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HomeMy WebLinkAboutCP-21-SA-0000137-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : JOSEPH M. PADAMONSKY : CP-21-SA-0137-2011 IN RE: SUMMARY APPEAL BEFORE HESS, P.J. MEMORANDUM AND VERDICT Before the Court is Defendant’s appeal of his summary conviction by a Magisterial District Judge finding him to be in violation Chapter 10, Part 2, Section 10-207 of the Code of Ordinances of the Borough of Lemoyne. Specifically, Defendant appeals his summary conviction on a citation received by him on October 4, 2010 for maintaining his residential property in a manner or condition within the Borough of Lemoyne which constituted a nuisance or menace to public health. A de novo hearing was held and the following facts were adduced. Defendant is Joseph M. Padamonsky, a resident of 534 Bosler Avenue, Lemoyne, Pennsylvania 17043. (Notes of Testimony, 24, Hearing, Nov. 29, 2011 (hereinafter N.T. __)). On October 4, 2010, John Paden, Code Enforcement Officer for the Borough of Lemoyne, issued citation number P8427642-6 to Defendant for a violation of §10-207 of the Code of Ordinances of the Borough of Lemoyne, entitled Nuisances or Menaces to Public Health. (N.T. 12-15). Section 10-207 of the Code of Ordinances provides as follows: §10-207. Nuisances or Menaces to Public Health Unlawful It shall be unlawful to maintain any condition or place in the Borough of Lemoyne which constitutes a nuisance or a menace to public health. (Section 10-207 of the Code of Ordinances, Commonwealth Ex. 2, admitted Nov. 29, 2011). At the hearing, Michael Cassidy, solicitor for the Borough of Lemoyne, testified on behalf of the Commonwealth during its case-in-chief. (N.T. 4). He testified that, on July 9, 2009, the Lemoyne Borough Council heard and approved a motion to appoint John L. Paden to the position of code enforcement officer for the Borough of Lemoyne. (N.T. 5-6) (Commonwealth Ex. 6, admitted Nov. 29, 2011). Additionally, Cassidy testified as to the duties and responsibilities of a code enforcement officer; he explained that Paden was charged with the task of enforcing the entirety of the Code of Ordinances of the Borough of Lemoyne. (N.T. 6-7). With regard specifically to the Ordinance at issue herein, Cassidy testified as follows, “. . .Mr. Paden, in his capacity as a code enforcement officer, is directed by [the] council to enforce Section 10-207 dealing with nuisances and other menaces to public health.” (N.T. 6-7). John Paden also testified on behalf of the Commonwealth during its case-in-chief. Specifically, Paden testified that he first became aware of the condition of Defendant’s residential property in July of 2010 when he received a complaint letter from a resident of the Borough of Lemoyne. (N.T. 12-13) (Commonwealth Ex. 1, admitted Nov. 29, 2011). The letter informed Paden that Defendant’s front and back yards were in a significant state of disrepair, cluttered by what Paden characterized as “junk.” (N.T. 15). Upon receipt of the letter, Paden examined Defendant’s property and determined that the property was indeed in violation of §10- 207. (N.T. 14). Paden testified that Defendant’s home is a single detached residence in a heavily populated residential area. (N.T. 15). Photographs taken of Defendant’s property, both before and after the date of the issuance of the citation, were admitted as exhibits at the hearing, and Paden testified to their accuracy as of the date he issued citation P8427642-6 to Defendant. (N.T. 17). The photographs depict Defendant’s front and back yards as being filled with more 2 than one inoperable vehicle; a white fuel storage tank containing cooking oil for deep fryers; numerous propane tanks; automobile parts; various other tanks; tires for vehicles that have been stacked up, some without rims; a shed with a door that cannot be closed because various items spill out of the doorway; open fifty-five gallon drums in which water is free to collect; storage tanks; rebar; piles of lumber; gas cans; and another rack of tires. (N.T. 15-17) (Commonwealth Ex. 3, 4, admitted Nov. 29, 2011). Additional photographs depict a grease machine; numerous bicycles; a collection of cabinets; piles of rebar and wood material directly adjacent to the property line; and more trash cans and storage tanks. (N.T. 18) (Commonwealth Ex. 5, admitted Nov. 29, 2011). Paden testified that the photographs accurately reflected the condition of Defendant’s property on the date the citation was issued. (N.T. 18). Additionally, Defendant did not dispute the accuracy of the photographs as they depicted the condition of his property on the date of October 4, 2010. (N.T. 25). Paden also testified to the health and safety issues posed by the condition of Defendant’s property. (N.T. 18). Paden explained that the propane tanks are a fire hazard in such a heavily populated residential area; and the open fifty-five gallon drums, five gallon pails setting upright, and the tires not mounted on rims, all given to the collection of rain water, could, in turn, cause the production of West Nile Virus. (N.T. 18-19). Additionally, the accumulation of such a large quantity of scrap and other odds and ends is highly conducive to the creation of a habitat for groundhogs, skunks, and other unwanted pests. (N.T. 19). Paden also testified that Defendant’s property emitted the unpleasant odors of vehicle fluids and engine oils. (N.T. 19). Based on the entirety of his observations, Paden thereby concluded that the condition of Defendant’s front and back yards constituted a nuisance and a menace to public health within the meaning of §10-207 of the Code of Ordinances of the Borough of Lemoyne. (N.T. 19). As a result, Paden notified 3 Defendant of the unacceptable condition of his property, granted Defendant a reasonable amount of time to rectify the ordinance violation, and, after neglect and refusal, issued Defendant citation number P8427642-6 for a violation of §10-207 of the Code of Ordinances of the Borough of Lemoyne, entitled Nuisances or Menaces to Public Health. Political subdivisions, such as boroughs, possess only those powers that are expressly and statutorily granted thereto. Guthrie v. Borough of Wilkinsburg, 508 Pa. 