J-A32018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CLIFFORD NULL

                            Appellant               No. 2054 WDA 2014


                   Appeal from the Order November 18, 2014
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-SA-0000015-2014


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                          FILED DECEMBER 30, 2015

        Clifford Null appeals from the order entered on November 18, 2014, in

the Court of Common Pleas of Jefferson County.         Following a summary

appeal, the trial judge conducted a de novo hearing, found Null guilty of two

summary offenses under the Pennsylvania Construction Code Act (Act), 1 and

ordered him to pay an aggregate fine of $267,268.00.2,   3
                                                             Null contends (1)

____________________________________________


1
    See 35 P.S. §§ 7210.101–7210.1103.
2
    See 35 P.S. § 7210.903 (“Penalties”).
3
  We note this case involves a local government criminal matter arising
under an ordinance, specifically, an ordinance of McCalmont Township
adopting the Pennsylvania Construction Code Act, 35 P.S. § 7210.101 et
seq. As such, this appeal properly comes within the jurisdiction of the
Commonwealth Court. See 42 Pa.C.S. § 762(a)(4)(i). The Commonwealth,
however, has not objected to our jurisdiction.

(Footnote Continued Next Page)
J-A32018-15



the fine for the summary offenses is unconstitutional as the fine is grossly

disproportional to the gravity of the offenses; (2) the trial court erred in

refusing to allow him to present his defenses by relying on the doctrine of

exhaustion of administrative remedies; (3) the fine violated due process

because the private criminal complaints did not adequately appraise Null of

the charges against him; and (4) the conviction was tainted by open

religious discrimination by the building inspector and the court’s failure to

adhere to Pa.R.Crim.P. 462.             See Null’s Brief at 8.   Based upon the

following, we vacate the court’s order and remand this matter to the court to

consider whether the fine is excessive, to decide whether additional evidence

is necessary, and to enter a new order.

      This case arises from new construction performed by Null at his

property. On April 29, 2013, Rodney Smay, a building inspector for

McCalmont Township, employed by Bureau Veritas,4 visited Null’s property

and posted a stop work order on the door of the porch because “there was
                       _______________________
(Footnote Continued)

      In a similar situation, this Court explained: “[B]ecause appellee failed
to object to this court’s lack of jurisdiction, our jurisdiction has perfected,
and it is within our discretion to decide the case on its merits. Township of
Eldred v. County of Monroe, 330 Pa.Super. 74, 478 A.2d 1357 (1984);
Pa.R.A.P. 741(a). In order to best serve the interests of judicial economy,
we will resolve the present matter in this forum.” Commonwealth v. Joki,
479 A.2d 616, 616 n.1 (Pa. Super. 1984). Therefore, we proceed with this
appeal.
4
  Bureau Veritas is the building code enforcer for McCalmont Township,
Jefferson County. See N.T., 11/17/2014, at 4.




                                            -2-
J-A32018-15



work going on at the porch” without a permit. N.T., 11/17/2014, at 5. See

also id. at 6. On June 11, 2013, Smay sent Null a letter stating that “On

April 29, 2013 Bureau Veritas put a Stop Work Order on your addition. On

that very same date … you said you were going to get the proper permits. It

has been over 40 days.”      Letter, 6/11/2013; Commonwealth Exhibit 2.

Smay advised Null to get a permit by June 28, 2013, or face fines. See id.

      In August, 2013, Null obtained Township approval to construct a 30’ x

32’ detached garage, and also a second floor addition and porch.        N.T.,

11/17/2014, at 12.    Township approval was the first step in the permit

process. Id. Null did not need a permit for a detached garage under 1,000

square feet. Id. at 13.

      On September 16, 2013, Smay sent Null a letter, stating that on April

29, 2013, a stop work order had been posted on his addition, that Null had

still not submitted the proper paper work for a permit, and that he had until

September 24, 2013, to comply or “Section 7210.903 of UCCS 35 P.S. will

be enforced.” Letter, 9/16/2013; Commonwealth Exhibit 6. See also N.T.,

11/17/2014, at 19.

      On November 14, 2013, Null obtained a permit for a second floor

addition and porch. N.T., 11/17/2014, at 14. However, the check for the

permit was later returned to the Township for insufficient funds. Id. at 23,

29.

