         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Shenandoah                    :
                                         :
            v.                           :
                                         :
Carlos Matilde Cruz,                     :   No. 715 C.D. 2016
                  Appellant              :   Submitted: December 12, 2016


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                            FILED: May 22, 2017

            Carlos M. Cruz (Appellant) appeals from an order of the Court of
Common Pleas of Schuylkill County (trial court) which granted a permanent
injunction to the Borough of Shenandoah (Borough) on March 4, 2016. Upon
review, we affirm.
            Appellant is the owner of real property located in the Borough at West
Coal and Race Streets (Race Street property). The Race Street property consists of
three contiguous row homes attached to the rear of a three-story building. The
Race Street property was initially purchased by Appellant’s brother and sister-in-
law in September 2012 by means of a tax sale. In July 2014, the structural
integrity of the buildings failed and the walls and roof of the buildings collapsed.
This resulted in a sewer line break on the premises, which caused sewage to collect
in the basement. The Borough initiated an enforcement action against Appellant’s
brother and sister-in-law for maintaining a dangerous building in violation of a
Borough ordinance.          Following hearings before the magisterial district judge,
Appellant’s brother and sister-in-law were found guilty of the ordinance violations
in April 2015. They did not appeal these findings.
                Shortly thereafter, on May 21, 2015, Appellant took ownership of the
Race Street property by means of a quitclaim deed for consideration of one dollar.
The Borough sent a notice to Appellant that, prior to transfer of ownership, a
signed and notarized statement was required confirming Appellant had received
notice of the ordinance violations and that he acknowledged full responsibility for
those violations.
                On December 11, 2015, the Borough initiated an action in equity
pursuant to the Neighborhood Blight Reclamation and Revitalization Act1 (Act)
and Section 1202 of the Borough Code.2 A Petition for Preliminary Injunction was
filed by the Borough on December 21, 2015. Following a hearing, the preliminary
injunction was granted by the trial court on February 9, 2016. A second hearing
was held on March 4, 2016, and the trial court entered an order making permanent
the preliminary injunction and directing the demolition of the structures on the
Race Street property.           Appellant filed with the trial court a Petition for
Stay/Supersedeas of the permanent injunction.                 The Supersedeas was granted,
conditioned upon Appellant posting a bond in the amount of $75,000.00.
Appellant failed to post any such bond. This appeal followed.3,4

       1
           53 Pa.C.S. §§ 6101-6145.

       2
           8 Pa.C.S. §§ 1202.

       3
          When reviewing a grant of a permanent injunction which turns on whether the lower
court properly found the party seeking the injunction established a clear right to relief as a matter
of law, the standard of review for a question of law is de novo and the scope of review is plenary.

                                                 2
                                        DISCUSSION

               As set forth in Appellant’s brief, the following issues are raised with
this Court:

               (1) Whether the trial court erred as a matter of law in finding
                   that the Appellee established it’s [sic] clear right to relief
                   by clear and convincing evidence where it failed to prove
                   basic statutory elements of it’s [sic] case.

               (2) Whether the trial court erred as a matter of law by ordering
                   the immediate demolition of the property in question and
                   not providing Appellant with reasonable time to make
                   repairs or make the property otherwise conform to law at
                   his own expense.
               (3) Whether the demolition of the property in question is an
                   over broad remedy where a more appropriate remey [sic]
                   could be devised.

               (Appellant’s Brief at 5.)

               First, Appellant argues the trial court erred in finding the Borough
established its clear right to relief. (Appellant’s Brief at 14.) Appellant contends
the record fails to demonstrate he is the owner of the property in question, and fails

Penn Square General Corporation v. County of Lancaster, 936 A.2d 158, 167 n.7 (Pa. Cmwlth.
2007).

       4
         It is not clear from the record in this case whether Appellant filed post-trial motions, as
required by Pa.R.C.P. No. 227.1. The Borough has not raised the lack of post-trial motions in its
brief. Pursuant to Rule 227.1, a party must file post-trial motions at the conclusion of a trial in
any type of action in order to preserve claims the party wishes to raise on appeal. Even where
neither party has raised a failure to preserve issues for review by not filing post-trial motions
pursuant to Pa.R.C.P. No. 227.1, that failure does not prevent this Court from doing so sua
sponte. Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). Given the
lack of clarity in the record here, we decline to raise the issue sua sponte and will address the
merits of Appellant’s arguments.

