                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Bolus,                            :
                   Appellant             :
                                         :   No. 202 C.D. 2018
             v.                          :
                                         :   Submitted: December 11, 2018
City of Scranton Department of           :
Licensing, Inspections and Permits;      :
and City of Scranton Housing             :
Appeals Review Board                     :



BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: May 2, 2019


             Robert Bolus appeals from the January 11, 2018 opinion and order of the
Court of Common Pleas of Lackawanna County (trial court) dismissing Bolus’s
appeal from the City of Scranton Housing Appeals Review Board (Board), which
upheld a notice of violation issued to Bolus by the City of Scranton Department of
Licensing, Inspections, and Permits (Department).


                           Facts and Procedural History
             By way of background, this matter began in January 2011 when the
Department issued Bolus a violation notice for illegally parked commercial/junk
trailers being used for storage on his property located at 1527 Birch Street, Scranton,
Pennsylvania (the Property) in an R1-A zone. Several months later, the Department
issued a second notice regarding the vehicles. Bolus filed an appeal with the zoning
hearing board (ZHB) and, after a public hearing was conducted, the ZHB voted
unanimously to deny Bolus’s appeal. Bolus filed an appeal with the trial court, but it
was dismissed for failure to file a brief in support of the appeal. (Board’s Findings of
Fact (F.F.) Nos. 1-8.)
              In September 2014, the Department issued another notice of violation
regarding the illegally parked junk/commercial trailers on the Property, which had
allegedly remained on the Property since 2011. The following month, 24 citations for
junk vehicles were filed against Bolus in the magisterial district court. The court held
a hearing at which both sides presented argument. The court directed Bolus to
remove the vehicles from the Property within two months. As a result of his failure
to comply with the court order, Bolus was found guilty of the citations. Bolus
appealed the summary criminal convictions to the trial court but his appeal was
dismissed for failure to comply with the Pennsylvania Rules of Criminal Procedure.
The trial court additionally ordered Bolus to remove the storage containers/trailers
from the Property by February 29, 2016.           (Board’s F.F. Nos. 9-15.)
              In October 2016, Patrick Hinton, Director of the Department, issued
Bolus a notice of violation (the Notice) for the Property alleging violations of the
Pennsylvania Uniform Construction Code (UCC), the regulations promulgated under
the Pennsylvania Construction Code Act;1 the International Property Maintenance
Code (IPMC); and FOC #155 of 1999.2 The Notice stated, in pertinent part,

       1
         In 1999, the General Assembly enacted the Pennsylvania Construction Code Act, Act of
November 10, 1999, P.L. 491, as amended, 35 P.S. §§7210.101-7210.1103, to insure uniform,
modern construction standards and regulations throughout the Commonwealth. Section 102 of the
Act, 35 P.S. §7210.102. The Construction Code Act applies generally to the construction, alteration,
(Footnote continued on next page…)

                                                 2
              This office has again received several complaints regarding
              the [Property]. An inspection was conducted [and]
              violations were noted. The [] [P]roperty has been vacant
              for several years and little to no progress had been made to
              finish construction. As you are aware[,] the trailers/storage
              on your [P]roperty have been an on-going issue since
              around 2011.

              The last we spoke regarding the newly placed containers on
              your [P]roperty was March of [2016]. You assert that the
              new containers are there to store equipment and personal
              belongings during construction. The last time a building
              permit was issue[d] was August 2015. The contractor was
              Robert Kleha Jr. and the building permit number was
              (15080118).

              It is my understanding that Mr. Kleha is no longer involved
              with said [P]roperty and the construction thereof. Further
              there has been no active construction on said [P]roperty for


(continued…)

repair, and occupancy of all buildings in the Commonwealth and preempts the establishment of
different construction standards by local ordinance. 35 P.S. §7210.104(a), (d). Section 301(a)(1) of
the Act, 35 P.S. §7210.301(a)(1), directed the Department of Labor and Industry to adopt, by
regulation, “the 1999 BOCA National Building Code, Fourteenth Edition, as a Uniform
Construction Code.” In establishing the UCC, the Department of Labor and Industry adopted and
incorporated by reference various model codes. See Section 104 of the UCC, 34 Pa. Code §403.21.