      On November 22, 2013, Smay visited the property and found Null was

actually proceeding to build an attached garage greater than 1,000 square

                                    -3-
J-A32018-15



feet — which required a permit that Null had not obtained. Id. at 13, 15.

He also discovered Null was using rough cut lumber — not graded lumber —

on the garage and addition. Smay advised Null that using rough cut lumber

was a code violation and that he had to use graded lumber. Id. at 14–15,

18. Because Null was building an attached garage in excess of 1,000 square

feet without a permit, Smay posted a second stop work order.5 Id. at 15–

18.

        Smay visited the property again on November 25, 2013, and found

Null was continuing construction, using rough cut lumber on the front porch

and still working on the garage. Id. at 18. Smay would have posted a third

stop work order, but was told to leave the property.        Id. at 22.   On

November 25, 2013, Null faxed Smay a religious exemption affidavit. 6 Id.

at 27; see also Commonwealth Exhibit 10. On November 26, 2013, Null

submitted an agricultural building affidavit.7      Id. at 27; see also

Commonwealth Exhibit 11.

        Thereafter, Smay mailed Null two letters by certified and registered

mail, dated December 2, 2013, ordering him to stop work on the projects

____________________________________________


5
 The second stop work order should have been dated November 22, 2013,
but was incorrectly dated November 21, 2013. See N.T., 11/17/2013, at
16.
6
    See 35 P.S. § 7210.901(b).
7
    See 35 P.S. §§ 7210.104(b)(4) and 7210.103.



                                           -4-
J-A32018-15



until he obtained the proper permits or exemptions. Id. at 20–23. In one

letter, Smay explained: “The attached garage did not have the proper

permits Per Section 403.62 of Act 45.”              Letter, December 2, 2013;

Commonwealth Exhibit 7.            In the other letter, Smay advised Null that

“According to the 2009 IRC Section 502 & 602, Act 45 you cannot use rough

cut lumber. You must Stop Work on Permit #JCB 347-13 Per Section 403.81

of Act 45 until this matter gets resolved.” Letter, December 2, 2013;

Commonwealth Exhibit 8.

         On January 6, 2014, Smay notified Null that his check for the permit

had been returned for insufficient funds and “Per Section 403.62 of Act 45

you do not have a valid permit.” Letter, 1/6/2014; Commonwealth Exhibit

12. Null repaid for the permit in January. N.T., 11/17/2014, at 23.            The

stop work orders were never lifted. N.T., 11/17/2014, at 28.

        On January 16, 2014, Smay filed two private criminal complaints

against Null, which were approved by the magisterial district judge on

January 20, 2014.8        In the magisterial district court, Null was adjudged
____________________________________________


8
    At Docket No. NT-18-14, the private complaint stated, in part:

        Under Section 7210.101 to 7210.1103 of PA Construction Code
        35 P.S. 7210 PA Act 45 Section 403.81.

                On November 22nd 2013 Bureau Veritas put a stop work on
        the   Garage Addition Mr. Null put up without the proper permits.
        Mr.   Null has & was notified that day & by letters. Mr. Null hasn’t
        got   the proper permits & keep[s] working on this project after
        the   stop work order was issued!
(Footnote Continued Next Page)


                                           -5-
J-A32018-15



guilty at both dockets on March 12, 2014. Thereafter, Null filed a de novo

appeal to the trial court on April 11, 2014, and a hearing was held on

November 17, 2014. At the hearing, Smay testified that Null had a permit

for the second floor addition, but “to this day” there was “green lumber” that

was illegal, and “to this day, without a permit,” Null’s garage was illegal.

N.T., 11/17/2014, at 30–31.



                       _______________________
(Footnote Continued)


      All of which were against the peace and dignity of the
      Commonwealth of Pennsylvania and contrary to the Act of
      Assembly or in violation of 403.81 of Act 45-1999 of the 35 P.S.
      [§§] 7210.101 to 7210.1103.

Private Criminal Complaint, Docket No. NT-18-14, 1/20/2014.

      At Docket No. NT-19-14, the private complaint stated, in part:

          Under Section 7210.101 to 7210.1103 of PA Construction
          Code 35 P.S. 7210 PA Act 45 Section 403.62.