                                                 3
to show he was served with an order to abate the nuisance and provided the
requisite six months in which to correct any violation. Id. at 15-16.
             Section 6111(1)(i) of the Act provides a municipality may institute an
action for a “continuing violation for which the owner takes no substantial step to
correct within six months following receipt of an order to correct the violation,
unless the order is subject to a pending appeal before the administrative agency or
court.” 53 Pa.C.S. § 6111(1)(i). An injunction is an extraordinary remedy that
should be used with caution and only where the rights and equity of the petitioner
are clear and free from doubt and the harm to be remedied is great and irreparable.
Woodward Township v. Zerbe, 6 A.3d 651, 658 (Pa. Cmwlth. 2010). The required
elements of injunctive relief are: a clear right to relief; an urgent necessity to avoid
an injury that cannot be compensated in damages; and a finding that greater injury
will result from refusing, rather than granting, the relief requested. Big Bass Lake
Community Association v. Warren, 950 A.2d 1137, 1144 (Pa. Cmwlth. 2008).
Even where the essential prerequisites of an injunction are satisfied, the court must
narrowly tailor the remedy to abate the injury. Id. at 1144-1145.
             An injunction which commands the performance of an affirmative act,
a mandatory injunction, is the rarest form of injunctive relief and is often described
as an extreme remedy. Woodward Township, 6 A.3d at 658. The case for a
mandatory injunction must be made by a very strong showing, one stronger than
that required for a restraining-type injunction. Big Bass Lake, 950 A.2d at 1145.
The power to grant or refuse an injunction rests within the sound discretion of the
court under the circumstances and the facts of the particular case. Id.
             As to Appellant’s suggestion the record from the trial court fails to
demonstrate he is the owner of the Race Street property, the Borough filed its


                                           4
complaint against Appellant on December 11, 2015. (Reproduced Record (R.R.) at
2a.) Paragraph 4 of that complaint avers that at all times material to the cause of
action, Appellant was and still is the owner of real property located at West Coal
and Race Streets, Shenandoah, Schuylkill County, Pennsylvania 17976.                      Id.
Attached to the complaint as Exhibit “A” was the quitclaim deed conveying the
Race Street property to Appellant. (R.R. at 11a.) To date, Appellant has failed to
file a responsive pleading to this complaint. As such, the allegations of ownership
were deemed admitted by operation of Pa.R.C.P. No. 1029(b).5
              Because Appellant cannot legitimately argue he is not the owner of
the Race Street property, we turn to the issue of whether the Borough complied
with the procedural requirements of Section 6111(1)(i) of the Act.
              The Borough’s complaint contains several averments, including the
following:

              1. Appellant spoke to the Borough Manager on seven separate
                 dates in 2014 and Appellant admitted the Race Street
                 property needed to be demolished and indicated he would
                 get the work done, specifically demolishing the Race Street
                 property and repairing the sewer lines. (R.R. at 4a.)
              2. A notice of violation dated December 17, 2014, was mailed
                 to Appellant’s brother and sister-in-law. (R.R. at 5a.)

              3. Appellant, acting on behalf of his brother and sister-in-law,
                 contacted the Borough regarding the notice of violation and
                 attempted to resolve same. (R.R. at 5a.)

              4. A citation was issued against Appellant’s brother and sister-
                 in-law on September 28, 2014 for violation of the Borough
                 Code. (R.R. at 5a.)

       5
         “Averments in a pleading to which a responsive pleading is required are admitted when
not denied specifically or by necessary implication.” Pa.R.C.P. No. 1029(b).

                                              5
             5. Appellant attended the resultant hearings on behalf of his
                brother and sister-in-law. (R.R. at 5a.)

             6. Appellant requested a meeting with the Borough Council to
                discuss resolution of the nuisance. (R.R. at 6a.)