       2
          This appears to be a reference to File of Council (FOC) #155, 1999, a Scranton ordinance
entitled, “Providing for the Licensing and Regulating of Contractors Doing Business in the City of
Scranton Including Requirements for the Granting of Permits and Fees for Same; Providing
Penalties and Rights of Appeal,” adopted by the City Council of Scranton on December 13, 1999.
Although FOC #155, 1999 was not submitted into the record, Scranton’s governing codes can be
found online at the City of Scranton’s official website: http://www.scrantonpa.gov/lips.html (last
visited April __, 2019). It appears that FOC #155, 1999 was amended in its entirety by FOC #63,
2016 on December 15, 2016. See Scranton Governing Code, Chapter 203: Contractors, available at
https://ecode360.com/12077842 (last visited April __, 2019); Scranton City Council Meeting
Minutes       (Dec.     15,     2016),      http://www.scrantonpa.gov/council_agendas/2016/12-15-
2016%20Minutes.pdf.



                                                 3
               at least 12 months. As such, the above building permit has
               since expired and is no longer valid. The commercial
               containers on said [P]roperty may pose a health and safety
               risk to the public. They are causing a blighting influence
               and are unsightly in a residential zone.

               You are in violation of the Uniform Construction Code
               (UCC), the International Property Maintenance Code &
               FOC 155 of 1999. The violations and specifications are
               attached.

               Storage containers are temporary structures and the purpose
               of such containers are [sic] temporary in nature. Your
               purpose was to temporarily store equipment and personal
               items until construction was completed. However, said
               construction was abandoned nearly 12 months ago.
               Therefore, I hereby order any and all temporary storage
               containers on said property to be removed within five (5)
               days upon receipt of this letter. Failure to comply with this
               order will result in legal action. . . .

               Be advised, your [P]roperty is liable to be condemned as a
               vacant structure due to the lack of effort to finish
               construction and the fact that the structure has been vacant
               and uninhabitable for over 5 years.
(Reproduced Record (R.R.) at 31a) (emphasis added). The Notice indicated that
Bolus violated section PM-302.1 of the IPMC, which provides,

               All exterior property and premises shall be maintained in a
               clean, safe and sanitary condition. The occupant shall keep
               that part of the exterior property which such occupant
               occupies or controls in clean and sanitary condition.
(R.R. at 32a.)       Additionally, the Notice indicated that Bolus violated sections
403.63(g) and 403.84(a) of the UCC relating to construction. 3 Finally, the Notice

      3
          Section 403.63(g) of the UCC provides,

               A permit becomes invalid unless the authorized construction work
               begins within 180 days after the permit’s issuance or if the authorized
(Footnote continued on next page…)

                                                   4
indicated that the Property was in violation of FOC #155 of 1999, “[p]roviding for
the licensing and regulating of contractors doing business in the City of Scranton
including requirements for the granting of permits and fees for the same; providing
penalties and rights of appeal.” (R.R. at 32a.)
              Bolus appealed to the Board, which held a hearing on February 27,
2017, at which Bolus appeared and testified. In his testimony, Bolus raised two
issues.   In his first issue, Bolus argued that the Property was not “vacant” as
characterized by the Notice. Bolus explained that he had hired a contractor to do
work on his home located on the Property; however, the contractor damaged the
Property, which resulted in Bolus bringing suit against the contractor. Bolus stated
that the contractor’s insurance company informed him that he could not remediate the
alleged issues with the work until the claims were resolved. According to Bolus, this
resulted in “kind of a stalemate,” as construction remained incomplete and Bolus’s

(continued…)

              construction work permit is suspended or abandoned for 180 days
              after the work has commenced. A permit holder may submit a
              written request for an extension of time to commence construction for
              just cause. The building code official may grant extensions of time to
              commence construction in writing. A permit may be valid for no
              more than 5 years from its issue date.

34 Pa. Code §403.63(g). Section 403.84(a) provides,

              A building code official may determine that a building, structure or
              equipment is unsafe because of inadequate means of egress,
              inadequate light and ventilation, fire hazard, other dangers to human
              life or the public welfare, illegal or improper occupancy or inadequate
              maintenance. A vacant building or structure that is not secured
              against entry is unsafe under this section.

