Record “S.R.R.” at 10b.) At 

the subsequent December 2018 hearing, counsel for RB advised that RB had sold 

the property to Noah Property Investment (Noah) in May 2018.1 Once again, the 

trial court continued the matter.

In March 2019, the trial court held a hearing at which time the City 

presented evidence and testimony from building inspector Robert Fillmeyer and 

Yosef Meir testified on behalf of RB. Mr. Fillmeyer confirmed that the City issued 

both initial and final warning notices of violation to RB in April and May 2017 and 

those notices were submitted into evidence. He testified that from the time the City 

issued the three notices of violations in April 2017 until RB sold the property in May 

2018, RB failed to appeal the notices, failed to apply for the necessary permits, and 

failed to bring the property into compliance. (Mar. 12, 2019 Hearing, N.T. at 8; R.R. 

at 70a.)

Mr. Meir acknowledged that he bought the property with the intention 

of doing minimal repairs and flipping it before getting into major repairs. (N.T. at 

19-20; R.R. at 73a.) To that end, he sought a buyer once the City got involved. Mr. 

Meir did not dispute the Philadelphia Code violations or his failure act but asked the 

 

1

In January 2019, the City filed a praecipe for rule to show cause why successor Noah should 

not be substituted as a party. (Jan. 14, 2019 Praecipe for Rule to Show Cause at 1-8; R.R. at 51a58a.) The trial court entered an order granting the rule with a return date of February 26, 2019. 

(Trial Court’s Jan. 15, 2019 Order at 1; R.R. at 59a.) Subsequently, the City filed a praecipe to 

discontinue. (Jan. 14, 2020 Praecipe to Discontinue at 1; S.R.R. at 1b.)
4

trial court for leniency given the circumstances. (N.T. at 24; R.R. at 74a.) As 

counsel for RB summarized, “it’s not necessarily that [Mr. Meir’s] telling the Court 

he’s not responsible, he’s asking the Court to consider the fact that his intention was 

just to flip it.” (N.T. at 20; R.R. at 73a.) Additionally, counsel for RB indicated that 

he would be representing new owner Noah subsequent to the trial court’s entry of an 

order against RB.

2

The trial court observed that the question was not whether it should 

impose a fine but in what amount. (N.T. at 23; R.R. at 74a.) In determining an 

appropriate fine, it took into consideration the length of RB’s ownership and Mr. 

Meir’s failure to acknowledge or address the violations. (N.T. at 6; R.R. at 70a.) 

Additionally, the trial court opined that Mr. Meir could not use the fact that he bought 

the property at a sheriff’s sale as a defense for abdicating his responsibility for the 

violations during his time of ownership. As the trial court observed: “If you buy a 

property in the City of Philadelphia, you assume [the] responsibility of the property 

owner. You are responsible for ensuring and maintaining that property is in 

compliance with the [C]ode. That wasn’t done here and once it’s brought to your 

 

2 The pertinent colloquy at the hearing provided:

Mr. Greenspon [counsel for the City]: One additional thing we 

need to address, subsequent to this order against [RB], the successor 

of interest which is Noah . . . – Mr. Lambert [RB’s former counsel] 

has agreed he will be representing Noah . . . , so the City would be 

asking that the case against Noah . . . be continued.

Mr. Lambert: I think we can resolve this before we have to come 

back, so we don’t have to go through this again.

The Court: Okay. I think 60 days is sufficient and we’ll see where 

you are in 60 days with Noah . . . . We’ll give this a date of 5/21 

[2019].

(N.T. at 26-27; R.R. at 75a.)
5

attention, you have the ultimate responsibility . . . .” (N.T. at 25; R.R. at 75a.) 

Moreover, the trial court noted that the City already had unilaterally lowered the 

amount of the fine that it was requesting to $119,400, approximately a third of the 

amount to which it was entitled. (N.T. at 22-23; R.R. at 74a.) Accordingly, even 

though the fine could have been in excess of $360,000 for RB’s 398 days of 

noncompliance during its ownership, the trial court imposed a $90,000 fine. (N.T. 

at 25-26; R.R. at 75a.)