             On November 22nd 2013 Bureau Veritas put a stop
          work on the Garage Addition Mr. Null put up without the
          proper permits. Mr. Null has & was notified that day & by
          letters. Mr. Null hasn’t got the proper permits & keep[s]
          working on this project after the stop work order was
          issued!

      All of which were against the peace and dignity of the
      Commonwealth of Pennsylvania and contrary to the Act of
      Assembly or in violation of 403.62 of Act 45-1999 of the 35 P.S.
      [§§] 7210.101 to 7210.1103.

Private Criminal Complaint, Docket No. NT-19-14, 1/20/2014.




                                            -6-
J-A32018-15



        The trial court found Null guilty and imposed an escalating fine at each

docket, as follows: $1.00 per day from April 29, 2013, to June 11, 2013, for

a total of $44.00; $10.00 per day from June 12, 2013, to January 6, 2014,

for a total of $2,090.00; $100.00 per day from January 7, 2014, to March

12, 2014, for a total of $6,500.00; $500.00 per day from March 13, 2014, to

November 17, 2014, for a total of $125,000.00; and $1,000.00 per day from

November 18, 2014 (the date of the order) until Null submits a permit

application.9    See Order, 11/18/2014. Therefore, at each docket, the fine

totaled $133,634.00. The aggregate fine amounted to $267,268.00. This

appeal followed.10

        Our review is governed by the following standard:


____________________________________________


9
    The fines commenced on April 29, 2013. The trial court explained:

        Smay actually referenced the November 22, 2013 stop work
        order in the citations. He had also issued a stop work order on
        April 29 of that year, however – a fact that the Commonwealth
        proved beyond a reasonable doubt. Null did not deny being
        issued that first order, [] nor did he object to Smay’s testimony
        about what had occurred prior to November 22, 2013. The date
        differential does not change the facts, though. Section 7210.903
        had not changed between April 29 and November 22, and Null
        still knew that the citations were based on his continuing to work
        after receiving a stop work order.

Trial Court Opinion, 1/30/2015, at 4 n.1.
10
   Null timely complied with the order of the trial court to file a concise
statement pursuant to Pa.R.A.P. 1925(b).




                                           -7-
J-A32018-15


        The appellate court’s scope of review of a trial court’s
        determination on appeal from a summary conviction is limited to
        determining whether there has been an error of law or whether
        the findings of the trial court are supported by competent
        evidence.

Commonwealth v. Daugherty, 829 A.2d 1273, 1275 n.6 (Pa. Cmwlth.

2003).

        By way of background, we note this case involves the Pennsylvania

Construction Code Act (Act 45 of 1999), 35 P.S. §§ 7210.101–7210.1103,

and the regulations that implement Act 45 of 1999, which are known as the

Uniform Construction Code and are set out in the Pennsylvania Code. 11 As

the Pennsylvania Commonwealth Court has explained:

        In 1999, the Pennsylvania General Assembly enacted the
        “Pennsylvania Construction Code Act” (Act), Act of November 10,
        1999, P.L. 491, as amended, 35 P.S. §§ 7210-101 - 7210-1103,
        to establish uniform and modern construction standards
        throughout the Commonwealth. See Section 102 of the Act, 35
        P.S. § 7210.102; Modular Building Systems Association v.
        Department of Labor and Industry, 858 A.2d 686, 688 (Pa.
        Cmwlth. 2004). The Act authorized the Department of Labor and
        Industry (Department) to promulgate regulations, and the
        Department did so on April 12, 2002, and January 9, 2004.
        These regulations are known as the Uniform Construction Code.
        See Title 34 of the Pennsylvania Code, Chapters 401, 403 and
        405. The Act required municipalities to adopt the Uniform
        Construction Code as their municipal building code within 90
        days of the publication of the Uniform Construction Code in the
        Pennsylvania Bulletin. See Section 501(a) of the Act, 35 P.S. §
        7210.501(a). Further, the Act provides that the Uniform
        Construction Code preempts any construction standards
        established in local ordinances that are different from those in

____________________________________________


11
     34 Pa. Code §§ 401, 403 and 405.



                                           -8-
J-A32018-15


       the Uniform Construction Code. Section 104(d) of the Act, 35
       P.S. § 7210.104(d).