34 Pa. Code §403.84(a).



                                                5
personal property and equipment were being stored in the containers on the Property.
(R.R. at 39a.) Bolus testified that the home was nonetheless habitable as there was
still electrical power, state of the art heating, and running water in it. Bolus indicated
that he stays at the Property when he “feel[s] like it,” R.R. at 42a, as he frequently
travels; however, he stated that he has people watch the house for him when he is
away. (F.F. Nos. 17-18; R.R. at 39a-52a.)
               In his second issue, Bolus focused on the difference between a trailer
and a storage container and contended that the items on his Property were storage
“containers” permissible under the Scranton Zoning Code because they were not
trailers, commercial vehicles, or structures. (R.R. at 34a.) Bolus further asserted that
the issue of the containers was barred by res judicata because the issue had already
been litigated.4 Bolus explained that when the magisterial district judge directed him
to remove the trailers, he complied with the order, but replaced the trailers with seed
containers, identical to ones located throughout the city. 5 He also indicated that he
presently had four containers on the Property with his personal belongings in them.
Bolus maintained that these containers could not be classified as trailers because they

       4
          Curiously, although Bolus argued that the issue of the containers was already decided, he
also contended that, after his appeal from the magisterial district court’s order finding him guilty of
the 24 citations, the trial court was supposed to hold a hearing to settle the definition of a trailer and
to determine whether the containers on the Property fit that definition. However, Bolus asserted
that the hearing never occurred and, thus, the issue of what constitutes a trailer remained unsettled.
Although it is not clear from the record, presumably, the hearing did not occur because the trial
court dismissed Bolus’s appeal for failure to comply with the Pennsylvania Rules of Criminal
Procedure. See Board’s F.F. No. 15.

       5
         Maintaining that he is a professional in the trucking business, Bolus also explained that
once the undercarriage of a trailer, including the axles and wheels, is removed, the trailer becomes a
“container,” as it can no longer be pulled by a trailer and, instead, must be placed on top of
something such as a flatbed trailer to be hauled. (R.R. at 83a-84a.) Bolus also asserted that a trailer
must be registered, whereas a container does not because it is not a vehicle.



                                                    6
are unable to be hooked up and driven away like tractor-trailers and, instead, must be
picked up and put on a trailer in order to be hauled, similar to Pods Containers or
seed containers. Bolus further argued that the containers could not be classified as
“structures” which are built by, for example, pouring a concrete floor.            Bolus
emphasized that his containers were portable and not habitable and also noted that
they were located in a secluded area in the woods on the Property, which sits 550 feet
from the main roadway and, thus, could not present a danger to the public because the
public does not have access to his Property. (Board’s F.F. Nos. 19, 21, 23, 28; R.R. at
34a, 51a-62a, 72a-77a, 80a.)
               Director Hinton testified at the hearing and stated that, from the time he
took his position as Director in January 2014, he was “inundated” with complaints
about the Property. (R.R. at 59a.) Director Hinton also testified that he had the
opportunity to look inside the original junk/commercial vehicles on the Property and
observed “very little personal items” in them. (R.R. at 67a.) He stated his belief that
“one [P]od container would totally suffice for the personal items” or that,
alternatively, the items “could probably fit in the basement or parts of the house.” Id.
As such, Director Hinton stated, “[I]t’s my opinion that really the trailers aren’t
needed . . . .” Id. (Board’s F.F. No. 22.)
               With regard to the present matter, Director Hinton noted that Bolus had
a valid building permit for the construction on his house but, around March 2016,
Bolus notified the Director about the insurance issue that had prevented him from
proceeding with building for a couple of years. Director Hinton testified that he was
also in contact with Bolus’s former contractor, who stated he was walking away from
the project.     Noting that the last building permit was issued in August 2015
specifically for the former contractor, and that there had been no active construction