Subsequently, RB procured new counsel and filed a motion for 

reconsideration. In that motion, RB raised two new issues: whether the fine was 

unconstitutionally excessive under the Eighth Amendment to the United States 

Constitution and Article I, Section 13 of the Pennsylvania Constitution3 and whether 

the trial court lacked jurisdiction because its adjudication impermissibly mixed 

criminal law and equity. The trial court denied RB’s motion.

In April 2019, RB appealed to Commonwealth Court.4 RB raises three 

issues for our review: (1) whether the alleged conflict of interest of RB’s former 

counsel by virtue of representing both RB and Noah precludes a determination of 

waiver as to any issues not raised at the March 2019 hearing; (2) whether the fine 

imposed is grossly excessive in violation of the United States and Pennsylvania 

Constitutions given the value of the property and the circumstances of the violations; 

and (3) whether the City’s Code enforcement actions impermissibly mix criminal 

 

3 U.S. CONST. amend. VIII; Pa. CONST. art. I, § 13.

4

In September 2019, judgment was entered against RB in the amount of $90,000 

commensurate with the trial court’s March 12, 2019 order. (Trial Court Docket Report at 21, R.R. 

at 21a.)
6

law and equity such that the trial court lacked subject matter jurisdiction to render a 

judgment.

5

I

We turn first to RB’s waiver issue. In that segment of RB’s brief to this 

Court devoted to waiver, RB did not properly develop its argument with the requisite 

specificity and citation to relevant authority. See Wirth v. Com., 95 A.3d 822, 837 

(Pa. 2014) (failure to develop argument in brief constitutes waiver of issue).

Specifically, RB does not identify what issues it believes have been held to be 

waived or why it anticipates that this Court may consider some unidentified issue to 

be waived. Presumably, RB refers to the argument that the fine imposed was 

unconstitutionally excessive because RB acknowledges that it did not raise this issue 

before the trial court. (Questions of subject matter jurisdiction cannot be waived.6) 

At all events, RB’s present counsel asserts that former counsel’s alleged conflict of 

interest by virtue of representing both RB and Noah constitutes an impermissible 

conflict under the Rules of Professional Conduct and a procedural irregularity such 

that this Court is precluded from concluding that RB waived any issues below. As 

RB’s present counsel maintains: “No waiver can be held from an incomplete 

injunction hearing at which a lawyer with an inherent conflict of interest is 

representing both parties . . . .” (RB’s Brief at 4.)

 

5

Issues as to whether a fine is unconstitutionally excessive and whether the trial court lacked 

subject matter jurisdiction constitute questions of law. Accordingly, our standard of review with 

respect to those issues is plenary. Com. v. Eisenberg, 98 A.3d 1268, 1279 (Pa. 2014) (excessive 

fine); Beneficial Consumer Disc. Co. v. Vukman, 77 A.3d 547, 550 (Pa. 2013) (subject matter 

jurisdiction).

6 Blackwell v. State Ethics Comm’n, 567 A.2d 630, 636 (Pa. 1989).
7

It is noteworthy that RB failed to raise a conflict-of-interest issue in its 

motion for reconsideration and brief in support, which its present counsel prepared.7 

(Motion for Reconsideration and Brief; R.R. at 96a-100a.) RB also failed to raise 

the issue in its statement filed pursuant to Pennsylvania Rule of Appellate Procedure 

Rule 1925(b).

8

 Moreover, we are not persuaded that RB was prejudiced by any real 

or apparent conflict of interest on the part of its attorney. The March 2019 hearing 

which RB now contends constituted an impermissible conflict of interest was limited 

to the amount of RB’s fine, not whether one should be imposed, and responsibility 

for the fine during RB’s ownership never shifted to the new owner. As the City 

observed, each owner was responsible for any violations during its respective period 

of ownership. See Phila. Code § A-105.1 (owner responsible for Code compliance). 

To that end, the trial court emphasized that it was limiting the fine against RB to the 

period of its ownership and considering that “[t]he violations were never corrected 

during the period of time [Mr. Meir] owned the property, even to the day he sold the 

property.” (Trial Court’s Op. at 5.) Thus, the amount of RB’s fine could have no 

impact on Noah. Similarly, it is not clear how counsel’s raising the constitutional 

issue on behalf of RB would have any impact on Noah.