Flanders v. Ford City Borough, 986 A.2d 964, 969–970 (Pa. Cmwlth.

2009).

       As stated in Flanders, “Chapter 403 of Title 34 of the Pennsylvania

Code     governs   the   administration    and    enforcement     of    the   Uniform

Construction Code.” Id. at 970. With regard to the present case, Section

403.62 provides that one who seeks to construct or enlarge a residential

building “shall first apply to the building code official and obtain the required

permit under § 403.62a (relating to permit application).”              34 Pa. Code §

403.62(a).     Where a project proceeds without a building permit or in a

manner inconsistent with the permit, the building code official may issue a

written stop work order. See 34 Pa. Code § 403.81(a). A person who fails

to obey the stop work order may be prosecuted for a summary offense

under Section 903 of the Act or made the subject of an enforcement action

in a court of law.       See 34 Pa. Code § 403.81(c); see also 35 P.S. §

7210.903.

       Specifically,   Section   403.81    of   the   Uniform   Construction    Code

provides:

       § 403.81. Stop work order.

       (a) A building code official may issue a written stop work order
       when the official determines that construction violates the
       Uniform Construction Code or is being performed in a dangerous
       or unsafe manner. The stop work order is to contain the reasons
       for the order and list the required conditions for construction to
       resume.


                                          -9-
J-A32018-15



      (b) The building code official shall serve the stop work order on
      the permit owner or the owner’s agent by certified mail or
      personal service.

      (c) A person who continues construction after service of a stop
      work order, except for construction work that is necessary to
      remove a violation or an unsafe condition, may be subject to the
      penalties under section 903 of the act (35 P. S. § 7210.903). A
      building code official may seek enforcement of a stop work order
      in a court of competent jurisdiction.

34 Pa. Code § 403.81. Section 7210.903, referenced in Section 403.81(c),

states, in relevant part:

      § 7210.903. Penalties

      (a)   Violation of act.—

      (1)   Any individual, firm or corporation that violates any
            provision of this act commits a summary offense and shall,
            upon conviction, be sentenced to pay a fine of not more
            than $ 1,000 and costs.

      (2)   Each day that a violation of this act continues shall be
            considered a separate violation.

35 P.S. § 7210.903(a).      With this background in mind, we turn to the

arguments raised in this appeal.

      Null first contends that “the imposition of a $267,[268].00 fine for a

summary offense is unconstitutional as the fine is grossly disproportional to

the gravity of the offense.” Null’s Brief at 14. Null argues, “In determining

whether a fine is excessive one must look to the severity of the triggering

conduct and the fines imposable for other crimes in Pennsylvania.” Id. at 14

(footnote omitted).



                                   - 10 -
J-A32018-15


      In support of his argument, Null cites Commonwealth v. Eisenberg,

98 A.3d 1268 (Pa. 2014), and Commonwealth v. Heggenstaller, 699

A.2d 767 (Pa. Super. 1997).      In Eisenberg, the Pennsylvania Supreme

Court held that a mandatory minimum fine of $75,000.00 imposed by the

Pennsylvania Gaming Act for a conviction of a first-degree misdemeanor

theft of $200.00 was an excessive fine in violation of Article I, Section 13 of

the Pennsylvania Constitution.     In Heggenstaller, this Court held that

imposition of a fine in excess of $6,000.00 for failure to pay $28.75 for 911

fees in violation of a Centre County ordinance was excessive.

      In response to Null’s argument, the Commonwealth counters that the

Eisenberg Court expressly distinguished cases similar to the present case

where the fine is “‘tailored, scaled, and in the strictest sense, calculated to

their offenses.’” Commonwealth’s Brief at 12, citing Eisenberg, supra, 98

A.3d at 1287. The Commonwealth quotes Eisenberg:

         In [Commonwealth v.] Church, [522 A.2d 30 (Pa.
         1987),] overweight vehicles were fined on a sliding scale
         per pound over the weight limit. In Eckhart [v.
         Department of Agriculture, 8 A.3d 401 (Pa. Cmwlth.
         2010)], the appellant kennel operator had committed
         numerous infractions incurring a fine amount in excess of
         $150,000 based on a $100-$500 per dog/per day penalty
         scheme, $15,000 of which appellant claimed was
         excessive in light of perceived triviality of the offense. In
         [Commonwealth v.] CSX [Transportation, Inc., 653
         A.2d 1327 (Pa. Cmwlth. 1995),] 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 fine, based on a $10 per fish
         calculation.