                                             7
on the Property during the prior 12 months, Director Hinton determined that the
building permit was invalid. (R.R. at 69a-71a.)
              After receiving further complaints about the trailers/containers, Director
Hinton issued the Notice, which did not assert zoning violations but instead listed
violations under the UCC because, in his estimation, the trailers/containers were
structures that were not in “good order, clean, and sanitary condition.” (R.R. at 71a.)
At the hearing, Director Hinton emphasized that, pursuant to section 403.84 of the
UCC, a building code official, such as himself, was permitted to make a
determination as to whether a structure is unsafe and urged the Board to uphold his
determination. Finally, Director Hinton noted that, under the Scranton Zoning Code
even temporary structures, such as Pods or the structures on Bolus’s Property, were
subject to regulation and the length of time that they are permitted to sit on a property
is to be determined by the ZHB.6 (R.R. at 70a-71a, 77a-79a.)
              Finally, Mary Dunleavy, a Scranton resident, testified at the hearing as a
representative of the East Mountain Residents Association.                 She stated that the
containers had been on the Property, which is in a residential zone, for the past seven
years. She explained that residents are not bothered by similar containers elsewhere
in the city because those containers were not in their residential zone, which they
“work very hard to maintain.” (Board’s F.F. at No. 29; R.R. at 86a.)
               At the conclusion of the hearing, the Board voted unanimously to
uphold the violations and subsequently issued its findings of fact and conclusions of
law. In its findings, the Board determined that, while the issue of whether the items

       6
          With regard to this point, Director Hinton cited section 807(C) of the Zoning Code, which
indicated that a temporary permit may be issued by the ZHB as a special exception for temporary
structures or uses not otherwise permitted, subject to several conditions. (Supplemental Record
(S.R.) at 8-12.)



                                                8
on the Property were temporary structures was not barred and was ripe for
consideration, Bolus’s arguments on the matter were not compelling. The Board
specifically found that the “containers” on Bolus’s property were temporary
structures, subject to regulation by the UCC. Additionally, the Board agreed with
Director Hinton and found that the temporary structures constituted an “unsafe
condition within the neighborhood” and that the Property was not in a clean, sanitary,
or good orderly condition. (Board’s F.F. No. 27.) Accordingly, the Board upheld the
Notice and concluded that Bolus was in violation of the provisions referenced therein.
(Board’s F.F. Nos. 20-21, 25, 27, 39-40.)
             Bolus appealed to the trial court, which held a hearing in September
2017, at which both sides presented only legal argument. On January 11, 2018, the
court issued a memorandum and order upholding the citations. In its opinion, the trial
court explained that it did not need to make a determination on the definition of a
trailer versus a storage container, as the relevant question before it was whether the
containers on Bolus’s property violated the pertinent sections of the UCC by
presenting an unsafe, unsanitary, or unclean condition for the public, or because they
lacked the appropriate permitting. (Trial court op. at 5.)
             As a threshold matter, the court observed that it appeared undisputed that
the four containers on the Property were being used to store various items while the
house was under construction. The court noted Director Hinton’s testimony that
construction had been stalled for over 12 months due to the dispute between Bolus
and his former contractor.      The court found this testimony was supported by
photographs in the record depicting partially completed exterior construction on the
house, including images showing an exterior staircase detached from the rest of the
home, and “large, jagged lumber boards laying around.” Id.



                                            9
                  Further, the court highlighted Bolus’s testimony that the dispute between
himself and his former contractor resulted in a “kind of a stalemate,” (R.R. at 39a), as
the insurance company for the contractor informed Bolus that he could not remediate
the alleged issues with the work until the claims were resolved.                      As a result,
construction remained incomplete and Bolus’s personal property and equipment were
being stored in the containers on the Property. (Trial court op. at 5-6.)
                  Finally, the trial court reiterated Director Hinton’s testimony that the
storage containers were “temporary structures” normally permitted during active
construction. (R.R. at 70a.) However, because the construction project had been
essentially abandoned, Director Hinton stated the permit had expired and the
“structures” were thus unlawful and posed a safety concern. While Bolus argued that
the containers were not prohibited under the Scranton Zoning Code and that he did
not consider them “structures,” Director Hinton testified that, as a licensed and
certified building code official, he was qualified and authorized by statute to
determine whether a structure is unsafe or unsanitary under the UCC. (Trial court op.
at 6.)
                  Ultimately, the trial court concluded that, under section 445-23 of the
Scranton Zoning Code,7 the containers qualified as “structures,” defined as “any man-
made object having an ascertainable stationary location on, below or in land or water,
whether or not affixed to the land[.] ” Id. Noting that the containers were 40 feet in
length, stationary, and composed of metal walls, doors, a roof, and floors, the court
stated, “[I]t seems plain that they can be considered structures under the [Scranton
Zoning] Code.” (Trial court op. at 6.) The court went on to address the UCC and
IPMC, stating that Pennsylvania codified municipal adoption of both and that