Nevertheless, the trial court did not deem the constitutional issue 

waived, but rather addressed the merits of both the excessive fine and subject matter 

 

7

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

and must raise the issue [i]n 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 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)].

8 A party’s failure to raise an issue in its Rule 1925(b) statement results in waiver. Lang v. 

Dep’t of Transp., 13 A.3d 1043, 1049 (Pa. Cmwlth. 2011).
8

jurisdiction issues in its opinion filed pursuant to Rule 1925(a), so we, likewise, will 

address the issue. We find no error in the trial court’s reasoning.

II

RB argues that the $90,000 fine was grossly disproportionate to the 

offense and, therefore, unconstitutional, referencing the purported arms-length sale

price of $25,000 to Noah.

9 The law provides that excessive fines shall not be 

imposed. U.S. CONST. amend. VIII; 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). As our Pennsylvania Supreme Court stated:

[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.

Com. v. Eisenberg, 98 A.3d 1268, 1283 (Pa. 2014) (citation omitted). In the present 

case, the City explained how it calculated the amount of the fine that it was 

requesting:

Mr. Greenspon: So what the Code permits, Your Honor, 

is each one of the violations carries a daily penalty of 

 

9

In its motion for reconsideration, RB alleged that the fine was unconstitutionally excessive 

given the $21,000 purchase price at the sheriff’s sale, $108,300 assessed value, and $26,437 sale 

price to Noah. (Motion for Reconsideration at 2; R.R. at 95a.) Additionally, here, RB seeks a 

remand, maintaining that there are crucial pieces of evidence that the trial court did not take into 

consideration such as the date of the photographs that the City submitted into evidence, the actual 

value of the property, and RB’s ability to pay a fine. (RB’s Brief at 7-8.) No such evidence was 

offered, let alone excluded, at the hearing and it is far too late now to raise such issues for the first 

time.
9

$150.00 to $300.00 per day. The Court can take judicial 

notice from April 3, 2017 to May 7, 2018, is 398 days. 

What the City in determining what would be reasonable is 

to ask for $300.00 for each of those days with total 

statutory fine amount of $119,400.

(N.T. at 23; R.R. at 74a.) In explaining the reasonableness of the request, counsel 

for the City reiterated that “there’s 3 site violations and each one could carry $300.00 

a day, so we could actually multiply that total amount by 3, but what the City is 

requesting today is that just one of those site violations be calculated by $300.00 a 

day for the total 398 days.” (N.T. at 23-24; R.R. at 74a.)

Ultimately, the trial court exercised leniency in determining the amount 

of the fine, limiting it to the period of RB’s ownership and imposing an amount even 

less than the City requested and what the Philadelphia Code allows. Nonetheless, 

the trial court was mindful that the fine pertained to conditions on the property that 

RB failed to address and/or correct for over a year, despite the City’s demands. 

Additionally, the $90,000 fine imposed was per day based upon repeated and daily 

violations of the Philadelphia Code. As the trial court opined, RB’s “willful neglect 

[was] dangerous to the surrounding community members, surrounding buildings, 

and emergency workers.” (Trial Court’s Op. at 5.)

The trial court’s decision to impose a $90,000 fine against RB is 

consistent with analogous case law. In another case involving Mr. Meir, this Court 

determined that he waived an excessive fine argument but that, in the alternative, the 

$243,200 fine was not unconstitutionally excessive. City of Phila. v. DY Properties, 

LLC, 223 A.3d 717 (Pa. Cmwlth. 2019), petition for allowance of appeal denied

(Pa., No. 20 EAL 2020, filed June 25, 2020). In so determining, we observed:

Here, the fines issued against DY were . . . imposed per 

day based upon repeated daily violations of numerous 
10

[Philadelphia] 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.

Id. at 723 n.12 (emphasis added). See also City of Phila. v. Matos (Pa. Cmwlth., No. 