                                    - 11 -
J-A32018-15


Commonwealth’s Brief at 12, citing Eisenberg, supra, 98 A.3d at 1287

n.24. The Commonwealth argues, “The fines imposed in Church, Eckhart

and CSX are similar to the one imposed in this case.” Commonwealth’s Brief

at 12.

         The Pennsylvania Constitution provides that, “Excessive bail shall not

be required, nor excessive fines imposed, nor cruel punishments inflicted.”

Pa. Const. art. 1, § 13.      In Eisenberg, the Pennsylvania Supreme Court

opined that the Pennsylvania Constitution’s prohibition against excessive

fines requires the fine to be “reasonably proportionate to the crimes which

occasion them.” Eisenberg, supra, 98 A.3d at 1287. In Heggenstaller,

the Pennsylvania Commonwealth Court explained that “the cumulative

nature of the fine is in keeping with the terms of the ordinance but when an

ordinance is written so as to have a punitive and/or confiscatory effect,

without relation to the individual’s ability to pay and the severity of the

violation, it does not meet the standard required by the constitution.”

Heggenstaller, 699 A.2d at 769. “A fine should be sufficient enough to

discourage the conduct, but not so excessive as to be punitive in nature.”

Id. Therefore, in sentencing for a summary offense,

         the trial court should weigh all mitigating and aggravating
         factors and arrive at an appropriate sentence that is consistent
         with the protection of the public and the gravity of the offense.
         Considerations should include the history and character of the
         defendant, the nature and circumstances of the crime . . . and
         the defendant’s attitude, including a lack of contrition for his
         criminal conduct. Finally, if a sentence is imposed within the
         statutory limits, there is no abuse of discretion unless the

                                      - 12 -
J-A32018-15


        sentence is manifestly excessive so as to inflict too severe a
        punishment.

Borough of Kennett Square v. Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth.

1994).

        In this case, the trial court told Null “you can’t ignore the law,”12

taking note of Null’s attitude, but did not address whether the escalating fine

of $267,268.00 was “reasonably proportionate to the crimes which occasion

them.” Eisenberg, supra. Therefore, on this record, we are compelled to

vacate the court’s order and remand to the trial court for consideration of

whether the fine is too severe in view of all mitigating and aggravating

factors.13

        Our resolution of Null’s first issue, however, does not fully resolve this

appeal. Therefore, we turn to Null’s remaining issues.

        In the second issue, Null contends “the trial court erred by refusing to

allow [him] to present his defenses based upon an unsupported view that

the doctrine of exhaustion of administrative remedies forbade [him] from

raising his defenses in a criminal proceeding.”             Null’s Brief at 20.

Specifically, Null challenges the court’s ruling that prevented Null from cross-

____________________________________________


12
     N.T., 11/17/2013, at 54.
13
  To the extent that the court’s order of November 18, 2014, imposed a fine
that continued after the date of the hearing and the date of its order, we
note that 35 P.S. § 7210.903 does not authorize an open-ended fine.




                                          - 13 -
J-A32018-15


examining Smay concerning the religious exemption affidavit and the

agricultural building affidavit he had submitted to Smay.

      Regarding a religious exemption, Section 7201.901 provides, in

relevant part:


   (1)   An applicant for a construction permit for a dwelling unit … may file
         an application with a code administrator to be exempted from the
         Uniform Construction Code, as provided in this subsection, which
         conflicts with the applicant’s religious beliefs. The application shall
         state the manner in which the provision conflicts with the
         applicant’s religious beliefs and shall include an affidavit by the
         applicant stating ….

   (2)   A code administrator shall grant an application for an exemption if
         made in accordance with paragraph (1).