         7
             Section 445-23 of the Scranton Zoning Code was formerly section 202. (S.R. at 2-27).



                                                   10
Scranton subsequently adopted those provisions. See Sections 301(a)(1) and 501 of
the Construction Code Act, 35 P.S. §§7210.301(a)(1) (Pursuant to this section, the
Department of Labor and Industry adopted the Uniform Construction Code.),
7210.501 (requiring municipalities to adopt the UCC as their municipal building code
within 90 days of the promulgation of the UCC); Scranton Property Maintenance
Code, §360-1.8 As such, the court determined that Scranton permissibly vested city
officials with the authority and discretion to make determinations as to what qualifies
as a structure and what constitutes an unsafe or vacant structure. See Scranton
Property Maintenance Code, §§360-6 (permitting any public official to issue
“quality-of-life” violation tickets to the owners and operators of property violating

      8
          This section states,

                A certain document, one copy of which is on file in the office of the
                City Clerk of the City of Scranton, being marked and designated as
                “The International Property Maintenance Code, 2009 Edition,” as
                published by the International Code Council, be and is hereby
                adopted as the Property Maintenance Code of the City of Scranton in
                the Commonwealth of Pennsylvania for regulating and governing the
                conditions and maintenance of all property, buildings and structures;
                by providing the standards for supplied utilities and facilities and
                other physical things and conditions essential to ensure that structures
                are safe, sanitary and fit for occupation and use; and the
                condemnation of buildings and structures unfit for human occupancy
                and use, and the demolition of such existing structures as herein
                provided; providing for the issuance of permits and collection of fees
                therefor; and all of the regulations, provisions, penalties, conditions
                and terms of said Property Maintenance Code on file in the office of
                the City Clerk are hereby referred to, adopted, and made a part hereof
                as if fully set out in this article, with the additions, insertions,
                deletions and changes, if any, prescribed in § 360-2 of this article.

Scranton Property Maintenance Code §360-1, available at https://ecode360.com/29553182 (last
visited April __, 2019).




                                                  11
the IPMC); 360-7 (vesting authority in the Department, or any public official, to
enforce the IPMC). In reviewing these provisions, section 403.84(a) of the UCC,9
and the photographs in the record, the court held that the containers, which were
unsecured against entry, presented a safety concern. (Trial court op. at 7.)
               Next, the court held that the evidence demonstrated Bolus used the
containers while his property was under construction “as a means of storing certain
items.” Id. at 7. The court agreed with the Department that such containers were
temporary structures ancillary to ongoing construction projects, which could not
remain on a property without an active permit. Noting that Bolus’s building permit
had lapsed, and the Board’s finding that the containers were temporary structures
subject to permitting requirements and regulations, the court stated that section 445-
78 of Scranton’s Zoning Code made it clear the containers must be removed at no
cost to the city.10 (Trial court op. at 7.)
               Finally, the court observed that it saw no reason why the containers
should remain on the Property, particularly in light of Bolus’s testimony that his
home was capable of use and occupation which meant that he should be able to store
the items “securely in the residence without the need for th[e] containers.” (Trial
court op. at 7.) Should Bolus choose to use the containers as storage sheds or
garages, the court cautioned that he “must be prepared to comply with the applicable
zoning ordinances governing [the] same.” Id. Accordingly, the court agreed that the

       9
          As noted supra p.4, this section states, in pertinent part, “A vacant building or structure
that is not secured against entry is unsafe under this section.” 34 Pa. Code §403.84(a).

       10
          Section 445-78 of the Scranton Zoning Code, formerly section 807, states that temporary
structures must have a temporary permit issued by the Board as a special exception and must “be
removed completely upon expiration of the permit without cost to the City.” (S.R. at 8-12).




                                                 12
containers were unsafe and unsanitary temporary structures in violation of the UCC
and IPMC and upheld the violations as issued by the Department. Id. at 8.
             Bolus filed an appeal with this Court, arguing that the trial court erred in
(1) determining that the containers were “temporary structures” that were unsafe and
unsanitary; (2) upholding the Notice where there was no evidence supporting
Director Hinton’s assertion that the containers violated section 403.84 of the UCC
because they presented a danger to the public; and (3) holding that the containers
were “structures” pursuant to the Zoning Code.


