            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia                            :
                                                :
          v.                                    :   No. 916 C.D. 2019
                                                :   Submitted: June 12, 2020
Horizon House, Inc.,                            :
                              Appellant         :


BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                   FILED: July 10, 2020

               Horizon House, Inc. (Owner) appeals from an order of the Philadelphia
County Court of Common Pleas (Trial Court) imposing fines for violations of the City
of Philadelphia (City) Code (Code), specifically the Property Maintenance (PM)
Subcode,1 i.e., unsafe fire escape and cracked exterior wall. The City Department of
Licenses & Inspections (Department) cited Owner for past and continuing violations
and sought daily fines for the 14 months of the violation. The Trial Court reduced
the fines to $40,000. Owner argues the Trial Court failed to properly apply the Fire
Escape Ordinance (Phila. Code, §§F-1104.16.1-.16.7) and abused its discretion in
issuing a $40,000 fine without considering compliance efforts. Owner seeks reversal
of the Trial Court’s order or, in the alternative, a reduction of the fine to $500 to
reflect the purportedly de minimis nature of the violation. The Department counters
that the citations underlying its equity action referred to the Property Maintenance
Code, not the Fire Escape Ordinance. Discerning no error below, we affirm.

      1
          Phila., Pa., Property Maintenance Subcode, §§101.1-904.2 (effective July 1, 2015).
                                   I. Background
             Owner operated as a group home for disabled adults within a three-
story, unattached masonry structure that is approximately 75 years old located at
4613 Chester Avenue, Philadelphia, Pennsylvania (Premises).


             On June 28, 2016, the City enacted a new fire escape inspection
ordinance requiring the inspection and repair of all fire escapes in the City. See Fire
Escape Ordinance, Phila. Code, §§F-1104.16.1-.16.7.          The ordinance requires
periodic inspections of fire escapes and required all property owners to file their
initial inspection reports by July 1, 2017. Phila. Code, §F-1104.16.5.1.2 & .3.


             On October 21, 2017, Owner submitted an engineer’s report regarding
the compliance of the fire escape as required by the new ordinance (2017 Report).
The 2017 Report identified a number of problems with the fire escape as follows:

      • The platforms and stairs were “in poor condition” due to age, rust, and
      corrosion;
      • Supporting brackets and anchor bolts for third floor platform had failed due
      to loose brickwork;
      • Three corner brackets supporting the third-floor platform were structurally
      deficient;
      • The steel supporting angle for the second floor platform had slipped out of
      position and was missing an anchor bolt;
      • The second floor handrail was inadequately secured to the wall; and
      • The foundation supporting a stairway post was “cracked and non-
      functional.”
Supplemental Reproduced Record (S.R.R.) at 23b-24b. The engineer concluded that
the fire escape was in “UNSAFE” condition and noted: “Extensive repairs are




                                          2
required.” S.R.R. at 23b (emphasis in original). As required by the ordinance,
Owner transmitted this report to the City.



             Based on the 2017 Report, on October 23, 2017, an inspector from the
Department visited the property and issued a Notice of Violation (Notice) regarding
the fire escape.    Relevant here, the Notice cited violations of the Property
Maintenance Code, Sections PM-304.1(7) and PM-304.1(11). S.R.R. at 14b-15b.


             The Department deemed the fire escape “Unsafe” under PM Code
Section PM-108.1, meaning the structure was “dangerous to the life, health, property
or safety of the public or the occupants.” S.R.R. at 14b. The Notice directed Owner
to obtain a report from a licensed engineer and send that report to the Department,
and to complete repairs in accordance with the engineer’s recommendations. Id. Of
importance, Owner did not appeal the Department’s determination of these
violations through the administrative process.


             Owner secured a bid in June 2018, and on July 2, 2018, it hired a
contractor to perform required repairs. That same day, the Department issued a Final
Warning based on a re-inspection that found the violations (i.e., fire escape and
cracked concrete footer) were still unresolved. See S.R.R. at 17b-18b. The Final
Warning again ordered Owner to obtain an engineer’s report and complete repairs,
and also ordered Owner to develop a plan and timeline for remediation. Id.