35 P.S. § 7210.901(b)(1)-(2).

      Furthermore,    35   P.S.   7210.104(b)(4)   provides   that   agricultural

buildings are excluded from the Act. The Act defines an “agricultural

building” as

      [a] structure utilized to store farm implements, hay, feed, grain
      or other agricultural or horticultural products or to house
      poultry, livestock or other farm animals, a milk house and a
      structure used to grow mushrooms, agricultural or horticultural
      products. The term includes a carriage house owned and used
      by members of a recognized religious sect for the purposes of
      housing horses and storing buggies. The term shall not include
      habitable space or spaces in which agricultural products are
      processed, treated or packaged and shall not be construed to
      mean a place of occupancy by the general public.

35 P.S. § 7210.103.




                                     - 14 -
J-A32018-15


       In this case, Null did not submit affidavits for a religious exemption14

and “agricultural building”15 until November 25, 2013, and November 26,

2013, respectively — after the issuance of two stop work orders.

Furthermore, Null submitted the religious affidavit without an application.
____________________________________________


14
  Null’s religious exemption affidavit, dated November 25, 2013, stated, in
part:

       1. I, the permit applicant, am a member of a religious sect.

       2. The religious sect has established tents or teachings which
          conflict with an electrical, a plumbing or a lumber and wood
          provision of the Uniform Construction Code.

       3. The permit applicant adheres to the established tenets or
          teachings of the sect.

Commonwealth Exhibit 10 (italics removed).
15
   Null’s agricultural building affidavit, dated November 26, 2013, was on a
Bureau Veritas form, in which Null attested that the agricultural building he
was constructing:

       1. Will be utilized to store farm implements, hay, feed, grain or
          other agricultural or horticultural products or to house
          poultry, livestock or other farm animals and a milk house.
          The term includes a carriage house owned and used by
          members of a recognized religious sect for the purposes of
          housing horses and storing buggies.

       2. Will not be utilized as a habitable space.

       3. Will not be utilized as a space in which agricultural products
          are processed, treated or packaged.

       4. Will not be utilized as a place of occupancy by the general
          public.

Commonwealth Exhibit 11.



                                          - 15 -
J-A32018-15


See 35 P.S. § 7210.901(b)(1).       In response, Smay sent Null two letters,

dated December 2, 2013, acknowledging receipt of the affidavits and

informing Null that the stop work orders would not be lifted until certain

terms were met. Null did not comply with Smay’s directives or seek

administrative review of the affidavits.

      Based on our review, we agree with the trial court that Null’s affidavits

had no relevance since Null failed to pursue administrative review of Smay’s

decision not to accept them. As the trial court opined:

      Because Null refused to comply with the Code and apply for a
      permit or exemption even after Smay offered a potential
      resolution to their disagreement, … he alone created a situation
      wherein there was no formal request to grant or deny. He thus
      deprived himself of the opportunity to come into compliance with
      the Code and its effectuating ordinance either by adhering to its
      building requirements or satisfying Smay that he was
      constructing an agricultural building and that he was a member
      of a recognized religious sect to whom application of the Code
      was odious.

      In taking the actions he did, Null also foreclosed the possibility of
      appealing an adverse decision to the board of appeals. That,
      however, was what § 7210.501 required, stating, “A municipality
      which has adopted an ordinance for the administration and
      enforcement of this act … shall establish a board of appeals .. to
      hear appeals from decisions of the code administrator. Id. It
      further clarified that claims such as Null attempted to raise in his
      summary trial were claims meant to be addressed to the board.
      In that regard, subsection (c)(2) provided, “An application for
      appeal shall be based on a claim that the true intent of this act
      or regulations legally adopted under this act have been
      incorrectly interpreted, the provisions of this act do not fully
      apply or an equivalent form of construction is to be used.” Id.
      Had he done what the law required, therefore, Null could have
      asked the Court to consider his exemption claims only after
      exhausting his administrative remedies. He elected to disregard
      that process, and the Court was not going to let him defend his

                                     - 16 -
J-A32018-15


      actions by reference to facts he was required to first present for
      the code administrator’s consideration.

Trial Court Opinion, 1/30/2015, at 2–3.

      Furthermore, we are not persuaded by the cases presented by Null in

support of his argument that the court erred in applying the exhaustion of

administrative remedies doctrine: McKart v. United States, 395 U.S. 185

(1969), Feingold v. Bell of Pennsylvania, 383 A.2d 791 (Pa. 1978), and

Flanders v. Ford City Borough Council, 986 A.2d 964 (Pa. Cmwlth.

