               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                   :
                                               :
              v.                               :
                                               :
Charles E. Eckenrode,                          :   No. 673 C.D. 2015
                  Appellant                    :   Argued: November 16, 2015

BEFORE:       HONORABLE BERNARD L. McGINLEY, Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McGINLEY                                  FILED: January 29, 2016

              Charles E. Eckenrode (Eckenrode) appeals from an April 7, 2015,
order (Order) of the Court of Common Pleas of Allegheny County (Trial Court)
which adjudicated Eckenrode guilty and assessed fines against Eckenrode totaling
$15,000 plus costs.1
                                           FACTS
              Eckenrode owns a home at 343 Lawn Street in the Oakland section of
the City of Pittsburgh, which he leases to tenants. This dwelling is the subject of
the current controversy. The dwelling was zoned as a single family residence.
Hearing Transcript, (N.T.) November 18, 2014, at 92, 106-107; see also Opinion at
2, Reproduced Record (R.R.) at 220a. A certificate of occupancy was not required
if a dwelling is used as a single family residence. Under Title 9, Section 926.72 of


1
  After a timely appeal by Eckenrode to this Court, the Trial Court issued its June 24, 2015
opinion (Opinion) in support of its Order. That Opinion affirmed the decision of the Magisterial
District Judge (MDJ) which found Eckenrode guilty of violations of the Zoning Code of the City
of Pittsburgh (Zoning Code) and the Building Code of the City of Pittsburgh (Building Code).
the Zoning Code (Section 926), a family was defined as “[a] group of not more
than three (3) persons who need not be related by blood or marriage or adoption.”
(Emphasis added.) Zoning Code, Title 9, Section 926.72, R.R. at 302a. When the
use of the dwelling changes, the Zoning Code required the owner of the dwelling
to file an application for a certificate of occupancy. See Zoning Code, Title 9,
Sections 922.02.A(2), 922.02.D(2), R.R. 304a.2 It was undisputed that six (6)
unrelated persons resided in Eckenrode’s dwelling. N.T. at 18-19, 27.


               Subsequently, the City of Pittsburgh notified Eckenrode that there was
a changed-use to the dwelling in issue and directed Eckenrode to apply for a
certificate of occupancy because of that change in use.                        Private Criminal
Complaint, Commonwealth of Pennsylvania, Allegheny County, Commonwealth
v. Charles E. Eckenrode (Private Criminal Complaint); see also R.R. at 299a-300a.
Eckenrode failed to comply and was charged. A hearing was held on November
18, 2014, and thereafter Eckenrode was found guilty by the Trial Court on April 7,
2015. April 7, 2015 Order. See also, R.R. at 2a. This appeal followed.3


       2
          Title 9, Section 922.02.A(2) of the Zoning Code states in pertinent part that “[a]
Certificate of Occupancy shall be required for the lawful use or occupancy of all land, structures
or premises, or parts thereof, in all of the following circumstances …[such as] … [a] new or
changed use of land or new or changed use of structure." Zoning Code, Title 9, Section
922.02.A(2).
        Title 9, Section 922.02.D(2) of the Zoning Code states in pertinent part that “[a]n
application for a Certificate of Occupancy shall be submitted ... [at] the time of a change in use
of land or structure." Zoning Code, Title 9, Section 922.02.D(2).
        3
          This Court’s scope of review of the trial court's determination on appeal from a
summary conviction is limited to whether there has been an error of law or whether competent
evidence supports the trial court's findings. Commonwealth v. Hall, 692 A.2d 283 (Pa. Cmwlth.
1997); see also Commonwealth v. Nicely, 988 A.2d 799 (Pa. Cmwlth 2010). When the
constitutionality of a zoning ordinance is challenged, there is a presumption that the ordinance is
valid and the party challenging its validity has a heavy burden to prove that it is unconstitutional.
Farley v. Zoning Hearing Board of Lower Merion Township, 636 A.2d 1232, 1236 (Pa. Cmwlth.
1994).



                                                 2
                                            ISSUES
               On appeal to this Court, Eckenrode argues that: the Trial Court erred
in convicting Eckenrode of violating Title 9, Section 922.02, of the Zoning Code
because there was no requirement under the Zoning Code to apply for an
occupancy permit for a single family dwelling in the City of Pittsburgh; Eckenrode
was convicted under a non-existent section of the Zoning Code;4 and that
Eckenrode’s conviction (of a violation of Section 926) violated the equal
protection and due process provisions of the Fourteenth Amendment of the United
States Constitution (14th Amendment) as being clearly arbitrary and unreasonable
and having no substantial relation to the public health, safety, morals or general
welfare.