             The City filed the instant action in equity in September 2018 seeking to
remedy these violations of the Property Maintenance Code. S.R.R. at 1b-18b


                                         3
(Complaint). In addition to seeking an injunction requiring Owner to immediately
correct the violations, the City also sought: fines for past violations; accumulating
fines for each day the violation remained uncorrected; and re-inspection fees.


               In response to the Final Warning, Owner engaged a different engineer,
and obtained a new summary inspection report regarding the condition of the fire
escape in October 2018 (2018 Report). S.R.R. at 30b. This certified that all repairs
to the fire escape were completed, and it was in “SAFE CONDITION,” but did not
state what (if any) repairs had been done. Id. However, there were no repairs to the
exterior wall. See Final Warning (citing Phila. Code, PM-304.1(7), (11)).


               The Trial Court held a hearing on October 25, 2018 and entered an
order requiring specific steps toward compliance and imposing a fine (Order to
Comply Violations, filed Oct. 25, 2018). Owner did not appear at this hearing.
Initially, the Trial Court upheld a fine of $780,450.2


               In November 2018, the City filed a praecipe to enter default judgment.3
Shortly thereafter, counsel entered an appearance on Owner’s behalf, and a second
hearing was scheduled. In lieu of a hearing, the Trial Court entered an order of the
parties’ agreement to remediate the violations. S.R.R. at 19b-21b (Dec. 6, 2018 Order
to Comply by Agreement). Therein, the parties stipulated that not all of the
violations had been remediated. See S.R.R. at 19b ¶3. Owner also agreed to engage


       2
         This fine was calculated, as follows: Class III Violation x $2,000 x 363 days = $726,000;
plus Basic Violation x $150 x 363 days= $54,450. Trial Ct., Slip Op., 10/8/19, at 4.
       3
          Ultimately, based on Owner’s motion for reconsideration seeking to open the judgment
for lack of service of process, the Trial Court struck the judgment. See Order filed Jan. 24, 2019.

                                                4
an engineer to address the anchorage of the fire escape to the building and the fractured
concrete footer and to provide a copy of that report to the Department.


             Later that month, Owner repaired the cracked foundation and obtained
a supplemental engineer’s report dated December 18, 2018, that listed the items that
had been repaired, including the wall attachment and cracked footing (Supplemental
Report).


             Inspector re-inspected the property on January 2, 2019, and confirmed
the repair of the cracked foundation.       Trial Ct., Hr’g Tr., 2/26/19, (Notes of
Testimony (N.T.) at 23-24. Owner provided the Supplemental Report to Inspector
in January 2019. As of January 8, 2019, the Department marked the case closed.

             On February 26, 2019, the Trial Court held a hearing where both parties
submitted evidence and presented witness testimony. Department inspector Tom
Rybakowski (Inspector) testified on behalf of the City about the timeline of the
violations, including the initial Notice in October 2017 and Final Warning in July
2018. He testified that the 2018 Report did not address the cracked concrete
foundation of the support post and that the foundation was still damaged when he
visited the Premises in November 2018. He confirmed the Department deemed that
violation resolved as of January 8, 2019. N.T. at 25.


             As to his re-inspection in November 2018, Inspector observed that most
of the defects listed in the 2017 Report had been remedied, but the fractured concrete
foundation supporting the fire escape had not been repaired. N.T. at 13-14, 22-23.
Inspector’s concern with the cracked foundation was that the 2017 Report deemed it


                                           5
structurally unstable, plus the crack would allow water to penetrate into the
foundation, causing further deterioration. N.T. at 19 (“The foundation supporting the
first floor stair tee-beam and post is cracked and nonfunctional. This is a long stair
span and the post is essential for structural integrity.”); see S.R.R. at 23b.


             Owner’s manager (Manager) testified regarding the notices and repairs.
He confirmed that Owner had not made any repairs between October 2017, when it
received the Notice, and October 2018. N.T. at 41. He stated the company had
difficulty finding a contractor that was willing to perform the repairs, and it took
“several weeks” to receive the first bid, and the company needed to solicit multiple
bids before choosing a contractor. N.T. at 39-40. The contractor selected to complete
the work submitted a proposal on June 29, 2018, that he approved days later.
Nonetheless, the contractor did not begin work until October 2018 because Owner
had cash flow issues and could not make the initial payment. N.T. at 41.