590, 499 A.2d 570 (1985). Section 46202(5) of the Borough Code, 53 P.S. § 46202(5), grants the authority to boroughs within the Commonwealth to “prohibit and remove any nuisance, including but not limited to accumulations of garbage and rubbish and the storage of abandoned or junked automobiles and to prohibit and remove any dangerous structure on public or private grounds, or to require the removal of any such nuisance or dangerous structure by the owner or occupier of such grounds. . . .” As a result, the Borough of Lemoyne possesses the statutory authority to regulate nuisances, as it has chosen to do in §10-207 of its Code of Ordinances. The definition of a public nuisance contained within § 821(B) of the Restatement (Second) has been adopted in Pennsylvania and provides as follows: (1) A public nuisance is an unreasonable interference with a right common to the general public. (2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. 4 Duquesne Light Co. v. Pennsylvania American Water Co., 2004 PA Super 160, ¶ 16, 850 A.2d 701, 706 (citing Restatement (Second) of Torts § 821(B)). Generally, claims of public nuisance are redressed by an action in the name of a governing body or an officer thereof as its authorized representative. Pennsylvania Society For Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 428 Pa. 350, 237 A.2d 342 (1968). The term “nuisance” has long been understood to contemplate the “unreasonable use by one person of his personal or real property such as to create an interference with the activities or pursuits of another.” Diess v. Pennsylvania Dept. of Transp., 935 A.2d 895, 905 (Pa.Cmwlth. 2007) (citing Groff v. Borough of Sellersville, 12 Pa.Cmwlth. 315, 314 A.2d 328 (1974)). In Groff, supra, the Commonwealth Court considered the issue of whether a property and a building contained thereon were properly deemed to be a public nuisance and, therefore, whether a certain borough council had the authority to require its removal. Groff v. Borough of Sellersville, 12 Pa.Cmwlth. 315, 319, 314 A.2d 328, 330 (Pa.Cmwlth. 1974). In examining the issue, the Court applied the traditional understandings the term “nuisance,” and explained as follows: In legal phraseology, the term ‘nuisance’ is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working on obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. . . .” Kramer v. Pittsburgh Coal Company, 341 Pa. 379, 380-381, 19 A.2d 362, 363 (1941). ‘A public nuisance is an inconvenience or troublesome offense that annoys the whole community in general, and not merely some particular person, and produces no greater injury to one person than to another-acts that are against the well-being of the particular community-and is not dependent upon covenants. The difference between a public and a private nuisance does not depend upon the nature of the thing done but upon the question whether it affects the general public or merely some private individual or individuals. . . .’ Phillips v. Donaldson, 269 Pa. 244, 246, 112 A. 236, 238 (1920). 5 Groff, 12 Pa.Cmwlth. at 318, 314 A.2d at 330. With this traditional understanding of nuisance law in mind, the Commonwealth Court upheld a finding by the trial court that a depilated, deteriorating building, which found itself in a significant state of disrepair, and which contained broken and rotted boards, trash, papers, brush, old boxes, lumber, debris, barrels, and other combustible material did constitute a nuisance within the meaning of the ordinance examined therein. Id. at 320. Applying the forgoing, we find that the Commonwealth has established beyond a reasonable doubt that Defendant’s property constituted a nuisance, and, therefore, that Defendant’s residential property was in violation of §10-207 of the Code of Ordinances of the Borough of Lemoyne on the date he received citation number P8427642-6. As of October 4, 2010, the condition of Defendant’s front and back yards as previously described constituted an unreasonable and unwarrantable use of his residential property, as well as an inconvenience and troublesome offense that annoyed the whole community in general. Moreover, Defendant had been repeatedly warned by the code enforcement officer that his property was in violation of §10-207, he had been given ample time to rectify the violation, and, as of October 4, 2010, he had not done so. Lastly, we find no basis of support for Defendant’s contention that, because John Paden is a “code enforcement officer” rather than a “health officer,” he is without the authority to issue a citation for a violation of an ordinance contained under the “Health Officials” section of the Code of Ordinances of the Borough of Lemoyne. The solicitor for the Borough testified that Paden, as code enforcement officer, had been charged by the Borough Council with the authority to enforce the entirety of the code, including Section 10-207, dealing with nuisances and other menaces to public health. Additionally, it is axiomatic that a “code enforcement officer” has the 6 authority to issue a citation for a violation of any ordinance contained within that code, except as otherwise provided in the code. VERDICT th AND NOW, this 6 day of January, 2012, upon consideration of the defendant’s summary appeal, and following a hearing, held November 29, 2011, the defendant is found GUILTY. The sentence of the court is that the Defendant pay the costs of prosecution and a fine of $300.00. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Dougie E. Chon Certified Legal Intern John Dailey, Esquire Sr. Assistant District Attorney Joseph M. Padamonsky, Pro Se Defendant :rlm 7 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : : JOSEPH M. PADAMONSKY : CP-21-SA-0137-2011 IN RE: SUMMARY APPEAL BEFORE HESS, P.J. VERDICT th AND NOW, this 6 day of January, 2012, upon consideration of the defendant’s summary appeal, and following a hearing, held November 29, 2011, the defendant is found GUILTY. The sentence of the court is that the Defendant pay the costs of prosecution and a fine of $300.00. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Dougie E. Chon Certified Legal Intern John Dailey, Esquire Sr. Assistant District Attorney Joseph M. Padamonsky, Pro Se Defendant :rlm