IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Halpern and Elinor Halpern, :

:

Appellants :

: No. 647 C.D. 2016

v. : Submitted: April 20, 2017

: 

Housing Appeals Review Board of the :

City of Scranton :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE JOSEPH M. COSGROVE, Judge (P)

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE COLINS FILED: December 21, 2017

Samuel and Elinor Halpern appeal (collectively the Halperns) the 

March 18, 2016 order issued by the Court of Common Pleas of Lackawanna County 

(Trial Court), which stayed the demolition of 942-944 Clay Avenue in the City of 

Scranton (the Property) upon condition that the Halperns post a bond and obtain a 

certificate of occupancy by a date certain from the City of Scranton (City). The Trial 

Court’s order follows the Halperns’ petition for a rule to show cause and does not 

address the underlying December 15, 2014 decision of the City’s Housing Appeals 

Review Board (Board), which upheld the notice of demolition of the Property issued 

by the City’s Department of License, Inspection and Permits (LIP). For the reasons 

that follow, we quash the appeal of the Trial Court’s March 18, 2016 order and direct 

the Trial Court to issue a decision on the merits of the Halperns’ appeal of the 

Board’s decision.
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In 2006, the Halperns purchased the Property as an investment; the 

Halperns’ personal residence is located in West Hartford, Connecticut. The Property 

was condemned by LIP on September 15, 2008 with a handwritten “field correction 

notice” because it was vacant, the grass was overgrown, and there was debris in the 

rear of the Property. (September 15, 2008 LIP Notice, Reproduced Record (R.R.)

at 50a.) The code violations underlying the condemnation were stated in a 

subsequent letter to the Halperns as:

PM -108.1.3 Structure unfit for human occupancy: A 

structure is unfit for human occupancy whenever the code 

official finds that such structure is unsafe, unlawful or, 

because of the degree to which the structure is in disrepair 

or lacks maintenance, is unsanitary, vermin or rat infested, 

contains filth and contamination, or lacks ventilation, 

illumination, sanitary or heating facilities or other 

essential equipment required by this code, or because the 

location of the structure constitutes a hazard to the 

occupants of the structure or to the public.

TO WIT: This property was condemned as a 

vacant/abandoned structure.

PM -303.4. Weeds: All premises and exterior property 

shall be maintained free from weeds or plant growth in 

excess of 10 inches (254 mm). All noxious weeds shall be 

prohibited. Weeds shall be defined as all grasses, annual 

plants and vegetation, other than trees or shrubs provided, 

however, this term shall not include cultivated flowers and 

gardens.

TO WIT: This property was surrounded by high grass, and 

weeds.

PM -306.1 Accumulation of rubbish or garbage: All 

exterior property and premise, and the interior of every 
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structure shall be free from any accumulation of rubbish 

or garbage.

TO WIT: Remove all debris from exterior including 

appliances.

(September 17, 2008 LIP Letter to the Halperns, R.R. at 51a-52a.) The Halperns did 

not take action to lift and remove the condemnation. On February 10, 2014, LIP

issued a demolition order for the Property, which the Halperns appealed to the Board. 

(February 10, 2014 LIP Letter to the Halperns, R.R. at 73a.) On December 15, 2014, 

the Board issued a decision upholding the demolition order. (Board Decision and 

Order, R.R. at 62a-72a.) 

The Halperns appealed the Board’s order and filed an Emergency

Petition for Supersedeas in the Trial Court. A hearing was held on April 9, 2015. 