             On cross-examination, Manager admitted the contractor’s proposal in
July 2018 did not include repair to the cracked foundation, despite that the 2017
Report identified that concern. N.T. at 50-51. He testified that after learning of the
cracked foundation in early December 2018, he engaged the same contractor to
perform that repair, and it was completed later that month. N.T. at 43.


             Based on the evidence and argument, the Trial Court entered a final
order noting the Department deemed the violations complied as of January 8, 2019.
Ruling from the bench, the Trial Court set an absolute fine of $40,000 despite that
the City asked for the maximum fine under the Code. The Trial Court noted that



                                            6
because Owner continued to house disabled residents at the Premises while the
violations existed, it had a responsibility “to move on these repairs in a reasonable
amount of time.” N.T. at 59. It further stated: “[on] October 23, 2017 and July 2, 2018,
the [Department] sent a [Notice] informing [Owner] of the existence of violations of
Title 4 of The Philadelphia Code of General Ordinances at the [Premises].” Tr. Ct.
Order 2/26/19. The Trial Court directed judgment in favor of the City.


               Owner then filed the instant appeal of that order in the Superior Court,
which transferred the appeal to this Court. Based on Owner’s concise statement of
errors complained of on appeal, the Trial Court issued its Pa. R.A.P. 1925(a) opinion.

                                         II. Discussion
               On appeal,4 Owner challenges whether it violated the Fire Escape
Ordinance, disregarding the cited violations of the Property Maintenance Code.
Owner maintains fines should not be imposed when a violation has been remedied. It
also contends the $40,000 fine is unreasonable and seeks a reduction to $500 to reflect
the minor nature of the violation.


               The City emphasizes Owner’s focus on the wrong Code provisions, and
Owner’s admitted noncompliance.              It argues Owner’s long-standing violations
warranted judgment in its favor. The City also contends the fine was not manifestly
unreasonable when the Premises was a home to 18 disabled people, and the unsafe
conditions created a risk of serious injury or death for over one year.


       4
          In an equitable action brought to enforce local building codes, this Court’s review is
limited to whether the trial court committed an error of law or abused its discretion. Williams Twp.
Bd. of Sup’rs v. Williams Twp. Emergency Co., 986 A.2d 914 (Pa. Cmwlth. 2009).

                                                 7
                              A. Compliance/Code Violations
               Significantly, Owner has not disputed the cited legal basis for the fine:
namely, violations of the Property Maintenance Code.


               Instead, Owner insists it complied with the Fire Escape Ordinance
because property owners are not charged with a violation when they “commence
work” to correct an unsafe condition, and Manager’s calls to contractors satisfy that
requirement.5 Appellant’s Br. at 14-16. However, Owner was cited for violations
under the Property Maintenance Code, not the Fire Escape Ordinance. See S.R.R. at
14b-15b (Notice of Violation, citing PM-108.1, PM-304.1(7), (11)); 17b-18b (Final
Warning, citing same). Also, the Trial Court’s final order was based on the violations
cited in the Notice, plus the basic, daily fines and the enhanced fine for the Class III
“unsafe” designation under PM-108.1 available for those violations. Nowhere did
the Trial Court mention violations of the Fire Escape Ordinance.


               Notwithstanding that Owner did not brief the Property Maintenance
Code violations that form the basis for the fines, we decline to deem its compliance
argument waived under Pa. R.A.P. 2119 because its arguments are discernible.6


       5
          Regardless, we reject Owner’s argument that its search for a contractor manifested
compliance with the Fire Escape Ordinance. Notably, since the 2017 Report designated the fire
escape as “unsafe,” it “requires prompt remedial action.” Phila. Code, §F-1104.16.5.1. The
ordinance demands that, within 10 days of notice of the unsafe condition, the owner “shall commence
work to correct the condition, and work shall continue without interruption until the unsafe condition
has been corrected.” Phila. Code, §F-1104.16.5.1.9(2) (emphasis added). It is undisputed that Owner
did not perform any work on the fire escape within 10 days of the 2017 Report. In fact, the record
shows no repair work was done until a year later. In this context, “commencing work” meant repairs.
Also, Owner conceded there is no evidence as to when its engineer or contractor commenced
compliance efforts. See Appellant’s Br. at 21.
       6
         This Court may address an argument not properly briefed when the issue is capable of
review. See Spring Creek Mgmt., L.P. v. Dep’t of Pub. Welfare, 45 A.3d 474 (Pa. Cmwlth. 2012).