2009).

      In McKart, supra, the United States Supreme Court held that the

petitioner’s failure to appeal the Selective Service Board decision that

removed his exemption as “sole surviving son,” and classified him as

available for military service, did not foreclose judicial review of his defense

to his criminal prosecution for failure to report. Id., 395 U.S. at 196–197.

In McKart, the question of whether the petitioner was entitled to an

exemption as a “sole surviving son” after his mother, his only living parent,

became deceased, was “solely one of statutory interpretation.”         McKart,

395 U.S. at 197–198.

      In Feingold, supra, the Pennsylvania Supreme Court found that the

plaintiff, who was seeking damages, had no adequate administrative

remedy, and held he had no duty to first exhaust administrative procedures

before resorting to the courts. Id., 383 A.2d at 795–796.          Feingold is

readily distinguishable from this case wherein the question is whether Null’s



                                     - 17 -
J-A32018-15



failure to pursue an exemption denial precluded his exemption defense at

trial.

         Finally, in Flanders, the Commonwealth Court recognized that “the

issuance of a stop work order is governed by 34 Pa. Code § 403.81, and it

does not provide that this order can be appealed to a construction board of

appeals.”      Id., 986 A.2d at 973. Here, however, the issue concerns

exemption denials for which Null could have, but did not, pursue an

administrative appeal. See 35 P.S. § 7210.501(c) (“Board of Appeals”); 34

Pa. Code 403.62(i) (permit applicant may appeal a building code official’s

action on the permit application). See generally, In re Appeal of Miller,

81 A.3d 1087 (Pa. Cmwlth. 2013) (property owner, claiming agricultural

exemption, appealed to board following issuance of stop work order);

Samsel v. Unif. Constr. Code Bd. Of Appeals of Jefferson Twp., 10

A.3d 412 (Pa. Cmwlth. 2010) (same).

         In sum, we find no merit to the argument presented by Null.

Accordingly, we reject Null’s claim that the trial court erred in applying the

exhaustion of administrative remedies doctrine to disallow certain cross-

examination questioning of Smay regarding the religious and agricultural

exemptions sought by Null.

         Thirdly, Null claims that the imposition of a $267,268.00 fine for a

summary offense violated his right to due process because the private

criminal complaint did not appraise him of the charges against him.       See

Null’s Brief at 26. Although Null presents multiple arguments in his brief in

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connection with this issue, the only due process claim that Null preserved in

his Rule 1925(b) statement is, as follows:

        The fine violated [Null’s] basic right to due process as the private
        criminal complaint authorized by a Magistrate Court failed to
        provide notice that [Null] was facing a potential fine of a quarter
        of a million dollars instead of $2,000.00 authorized by the
        statute.

Null’s Concise Statement, 1/5/2015, at 2, ¶5.

        Pennsylvania Rule of Criminal Procedure 403(A) provides, in pertinent

part:

        Every citation shall contain:

          (1)       the name and address of the organization, and
                    badge number, if any, of the law enforcement
                    officer;

          (2)       the name and address of the defendant;

          (3)       a notation if the defendant is under 18 years of age
                    and whether the parents or guardians have been
                    notified of the charge(s);

          (4)       the date and time when the offense is alleged to
                    have been committed, provided however, if the day
                    of the week is an essential element of the offense
                    charged, such day must be specifically set forth;

          (5)       the place where the offense is alleged to have been
                    committed;

          (6)       a citation of the specific section and subsection of
                    the statute or ordinance allegedly violated, together
                    with a summary of the facts sufficient to advise the
                    defendant of the nature of the offense charged;

          (7)       the date of issuance;



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J-A32018-15


          (8)        a notation if criminal        laboratory   services   are
                     requested in the case;

          (9)        a verification by the law enforcement officer that the
                     facts set forth in the citation are true and correct to
                     the officer's personal knowledge, or information and
                     belief, and that any false statements therein are
                     made subject to the penalties of the Crimes Code, 18
                     Pa.C.S. § 4904, relating to unsworn falsification to
                     authorities.

Pa.R.Crim.P. 403(A).