             Because Appellant has not filed a responsive pleading to these
averments, they are deemed admitted pursuant to Pa.R.C.P. No. 1029(b). A review
of the record further indicates Appellant had well more than the requisite six
months’ time in which to remediate violations of which he was well aware.
Pursuant to Section 6111(1)(i), however, the six-month period would only begin to
run after the receipt of an order to correct the violation. Presumably, an order was
issued by the magisterial district judge after Appellant’s brother and sister-in-law
were found guilty of violating the Borough ordinance. However, there is no
evidence of record to indicate Appellant received a copy of this order or that he
was named in it, an unlikely event given the citation was not issued to him.
             The Borough filed its action in December 2015. The trial court’s
order granting the Borough’s preliminary injunction was issued on February 9,
2016. (R.R. at 55a.) Given the complaint was filed prior to Appellant being in
receipt of an order to correct the violation, it is clear the six month remediation
period required under Section 6111(1)(i) was not met.
             Our analysis does not end there, however, because the complaint filed
by the Borough was also brought under the provisions of the Borough Code, more
specifically under Section 1202(4). Section 1202 of the Borough Code sets forth
the specific powers of the Borough. Subsection (4) grants a borough the specific
power to “prohibit and remove any nuisance or dangerous structure on public or
private grounds, including, but not limited to, accumulations of garbage and
rubbish… The borough may… seek relief by bill in equity.” 8 Pa.C.S. § 1202(4).

                                         6
Section 1202 contains no language regarding receipt of an order by the property
owner prior to the initiation of an action.
               Appellant argues the Borough failed to plead and litigate the
enforcement of a specific ordinance and therefore a clear right to relief could not
be demonstrated. He asserts Section 1202(4) must be “used in conjunction with
Section 1202(5) of the Borough Code to enforce the specific ordinances passed
under the Code’s authority.” (Appellant’s Brief at 18.) Citing Borough of New
Bloomfield v. Wagner, 35 A.3d 839 (Pa. Cmwlth. 2012), Appellant argues the
Borough has not shown that Appellant violated a specific section of the Borough’s
property code and, therefore, the underlying equity action was based merely on an
allegation that the Race Street property at issue was a nuisance. (Appellant’s Brief
at 19.) Appellant points to City of Beaver Falls v. Samuels, 414 A.2d 676 (Pa.
Super. 1979) as standing for the proposition that, where no ordinance was cited by
the city when it sought relief, an equity suit is not authorized.
               It is not clear how this Court’s holding in Borough of New Bloomfield
assists Appellant as that case involved the validity of an ordinance adopted
pursuant to Section 1202(5)6 and not an analysis of what must be pleaded when
initiating an action under Section 1202(4). Appellant’s interpretation of Beaver
Falls is based on a footnote of that case, which in pertinent part states “[t]he
section in question there, 53 P.S. [§] 46202(5)7, is the parallel to [§] 37403(16)8 of
       6
        Subsection (5) grants the Borough the specific power to “make regulations as may be
necessary for the health, safety, morals, general welfare and cleanliness and beauty, convenience,
comfort and safety of the borough.” 8 Pa.C.S. § 1202(5).

       7
        Act of February 1, 1966, P.L. (1965) 1656, as amended, formerly 53 P.S. § 46202,
repealed and reenacted by the Act of April 18, 2014, P.L. 432, effective June 17, 2014, 8 Pa.C.S.
§ 1202.