                                                  8
             Owner concedes that it failed to exhaust its administrative remedies so
the violations of the Property Maintenance Code set forth in the Notice and Final
Warning are admitted. Because it did not appeal the Notice, it cannot now dispute the
factual or legal basis for those violations. See City of Phila. v. DY Props., LLC, 223
A.3d 717 (Pa. Cmwlth. 2019) (failure to appeal Code violation results in deemed
admission of violations); see also City of Phila. v. Lindy, 455 A.2d 278 (Pa. Cmwlth.
1983); Gans v. City of Phila., 403 A.2d 168 (Pa. Cmwlth. 1979). Thus, Owner
provided no basis to overturn the Trial Court’s finding that it was in violation of the
Property Maintenance Code for over 400 days. Trial Ct., Slip Op., 10/8/19, at 12-13.


             Moreover, the record is clear that Owner did not attempt to repair the
cracked foundation until December 2018, and did not provide a report showing the
completion of repairs and certifying the building as safe until January 2019. As
such, the record supports the Trial Court’s conclusion that Owner violated the
relevant Property Maintenance Code through December 2018, more than a full year
after receiving the Notice (of Violation) in October 2017 and several months after
receiving the Final Warning in July 2018. Thus, we discern no error by the Trial
Court in entering judgment in the City’s favor and enforcing Owner’s compliance
with the Property Maintenance Code.


                            B. Abuse of Discretion/Fines
             Owner’s challenge to the amount of the fine is also largely based on the
Fire Escape Ordinance, and therefore is inapposite. Nonetheless, Owner contends
the Trial Court abused its discretion in issuing the $40,000 fine for the continuing
violation. It seeks reduction of the fine to $500 as more proportional to the violation.



                                            9
               The City maintains the Trial Court acted well within its discretion in
imposing a $40,000 fine as the fine was far lower than the authorized maximum
under the Code. It posits the amount of the fine does not constitute an abuse of
discretion given the duration of noncompliance at issue, particularly when the Code
authorizes a fine of several hundred thousand dollars.


             Section A-601 of the Code specifies penalties for Code violations. At
the relevant time, Section A-601.1 of the Code provided:

             Any person who shall violate any provision of this [C]ode or the
             technical codes or regulations adopted thereunder; or who shall
             fail to comply with any order issued pursuant to any section
             thereof ... shall be subject to a fine of not less than $150.00 and
             not more than $300.00 for each offense.

Phila. Code, §A-601.1. In addition to these basic fines, the “unsafe” designation
made the unstable fire escape a Class III violation, which is subject to both the $300
per day basic fine and a $2,000 per day enhanced fine. See Phila. Code, §§PM-
108.1, A-601.1, 601.3, 601.4, & 1-109(3) (relating to Class III violations).


             We examine the Trial Court’s imposition of the fine under an abuse of
discretion standard. The high standard of showing a reversible abuse of discretion
is met only where “the law is overridden or misapplied or judgment exercised is
manifestly unreasonable or is the result of partiality, prejudice, bias, or ill will.” DY
Props., 223 A.3d at 724. “An abuse of discretion is not merely an error of
judgment.” Id.




                                           10
               In the instant case, there has been no suggestion of bias or ill will by
the Trial Court. In our view, the Trial Court correctly applied the law and reached a
reasonable decision based on Owner’s admitted violations.


               The record reflects that the Department issued the Notice on October
23, 2017, and the Final Warning on July 2, 2018, yet the violations remained open
until January 8, 2019, a total of 442 days. As a continuing violation, daily fines were
proper. See Phila. Code, §§1-109, A-601.4. The maximum fine allowed was
$1,016,600 (442 days times $2,300 per day). Even just the basic fine was $132,600
(442 days times $300 per day). Thus, the Trial Court’s $40,000 fine, a fraction of
the legal maximum, was well within its discretion. DY Props.