(Hearing Transcript I (H.T. I), R.R. at 202a-233a.) The Trial Court granted the 

Petition in an April 9, 2015 order and required the Halperns to file a $5,000 bond 

with the City of Scranton. On June 2, 2015, the Halperns, LIP and the Board reached 

an agreement whereby the Halperns would complete the necessary work to obtain a 

certificate of occupancy by December 31, 2015 or the supersedeas would be lifted 

and the bond would be forfeited to the City. (June 2, 2015 City Department of Law 

Letter to the Halperns, R.R. at 250a.) A certificate of occupancy was not obtained 

and LIP posted stop work orders on the Property on January 2, 2016. An agreement 

was reached with the City to allow work to continue until January 31, 2016, and on 

February 2, 2016 a second stop work order was posted on the Property. On March 

14, 2016, the Halperns filed a Rule to Show Cause why the stop work orders should 

not be removed. A second hearing was held before the Trial Court on March 17, 

2016. (Hearing Transcript II (H.T. II), R.R. at 260a-340a.) A contractor for the 

Halperns testified that no work was done on the Property between 2010 and 
4

November 2015 and the water meters were removed by the City during that time, 

but that he had been working on the Property since November 2015. (H.T. II at 17, 

22-24, R.R. at 276a, 280a-283a.) During the hearing, the City suggested giving the 

Halperns 60 days to complete the work necessary to obtain a certificate of 

occupancy, over the objection of both LIP and the Board. (H.T. II at 68-69, R.R. at 

327a-328a.) Following the hearing, the Trial Court issued the March 18, 2016 order 

providing that if the Halperns did not obtain a certificate of occupancy from the City 

by May 23, 2016, then the City could immediately demolish the Property. 

Before this Court is the Halperns’ appeal from the Trial Court’s March 

18, 2016 order. Procedurally, this order was issued as a continuation of the 

supersedeas; this is not an appeal of the Trial Court’s review of the Board’s decision. 

The Trial Court has not addressed the Halperns’ appeal of the Board’s decision 

outside of the context of the Emergency Petition for Supersedeas and there has been 

no review of the weighty constitutional, legal, and factual issues raised therein. 

While there is reference to the June 2, 2015 agreement to allow the Halperns to 

continue working on the Property as a “settlement,” this agreement did not settle the 

appeal and was never filed with the Trial Court, except as an evidentiary exhibit 

during the second hearing, and the actual appeal has not been withdrawn, 

discontinued or dismissed. Accordingly, the Trial Court should have determined 

whether the Halperns established: (1) that they are likely to prevail on the merits of 

the appeal; (2) that without the requested relief, they will suffer irreparable injury; 

(3) that a stay will not substantially harm other interested parties in the proceedings; 

and (4) that a stay will not adversely affect the public interest. Pennsylvania Public 

Utility Commission v. Process Gas Consumers Group, 467 A.2d 805, 808-09 (Pa. 

1983). However, application of the Process Gas standard is complicated in this 
5

matter because the merits of the appeal and the question of whether a stay would

adversely affect the public interest are inextricably intertwined. The interrelated 

nature of these two elements is reflected in the arguments presented to this Court by 

the parties. The Halperns argue, inter alia, that the City has violated the 

Pennsylvania and United States Constitutions by attempting to demolish a property 

that is structurally sound and not a hazard to the public and that the basis for the 

original condemnation order is insufficient to support demolition of the Property. 

The City argues that the Property is a public nuisance because it has remained 

uninhabited and unfinished, and because the Halperns have failed to take action to 

lift the condemnation order. 

Based on the record before this Court, the Trial Court did not err in 

issuing a stay of the Board’s order but the Trial Court did err in attaching conditions 

that would lift the stay prior to a determination on the merits of the appeal. However, 

because our Supreme Court has held that an order granting or denying a stay is a 

non-appealable interlocutory order, we must quash the Halperns’ appeal. 

Commonwealth v. Morris, 771 A.2d 721, 728-30 (Pa. 2001); Farmers First Bank v. 

Wagner, 687 A.2d 390, 391-92 (Pa. Super. 1997); Richardson Brands, Inc. v. 

Pennsylvania Dutch Co., 592 A.2d 77, 80 (Pa. Super. 1991); Grimme Combustion, 

Inc. v. Mergentime Corp., 560 A.2d 793, 794 (Pa. Super. 1989). 