                                                7
the Third Class City Code and only contemplates an equity action in conjunction
with an ordinance.” Beaver Falls, 414 A.2d at 678 n.2. While the court in Beaver
Falls referenced the statutory precursor to Section 1202(4), the case itself turned
on an interpretation of a different, and likewise-repealed, provision of the Borough
Code. Because the passage in that particular footnote was not necessary to the
outcome of the case, it merely constitutes non-binding dicta. See In the Interest of
L.J., 79 A.3d 1073, 1081 (Pa. 2013). To the extent this footnote is persuasive, the
complaint filed by the Borough sufficiently pleads a violation of the Borough
ordinance.
              The citation issued to Appellant’s brother and sister-in-law sets forth a
violation of Section 4, Subsection 102 of the Borough’s Ordinance. The nature of
the offense is described in the citation as involving “dangerous buildings that are
declared to be a nuisance that the owner has failed to repair, vacate, or demolish
after receiving letter.”    (R.R. at 25a.)       As discussed above, this citation was
attached to the complaint filed by the Borough. The complaint included averments
that Appellant had multiple conversations with the Borough manager in regards to
the condition of the Race Street property. Appellant was aware of the citation filed
against his brother and sister-in-law and attended the hearing before the magisterial
district judge on their behalf, and requested a meeting with the Borough Council to
discuss resolution of the nuisance. Appellant took possession of the Race Street
property knowing it had been declared a nuisance.
              We therefore conclude the complaint filed by the Borough complied
with any pleading requirements set forth in Section 1202(4) of the Borough Code.

       8
         Act of June 23, 1931, P.L. 932, as amended, formally 53 P.S. § 37403, as codified by
the Act of November 24, 2015, P.L. 242, effective January 25, 2016, 11 Pa.C.S. § 12403.

                                             8
The Borough has therefore established it has a clear right to relief under Section
1202(4) to “require the removal of any nuisance or dangerous structure by the
owner… or… seek relief by bill in equity.”
             Appellant next argues he was not given reasonable time to bring the
Race Street property into compliance following the trial court’s order to demolish,
as the trial court ordered him to abate the nuisance immediately. (Appellant’s
Brief at 22.) Appellant’s argument is presumably premised upon a belief that the
buildings situated on the Race Street property are salvageable.
             The trial court’s order dated March 4, 2016 indeed directed the
property be demolished immediately, and ordered Appellant to remove all
accumulated raw sewage and repair the broken sewer line within fifteen days.
(R.R. at 59a.) If Appellant failed to demolish the buildings within three days of the
date of the order, the Borough was permitted to take the steps necessary to do so.
Id. We can only assume the trial court’s order did not allow for more time to bring
the Race Street property into compliance because such compliance was not
possible. Appellant has offered nothing contrary to this conclusion.
             When it is determined that a public nuisance exists, the courts should
not devise a remedy harsher than the minimum necessary to properly abate the
nuisance. Groff v. Borough of Sellersville, 314 A.2d 328, 332 (Pa. Cmwlth. 1974).
The remedy selected to abate the nuisance should not be punitive; rather, it should
be shaped to correspond to the nature and extent of the nuisance. King v. Township
of Leacock, 552 A.2d 741, 744 (Pa. Cmwlth. 1989).           The radical remedy of
demolition should only be used when there exists no other practical alternative. Id.
             Appellant failed to appear for the February 9, 2016 hearing on the
Borough’s Petition for Preliminary Injunction, despite having been served with a


                                         9
notice of the date of the hearing. (R.R. at 65a-66a, 82a-86a.) At the March 4,
2016 hearing to make the injunction permanent, Appellant was provided an
opportunity to testify on his own behalf but chose not to, stating that he would
“close the process and [be] done with whatever has to go on today.” (R.R. at
205a.)   Therefore, the testimony and evidence presented at the February 9, 2016
and March 4, 2016 hearings as to derelict conditions of the Race Street property
were uncontroverted.
             Donald Segal (Segal), president of the Borough Council, testified to
the nature of complaints about the Race Street property, specifically that the
building was falling down, animals were roaming the building, and there was a
smell from raw sewage that had been dumping from the property. (R.R. at 70a.)
The raw sewage was “through the entire property.” Id. at 72a.
             Irene Kudel (Kudel), whose property lies adjacent to the Race Street
property, testified at the March 4, 2016 hearing as to the conditions of that property
and the presence of rats, snakes and skunks. (R.R. at 184a.) Debris from the Race
Street property had encroached on her property to the extent she could no longer
mow the grass by her fence. Id. The smell from the broken sewer line was evident
inside her home, even during the wintertime. Id. at 183a. She used her son’s
smoker in the summer months so she could “smell the wood instead of the crap.”
Id.
             Another neighbor, James Paulaconis (Paulaconis), testified he had
lived in his home for forty years but was “ready to move because [he wasn’t] going
to retire next to an open sewer with a building that looks like it belonged in Syria
ready to fall on the street” and his property along with it.         (R.R. at 175a.)
Paulaconis testified the sewer collapsed around the time the roof fell in, “a year