1391 C.D. 2018, filed Dec. 12, 2019), petition for allowance of appeal denied (Pa., 

No. 22 EAL 2020, filed June 15, 2020) (concluding that excessive fine issue was 

waived but that Court would have concluded that $64,950 fine was not 

unconstitutionally excessive in light of repeated daily violations of numerous 

Philadelphia Code conditions that Matos failed to address for over one year despite 

City demands to remediate); City of Phila. v. Philly Acquisitions, LLC (Pa. Cmwlth., 

No. 50 C.D. 2019, filed Dec. 12, 2019) (concluding that excessive fine issue was 

waived but that trial court did not abuse discretion in imposing a second $15,000 

fine given landowner’s multiple failures to comply with the Department’s notice, the 

trial court’s orders directing remediation of Philadelphia Code violations, and the 

fines allowable under the Code).10

As this Court recently noted:

The value of the Property is not a consideration of the trial 

court in considering fines for violations of the 

[Philadelphia] Code. See [Borough of Kennett Square v. 

Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth. 1994)]. In the trial 

court’s Opinion, the trial court noted that the Code set 

parameters “in order to protect the public.” (1925(a) 

Opinion at 6.) See Phila. Code § B-101.3 (“The purpose 

of this [C]ode is to establish the minimum requirements to 

 

10 Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported 

decisions are not binding precedent but may be cited for persuasive value. 210 Pa. Code § 

69.414(a).
11

provide a reasonable level of safety, public health and 

general welfare . . . .”). The trial court further noted that 

it determined that the fine was “fair and just due to the time 

period that the [P]roperty remained noncompliant.” 

(1925(a) Opinion at 5.)

City of Phila. v. Okamoto (Pa. Cmwlth., No. 51 C.D. 2019, filed Apr. 29, 2020), slip 

op. at 11-12. The same holds true here. Accordingly, we conclude that the $90,000 

fine imposed in the present case was not unconstitutionally excessive given what the 

trial court characterized as RB’s willful neglect as a property owner and the blatant 

failure to exhaust administrative remedies.

III

Finally, RB contends that the trial court lacked subject matter 

jurisdiction to rule on the instant Code enforcement action due to what it 

characterizes as an impermissible mix of equity and criminal law involved in

imposing fines under the Philadelphia Code. Specifically, RB maintains that the 

trial court acting as a court in equity lacked jurisdiction to order fines under the Code 

because its penalty provisions are criminal statutes that must be decided by a 

magisterial district judge.

RB’s subject matter jurisdiction argument is without merit. In City of 

Philadelphia v. Shih Tai Pien, 224 A.3d 71 (Pa. Cmwlth. 2019), petition for 

allowance of appeal denied (Pa., No. 37 EAL 2020, filed June 15, 2020),11 the 

Department issued an initial notice of violation to Pien for alleged violations of 

Section A-701.1 of the Philadelphia Building, Construction, and Occupancy Code 

(Administrative Code) and Sections F-901.6 and F-915.1 of the Philadelphia Fire 

Code. Pursuant to the Administrative and Philadelphia Codes, violators of those 

 

11 Pien’s petition for allowance of appeal to our Supreme Court did not include an issue as to 

subject matter jurisdiction and any alleged impermissible mix of equity and criminal law.
12

sections are subject only to fines without the possibility of imprisonment. See

Administrative Code §§ A-601.1-601.3; Phila. Code §§ 1-109(1)-1.109(3). We held 

that the trial court had subject matter jurisdiction both to enforce the ordinances at 

issue and to grant an injunction against Pien. In support, we observed: “Because 

the ordinances that Pien was found to have violated do not provide for imprisonment, 

such ordinances are civil, rather than criminal in nature. In other words, in municipal 

enforcement actions where imprisonment is not a remedy for a conviction or failure 

to pay a fine, the Pennsylvania Rules of Civil Procedure apply.” Pien, 224 A.3d at 

85.

In the present case, neither of the Philadelphia Code violations at issue, 

Sections A-301.1.1(3) and A-301.6, calls for imprisonment. In other words, the 

penalties are civil, not criminal. See Phila. Code §§ A-601 and 1-109. Accordingly, 

the trial court had subject matter jurisdiction.

IV

Accordingly, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge

Judge Cohn Jubelirer did not participate in the decision on this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia :

:

v. : No. 515 C.D. 2019

:

RB Parking, LLC, :

Appellant :

O R D E R

AND NOW, this 16th day of July, 2020, the order of the Court of 

Common Pleas of Philadelphia County is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Senior Judge