                                       Discussion
             With regard to our standard of review in this case, Bolus states that,
because the trial court took no additional evidence or testimony, the proper standard
of review for this Court is whether the trial court erred as a matter of law or abused its
discretion. Conversely, the Board asserts that the trial court accepted additional
evidence at the hearing and thus it properly conducted a de novo review. (Board’s
brief at 2.) The Board asserts that it is in agreement with Bolus as to our standard of
review, which is a review for an error of law or abuse of discretion. Both parties are
partially incorrect.
             Section 754 of the Local Agency Law, entitled “Disposition of appeal,”
states,
             (a) Incomplete record.—In the event a full and complete
             record of the proceedings before the local agency was not
             made, the court may hear the appeal de novo, or may
             remand the proceedings to the agency for the purpose of
             making a full and complete record or for further disposition
             in accordance with the order of the court.




                                           13
            (b) Complete record.—In the event a full and complete
            record of the proceedings before the local agency was
            made, the court shall hear the appeal without a jury on the
            record certified by the agency. After hearing the court shall
            affirm the adjudication unless it shall find that the
            adjudication is in violation of the constitutional rights of the
            appellant, or is not in accordance with law, or that the
            provisions of Subchapter B of Chapter 5 (relating to
            practice and procedure of local agencies) have been
            violated in the proceedings before the agency, or that any
            finding of fact made by the agency and necessary to support
            its adjudication is not supported by substantial evidence. If
            the adjudication is not affirmed, the court may enter any
            order authorized by 42 Pa.C.S. § 706 (relating to disposition
            of appeals).
2 Pa.C.S. §754.
            Thus, “The statute directs that if a full record was not made before the
local agency, the trial court may either remand the matter to the agency for further
fact-finding or hear the matter de novo.” Johnson v. Lansdale Borough, 146 A.3d
696, 711 (Pa. 2016). However, when

            the trial court hears the appeal on the complete record of the
            proceedings before the local agency, the trial court’s
            standard of review is limited to determining whether there
            was a constitutional violation, an error of law, a failure by
            the local agency to comply with the statute’s procedural
            provisions, or a material finding of fact that is unsupported
            by substantial evidence.
Id.
            The decision this Court reviews depends upon whether the trial court
accepted additional evidence.

            Where the trial court does not take any additional evidence,
            our scope of review over the decision of a local agency is
            limited to determining whether constitutional rights were
            violated, whether an error of law was committed, whether
            the procedure before the local agency was contrary to


                                          14
             statute, and whether necessary findings of fact are
             supported by substantial evidence.
Kovler v. Bureau of Administrative Adjudication, 6 A.3d 1060, 1062 n.1 (Pa.
Cmwlth. 2010) (emphasis added). However, where a trial court conducts a hearing
de novo, it must weigh the evidence and make its own findings of fact and
conclusions of law, and this Court, in turn, reviews the decision of the trial court to
determine whether “constitutional rights have been violated [or] whether the [trial]
court manifestly abused its discretion or committed an error of law.” McLaughlin v.
Centre County Housing Authority, 616 A.2d 1073, 1074 n.3 (Pa. Cmwlth. 1992).
             Accordingly, Bolus is incorrect that this Court must review the trial
court opinion for an error of law or abuse of discretion if, as he asserts, the trial court
did not take additional evidence. In the event the trial court did not take additional
evidence or conduct a de novo review, this Court must review the Board’s findings
for substantial evidence. Conversely, the Board is correct that this Court should
review the trial court’s opinion for an error of law or abuse of discretion if the trial
court took additional evidence and reviewed the matter de novo.             It is unclear,
however, whether the trial court did, in fact, take additional evidence during the
hearing and, consequently, we must remand for clarification by the trial court.
             During the hearing, the trial court specifically asked Bolus’s counsel,
“Am I reviewing this record [of the Board] for an abuse of discretion or an error of
law? Do you agree with that?” (R.R. at 97a.) Bolus’s counsel agreed. Further, the
court stopped counsel for the Board from attempting to introduce testimony from
Director Hinton because, it reiterated, the court was not taking additional evidence.
(R.R. at 98a-99a.)     As Bolus notes in his brief, “[T]he trial court heard legal
argument. Neither party called any witnesses.” (Bolus’s brief at 6.)