                                         10
and a half ago.” Id. Based on that uncontested time line, raw sewage has been
filling the property for the better part of three years. Paulaconis described a “hole
in the roof the size of a Volkswagen that’s been in there forever and the rain and
the mold and everything just pours right into that lower property.” Id. at 177a. He
testified to having spent $11,000.00 on a patio he was ashamed to have people on
in the summertime because of the smell from the Race Street property. Id. at 176a.
             It is likewise apparent Appellant was provided several opportunities to
abate the nuisance conditions at the property and simply chose not to. Having
spoken multiple times with the Borough manager in 2014 and represented his
brother and sister-in-law in proceedings before the magisterial district judge,
Appellant had clear knowledge of the conditions prior to his acquisition of the
Race Street property in May 2015. Following that acquisition, by letter dated
September 21, 2015, Appellant was notified by the Borough that transfer of the
property was made in violation of Section 107.6 of the International Property
Maintenance Code, which prohibits the transfer of property upon which a Notice of
Violation has been issued. (R.R. at 27a.) This letter notified Appellant that, to
transfer property against which a violation has been issued, a signed and notarized
statement must be provided which acknowledges responsibility for the violations.
Id. Appellant was further notified the Borough required his assurances that he
would make the necessary corrections and abate the violations. Id. This letter was
mailed via certified mail and was signed for by Appellant on September 26, 2015.
Id. at 28a. Segal testified he worked with Appellant close to ten months in an
attempt to get the nuisance conditions abated. (R.R. at 69a.)
             The trial court’s February 9, 2016 order granting the preliminary
injunction provided Appellant fifteen days from the date of the order to arrange for


                                         11
the demolition of the premises. (R.R. at 57a.) Appellant instead “spent a lot of
time at [his] mother’s house in Jersey.” (R.R. at 166a.)
             Kudel testified that the last time she saw Appellant was in June 2015.
(R.R. 189a.) Appellant admitted the last date he was at the Race Street property
was June 10, 2015. (R.R. at 170a.) Paulaconis testified some preliminary work
was done when the roof collapsed to keep the overhang from falling into the street.
Id. at 176a. Otherwise, he observed Appellant removing “some radiators” from the
property and replacing them with construction debris and tires. Id.
             The record is replete with evidence to support demolition of the
structures on the Race Street property. Appellant has provided no details about
how he would bring the property into compliance, only argued he was not given
that opportunity. The record speaks otherwise. Appellant has done nothing to
remediate the conditions at the Race Street property since it was conveyed to him
nearly two years ago. This case can be most likened to City of Erie v. Stelmack,
780 A.2d 824 (Pa. Cmwlth. 2001), in which this Court upheld the trial court’s
order granting the city’s request to demolish an apartment building. The trial court
noted what repairs had been made to the building and the numerous opportunities
given to appellant to bring the building up to code and which were ignored.
Instantly, the trial court did not err in ordering the demolition of rat- and snake-
infested structures filled with several years’ worth of raw sewage and which border
occupied homes.
             Finally, Appellant argues the remedy ordered by the trial court was
overly broad and unduly oppressive upon the Appellant. (Appellant’s Brief at 28.)




                                         12
            Having already concluded no practical alternative exists but to
demolish the structures on the Race Street property, we need not address this
argument a second time.
            For these reasons, the March 4, 2016 order of the trial court is
affirmed.




                                   ___________________________
                                   JOSEPH M. COSGROVE, Judge




                                     13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Borough of Shenandoah                  :
                                       :
            v.                         :
                                       :
Carlos Matilde Cruz,                   :   No. 715 C.D. 2016
                  Appellant            :



                                  ORDER


            AND NOW, this 22nd day of May, 2017, the March 4, 2016 order of
the Court of Common Pleas of Schuylkill County is affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