               These facts are similar to those in our recent decision, DY Properties.
There the owner also admitted to Code violations by not appealing the notice of
violation and then failed to correct the violations for eight months. Like the Trial
Court here, the trial court in DY Properties ordered a fine below the maximum. We
affirmed, reasoning that because the owner admitted the violations, and the fines
were authorized by the Code, the fines were within the court’s discretion. Id.


               Imposing daily fines is also supported by applicable precedent. This
Court has upheld similar and larger fines in code enforcement or zoning cases that,
unlike this one, did not involve an imminent safety hazard. See, e.g., E. Penn Twp.
v. Troxell (Pa. Cmwlth., No. 875 C.D. 2011, filed Apr. 5, 2012), 2012 WL 8681524
(unreported)7 (upholding $500 per day, per violation fine, totaling $624,500, for

       7
         We cite this case for its persuasive value in accordance with Section 414(a) of this Court’s
Internal Operating Procedures, 210 Pa. Code §69.414(a).

                                                11
parking commercial vehicles, raising pigs, storing junk, and impermissibly operating
a trucking terminal); City of Erie v. Freitus, 681 A.2d 840 (Pa. Cmwlth. 1996)
(upholding $100 per day fine, totaling $14,000, for operating scrapyard in violation
of zoning ordinance); Woodruff v. L. Southampton Twp., 516 A.2d 834 (Pa. Cmwlth.
1986) (upholding $100 per day fine, totaling $157,600, for operating junkyard in
violation of zoning ordinance).


             We reject Owner’s claims that it complied “within days” by hiring a
contractor to fix the fire escape to warrant a fine reduction. Appellant’s Br. at 9, 11-
12. First, its contention is contrary to the record, including the stipulated Order to
Comply by Agreement, showing that the cracked foundation was not repaired until
December 2018. See N.T. at 10, 63-64; S.R.R. at 19b-20b. Thus, Owner’s claim
that it remedied all of the violations in October 2018 disregards the evidence.


             Aside from its noncompliance with the Property Maintenance Code in
not repairing the footer, and contrary to its characterization, Owner did not promptly
repair the fire escape. The record contradicts Owner’s claim that the delay in
repairing the fire escape was attributable to unavailability of a contractor; rather,
Manager testified cash flow issues caused the delay. N.T. at 41. It was not
manifestly unreasonable for the Trial Court to find that this excuse did not justify
more than a year’s delay in repairing or attempting to work with the Department to
develop a timeline for repairs as directed by the Final Warning.


             The fine was not manifestly unreasonable under the circumstances. The
Trial Court found that Owner failed to repair the fire escape for over a year based on



                                          12
competent evidence. Although Owner was on notice that the fire escape was unsafe
and incapable of supporting necessary weight loads in October 2017, it neglected to
conduct repairs until October 2018, and the concrete footer was not repaired until
December 2018. The Premises’ condition posed a genuine risk of serious injury,
both due to a collapse of the structure and by depriving upper-floor residents of a
means of egress during a fire. Given these facts, the ultimate fine was far less than
the maximum called for under the Property Maintenance Code.


             The goal behind the Property Maintenance Code’s daily accruing fines
is to motivate property owners to work diligently to remedy ongoing violations as
quickly as possible. Cf. Com. v. Church, 522 A.2d 30, 34 (Pa. 1987) (purpose of a
fine is “to punish violators and to deter future or continued violations”) (citation
omitted). In light of the serious safety risk posed by the unsecure fire escape and
cracked exterior wall, and the significantly larger fine authorized by the Code, we
discern no abuse of discretion by the Trial Court in imposing a fine of $40,000 here.


                                  III. Conclusion
             For the foregoing reasons, we affirm the Trial Court’s order.


                                              ______________________________
                                              J. ANDREW CROMPTON, Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

City of Philadelphia                   :
                                       :
        v.                             :   No. 916 C.D. 2019
                                       :
Horizon House, Inc.,                   :
                         Appellant     :


                                     ORDER

             AND NOW, this 10th day of July 2020, the order of the Philadelphia
County Court of Common Pleas is AFFIRMED.


                                           ______________________________
                                           J. ANDREW CROMPTON, Judge