        Review of the private criminal complaints reveals compliance with the

requirements of Rule 403(A).            Additionally, we note the Rule does not

require notice of possible penalty. Therefore, we conclude Null’s third

argument warrants no relief.

        Finally, Null claims “the order of conviction was tainted by the open

religious discrimination by Rodney Smay and the trial court’s failure to

adhere to [Pennsylvania Rule of Criminal Procedure] 462.”16 Null’s Brief at

____________________________________________


16
     Rule 462 provides, in relevant part:

        (G) At the time of sentencing, the trial judge shall:

        (1) if the defendant’s sentence includes restitution, a fine, or
        costs, state the date on which payment is due. If the defendant
        is without the financial means to pay the amount in a single
        remittance, the trial judge may provide for installment payments
        and shall state the date on which each installment is due;

        (2) advise the defendant of the right to appeal to the Superior
        Court within 30 days of the imposition of sentence, and that, if
        an appeal is filed, the execution of sentence will be stayed and
        the trial judge may set bail; ….

(Footnote Continued Next Page)


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32. Specifically, Null argues, “As a result of Mr. Smay’s religious bias Mr.

Null was treated differently than similarly situated Amish Christians who

submit religious affidavits as a matter of course.     Accordingly, Mr. Null’s

prosecution, conviction and sentence was tainted and should be vacated.”

Id. at 33.     Null also maintains that the court’s failure to comply with Rule

462 does not constitute harmless error, but rather is “symbolic of the overall

lack of due process Mr. Null received in the trial court.” Id. at 34. We find

no merit in these arguments.

      As discussed above, the record reflects that Null submitted a religious

exemption affidavit to Smay, and failed to seek administrative review of

Smay’s response that requested more information. See Letter, 12/2/2013;

Commonwealth Exhibit 8.17 Therefore, we reject Null’s argument concerning

Smay’s religious bias.
                       _______________________
(Footnote Continued)

Pa.R.Crim.P. 462(G)(1),(2).
17
  Specifically, with regard to the religious exemption affidavit, Smay advised
Null:

          4.) Bureau Veritas has received a Religious Exemption
          Affidavit from Mr. Null. This seems to be a way for him to
          not have to follow the code and Act 45. Bureau Veritas
          will honor the religious exemption that Mr. Null signed if
          he will show Bureau Veritas proof, as stated, through
          numbers 1–3 on the affidavit he signed. Bureau Veritas
          will be happy to sit down with his religious sect or his
          religious leader to get this resolved.

      If Mr. Null can prove he is part of a religious sect, Per Act 45,
      this will clear up the rough cut lumber issue for the garage,
(Footnote Continued Next Page)


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      Nor do we find merit in Null’s argument that the court’s failure to

comply with Rule 462 constitutes reversible error. The trial court reasoned:

      [W]hile the Court admittedly neglected to inform Null of a
      payment due date or the possibility of installments and of his
      appellate rights, those omissions did not render the sentence
      illegal and, as the record indicates, did not prejudice him. Null
      was represented by counsel throughout the process, and as
      evidenced by the filing date on his notice of appeal, counsel was
      aware of the prescribed appeal period and apparently apprised
      his client of it, the result being that Null did in fact file his appeal
      within 30 days and thus was not adversely affected by the
      Court’s error. Additionally, because the execution of sentence
      was stayed on account of the appeal, Null’s obligation to pay was
      immediately suspended. Accordingly, that the Court omitted to
      convey his payment options on November 17, 2014 also did not
      prejudice him.

Trial Court Opinion, 1/30/2015, at 5. We agree with the trial court that any

omissions with regard to Rule 462 were harmless error.            Additionally, we

find no support in the record for Null’s claim of “overall lack of due process

Mr. Null received in the trial court.” Null’s Brief at 34.

      To conclude, we find merit solely in Null’s first argument. Accordingly,

we vacate the court’s order and remand this matter to the court to consider

whether the fine is excessive, to decide whether additional evidence is

necessary, and to enter a new order.

      Order vacated. Case remanded. Jurisdiction relinquished.
                       _______________________
(Footnote Continued)

      porch and 2nd story addition. If the exemption holds up, proper
      inspections are still required.

Letter, 12/2/2013; Commonwealth Exhibit 8.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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