               It is well-established that zoning legislation is economic and social
legislation. See Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). An ordinance
is valid if it promotes public health, safety, or welfare and its provisions are
rationally-related to the purpose it is to serve.5              Layne v. Zoning Board of


       4
           The non-existent Zoning Code section cited in the current controversy is ostensibly
Title 10, Section 111.1 of the Zoning Code.
         5
           Equal protection challenges are reviewed by the United States Supreme Court under
strict scrutiny, intermediate scrutiny and a rational basis scrutiny. See e.g., Rogin v. Bensalem
Township, 616 F. 2d 680 (3rd Cir., 1980). Under a strict scrutiny challenge, the test is whether
the challenged classification is necessary to accomplish a compelling state interest and is
reserved for discriminations based on race, national origin, alienage, and for classifications made
on account of the exercise of a constitutional right by one of the two classes. Rogin v. Bensalem
Township, 616 F.2d at 687 n. 29.
         Under an intermediate scrutiny, the test is whether the discrimination substantially
furthers the achievement of an important governmental objective. The application of an
intermediate scrutiny has thus far only been applied to classifications based on gender or
illegitimacy. Rogin v. Bensalem Township, 616 F.2d at 687 n. 29.
         However, under a rational basis scrutiny, the United States Supreme Court has accorded
great deference to the legislative decision to establish the challenged classification when it
affects business or other economic activity. See Vance v. Bradley, 440 U.S. 93 (1979). In
(Footnote continued on next page…)

                                                3
Adjustment of Pittsburgh, 460 A.2d 1088 (Pa. 1983); see Muscarella v.
Commonwealth, 87 A.3d 966, 973 (Pa. Cmwlth. 2014). The lack of any rational
relationship to a legitimate governmental purpose must be obvious, Layne, 460
A.2d at 1088, and if validity of the zoning ordinance provision is debatable, the
zoning provision must be upheld. Lynch Community Homes, Inc. Appeal, 554
A.2d 155 (Pa.Cmwlth. 1989).


               The issues of whether Eckenrode failed to apply for an occupancy
permit for a single family dwelling in Pittsburgh; whether Eckenrode was
convicted under a non-existent section of the Zoning Code; and whether
Eckenrode’s conviction under Section 926 violated the equal protection and due
process provisions of the 14th Amendment as being clearly arbitrary and
unreasonable and having no substantial relation to the public health, safety, morals
or general welfare were raised and argued before the Trial Court and ably disposed
of in the comprehensive and well-reasoned opinion of the Honorable Robert C.
Gallo, S.J. of the Court of Common Pleas of Allegheny County.



(continued…)

Vance, the Court held that “we will not overturn such a statute [affecting an economic activity]
unless the varying treatment of different groups or persons is so unrelated to the achievement of
any combination of legitimate purposes that we can only conclude that the legislature’s actions
were irrational.” Vance v. Bradley, 44 U.S. at 97.
        In recent years, the United States Supreme Court has rejected a supervisory role in due
process as applicable to zoning laws and now applies “virtually the same standard” of review
under the due process clause as it does in equal protection cases involving economic
classifications. Rogin v. Bensalem Township, 616 F.2d at 689 (citations omitted). “[T]he law
need not be in every respect logically consistent with its aims to be constitutional. It is enough
that there is an evil at hand for correction and that it might be thought that the particular
legislative measure was a rational way to correct it.” Williamson v. Lee Optical Co., 348 U.S.
483, 487-88 (1955).




                                                4
            Therefore, this Court shall affirm the Trial Court’s Order of April 27,
2015 based upon Senior Judge Gallo’s June 24, 2015, Opinion in support of his
April 27, 2015 Order. Commonwealth of Pennsylvania v. Charles E. Eckenrode,
Criminal Division No. CL/SA 2060-14, filed June 24, 2015.




                                     ____________________________
                                     BERNARD L. McGINLEY, Judge




                                        5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania          :
                                      :
            v.                        :
                                      :
Charles E. Eckenrode,                 :   No. 673 C.D. 2015
                  Appellant           :

                                 ORDER

            AND NOW, this 29th day of January, 2016, the Order of the Court of
Common Pleas of Allegheny County in the above-captioned matter is affirmed.




                                      ____________________________
                                      BERNARD L. McGINLEY, Judge