Factually, there is no question that the Halperns purchased the Property 

over ten years ago and have been dilatory in both their interactions with LIP and 

their work on the Property to render it habitable. Yet, the record does not contain 

evidence or factual findings that support a conclusion that the Property is a danger 

to the public. The evidence shows that the Property is and has remained vacant since 

the Halperns purchased it and that the condition of the Property does not satisfy the 
6

standard necessary to obtain a certificate of occupancy. The evidence also shows a 

history of overgrowth and debris on the Property. However, there is no code, statute 

or common law supporting LIP’s authority under the police powers to demolish a 

Property because it is vacant and has or previously had overgrown weeds and debris 

in the surrounding yards. Moreover, the evidence relied upon by the Board regarding 

the condition of the Property was offered by the neighbors and concerned the exterior 

of the Property. While LIP offered testimony concerning the procedure followed to 

issue an order of condemnation and an order of demolition of the Property, LIP did 

not offer any testimony or evidence from a code official regarding the underlying 

substance of the condemnation and any danger posed to the public. 

Although not in effect at the time LIP issued the demolition order, the

Board argues that Section 1101.1 of the International Property Maintenance Code, 

2009 Edition, published by the International Code Council, adopted as the Property 

Maintenance Code of the City (PMC) by Ordinance No. 37 of 2014, provides 

authority to demolish the Property:

The code official shall order the owner of any premises 

upon which is located any structure, which in the code 

official judgment after review is so deteriorated or 

dilapidated or has become so out of repair as to be 

dangerous, unsafe, insanitary or otherwise unfit for human 

habitation or occupancy, and such that it is unreasonable 

to repair the structure, to demolish and remove such 

structure; or if such structure is capable of being made safe 

by repairs, to repair and make safe and sanitary, or to board 

up and hold for future repair or to demolish and remove at 

the owner’s option; or when there has been cessation of 

normal construction of any structure for a period of more 

than two years, the code official shall order the owner to 

demolish and remove such structure, or board up until the 

owner’s future repair. Boarding the building up for future 
7

repair shall not extend beyond one year, unless approved 

by the building official.

Section 1101.1 of the PMC.1 On its face, Section 1101.1 requires a determination 

by a code official that the danger posed by the structure is such that it is unreasonable 

to repair and, in the absence of such a determination, outlines steps that should be 

taken prior to demolition. There is no evidence that LIP took intervening steps prior 

to condemning the Property such as issuing violation notices or fines and, beyond 

maintaining the exterior of the Property, there was no identification of the repairs 

necessary to lift the condemnation. Following condemnation, there is no evidence 

that LIP made a determination regarding the danger posed by the Property or notified 

the Halperns of steps like those identified in Section 1101.1 of the PMC that they 

could take to prevent the house from being razed beyond simply requiring a 

certificate of occupancy. 

Exercise of the police powers to demolish private property is subject 

to strict scrutiny. The awesome exercise of this power should not be punitive; 

moreover, the remedy selected to abate the condition of the property should be the 

minimum necessary. City of Erie v. Stelmack, 780 A.2d 824, 827 (Pa. Cmwlth. 

2001). Given the lack of evidence suggesting the Property is a danger to the public, 

the public interest is best served by maintaining the stay and ensuring that the merits 

of the Halperns’ appeal are reviewed by a court of law applying the scrutiny required 

by the actions of LIP. However, the procedural posture of this matter does not place 

the determination of whether the stay was appropriate in our jurisdiction. 

Accordingly, we quash the appeal as an impermissible appeal from an interlocutory 

 

1

In its decision, the Board does not refer to Section 1101.1 of the PMC; instead, the Board’s 

decision focuses upon the criteria under the PMC to remove a condemnation and the Halperns’

failure to take the steps necessary to lift the condemnation. 
8

order and direct the Trial Court to issue a decision on the merits of the Halperns’ 

appeal from the Board’s decision. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Halpern and Elinor Halpern, :

:

Appellants :

: No. 647 C.D. 2016

v. : 

: 

Housing Appeals Review Board of the :

City of Scranton :

O R D E R

AND NOW, this 21st day of December, 2017, per the attached opinion, 

the March 18, 2016 order issued by the Court of Common Pleas of Lackawanna 

County in the above-captioned matter is QUASHED. 

__________ ___________________________

JAMES GARDNER COLINS, Senior Judge