                                            15
              Nonetheless, in its opinion, the trial court stated that it conducted a de
novo review of the Board’s decision and reviewed the case on the merits. (Trial court
op. at 3-4.) The court explained that the hearing before it was scheduled as a result of
routine practice and that it was not done because the record was in any way
incomplete. Id. However, citing section 1005-A of the Pennsylvania Municipalities
Planning Code (MPC),11 the court stated that, because it characterized the hearing as
taking additional evidence (albeit evidence that “add[ed] nothing new to the case”), it
felt that a decision on the merits was required. (Trial court op. at 4.) However, if, as
the record appears to indicate, the trial court only heard legal argument, the trial court


       11
         Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202. Section 1005-A was
added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §11005-A. In full, this section states,

              If, upon motion, it is shown that proper consideration of the land use
              appeal requires the presentation of additional evidence, a judge of the
              court may hold a hearing to receive additional evidence, may remand
              the case to the body, agency or officer whose decision or order has
              been brought up for review, or may refer the case to a referee to
              receive additional evidence, provided that appeals brought before the
              court pursuant to section 916.11 shall not be remanded for further
              hearings before any body, agency or officer of the municipality. If the
              record below includes findings of fact made by the governing body,
              board or agency whose decision or action is brought up for review
              and the court does not take additional evidence or appoint a referee to
              take additional evidence, the findings of the governing body, board or
              agency shall not be disturbed by the court if supported by substantial
              evidence. If the record does not include findings of fact or if
              additional evidence is taken by the court or by a referee, the court
              shall make its own findings of fact based on the record below as
              supplemented by the additional evidence, if any.

53 P.S. §11005-A (emphasis added). It does not appear, however, that the MPC applies here, since
the matter under consideration was not a land use appeal, see id., and the decision under review was
not issued by “any board or other body granted jurisdiction under any land use ordinance.” Section
107 of the MPC, 53 P.S. §10107.



                                                16
erred in its conclusion that it was required to conduct a de novo review, as pure legal
argument cannot be construed as the taking of additional evidence.
                 Perplexingly, the trial court stated, “At the hearing [before the trial
court] in this matter on September 19, 2017, testimony was presented by both Mr.
Bolus and representatives from the Board and the City of Scranton.” (Trial court op.
at 3) (emphasis added). Upon our own review of the record, however, we note Mr.
Bolus did not testify before the trial court at the September 19, 2017 hearing, nor did
any other party. See R.R. at 90a-112a. In fact, the only individuals who spoke on the
record at the hearing were Bolus’s attorney, the City’s attorney, and the trial court
judge.        Thus, it is unclear what “testimony” from the hearing the court was
referencing. If Bolus or representatives for the Board or Scranton did testify before
the trial court, their testimony does not appear in the record. If those individuals did
not testify before the trial court, and the court was instead referencing testimony
before the Board, it is not clear why the court used the term “testimony. . . before this
[c]ourt.” (Trial court op. at 5.) Accordingly, we remand the matter to the trial court
for the issuance of a new opinion and order specifying the evidence it relied upon,
clarifying whether it accepted additional evidence, and, based upon that information,
setting forth the appropriate standard of review.12




         12
          As noted supra note 2, FOC #155, 1999 does not appear in the record. In response to an
order from this Court directing Bolus to file the entire applicable zoning or other relevant ordinance
or code with this Court, Bolus filed a copy of City of Scranton’s Zoning Code, entitled “File of
Council #74, 1993,” instead of FOC #155, 1999. On remand, we direct the City Solicitor of
Scranton to submit a complete copy of FOC #155 of 1999, as well as its present version, into the
record.



                                                 17
            Accordingly, we must vacate the trial court’s order and remand this
matter for the issuance of a new opinion and order consistent with this opinion.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          18
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert Bolus,                            :
                  Appellant              :
                                         :    No. 202 C.D. 2018
            v.                           :
                                         :
City of Scranton Department of           :
Licensing, Inspections and Permits;      :
and City of Scranton Housing             :
Appeals Review Board                     :


                                      ORDER


            AND NOW, this 2nd day of May, 2019, the opinion and order of the
Court of Common Pleas of Lackawanna County, dated January 11, 2018, is hereby
vacated and the matter is remanded for further proceedings consistent with this
opinion.
            Jurisdiction relinquished.



                                             ________________________________
                                             PATRICIA A. McCULLOUGH, Judge
