                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania,                   :
City of Reading, Pennsylvania                   :
Property Maintenance/Building Codes             :
                                                :
                      v.                        :
                                                :   No. 1865 C.D. 2017
Raymond G. Gehring,                             :   Nos. 1933, 1934, 1935, 1936 C.D. 2017
                              Appellant         :   Submitted: August 3, 2018


BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                         FILED: October 26, 2018

               Raymond G. Gehring (Gehring) appeals, pro se, from the Berks County
Common Pleas Court’s (trial court) November 15, 2017 orders finding Gehring guilty
of five summary offenses for violating the Property Maintenance Code of City of
Reading (Reading), Pennsylvania (Code). Essentially, Gehring presents two issues
for this Court’s review: (1) whether Reading proved that Gehring received notice of
the violations before he received the citations therefor; and, (2) whether Gehring was
given a fair and impartial hearing.1 After review, we vacate and remand.
               Gehring owns property located at 1043 Cotton Street in Reading,
Pennsylvania (Property). On February 11, 2017, Reading Code Enforcement Officer
Bruce McAfee (McAfee) visited the Property and observed a violation of Section

       1
          Gehring presented six issues for this Court’s review, all of which either restate the above
issues or are subsumed in the above-stated issues. See Gehring Br. at 4. Reading contends that two
of the six questions Gehring presented, i.e., relating to “substantial question” and “cover-up”, are
waived for various reasons. Reading Br. at 13 n.3. As this Court does not decide either of those
issues, we need not address waiver.
301.3.1 of the Code (related to exterior conditions), and a violation of Section
304.13.1 of the Code (related to windows). McAfee issued citations for the violations
at that time. On April 13, 2017, McAfee again visited the Property and observed
continuing violations of Sections 301.3.1 and 304.13.1 of the Code, and a violation of
Section 304.2 of the Code (related to protective treatment of exterior surfaces).
McAfee issued citations for the violations at that time. Gehring appealed from the
citations to the trial court. On November 15, 2017, the trial court held a de novo
hearing and, at the conclusion thereof, found Gehring guilty of all five violations.
Gehring appealed to this Court.2
              Initially, Section 106.1 of the Code provides: “It shall be unlawful for a
person, firm or corporation to be in conflict with or in violation of any of the
provisions of this [C]ode.”         Reading Code §106.1.          Section 106.2 of the Code
requires: “The [C]ode official shall serve a notice of violation or order in
accordance with Section 107 [of the Code].” Reading Code § 106.2 (emphasis
added). Section 107.1 of the Code prescribes:

              Whenever the [C]ode official determines that there has been
              a violation of this [C]ode or has grounds to believe that a
              violation has occurred, notice shall be given in the
              manner prescribed in Sections 107.2 and 107.3 [of the
              Code] to the person responsible for the violation as
              specified in this [C]ode.

Reading Code § 107.1 (emphasis added).3 Section 107.2 of the Code mandates:

              Such notice prescribed in Section 107.1 [of the Code] shall
              be in accordance with all of the following:
              1. Be in writing.

       2
         This Court’s standard of review “of a 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, 284 n.2 (Pa. Cmwlth.
1997).
       3
         Section 107.1 of the Code contains exceptions which are not relevant to the instant matter.
                                                 2
            2. Include a description of the real estate sufficient for
            identification.
            3. Include a statement of the violation or violations and
            why the notice is being issued.
            4. Include a correction order allowing a reasonable
            time to make the repairs and improvements required
            to bring the dwelling unit or structure into compliance with
            the provisions of this [C]ode.
            5. Inform the property owner of the right to appeal as per
            Section 111.1 [of the Code].
            6. Include a statement of the right to file a lien in
            accordance with Section 106.3 [of the Code].

Reading Code § 107.2 (italic and bold emphasis added). Finally, Section 107.3 of the
Code directs:

            Such notice shall be deemed to be properly served if a
            copy thereof is:
            1. Delivered personally;
            2. Sent by certified/first-class mail or email addressed to
            the last known address; or
            3. If the notice is returned showing that the letter was not
            delivered, a copy thereof shall be posted in a conspicuous
            place in or about the structure affected by such notice.
            4.    Service     upon    any    executive     officer  of
            a corporation shall be a sufficient, but not the exclusive
            method of service upon the corporation. Service upon any
            partner of a partnership shall be a sufficient but not the
            exclusive method of service upon the partnership.

Reading Code § 107.3 (emphasis added).
            Gehring argues that Reading never provided notice of the violations
before issuing the citations to him. Representing himself at the hearing, Gehring
attempted to cross-examine McAfee concerning notice.


                                         3
Q [Gehring] . . . . [] McAfee, you stated that you issued a
citation back in 2015, or maybe several.
A [McAfee] I did not say that I issued a citation. I said you
were given notice that it started back in 2015.
Q Notice. Okay. Please forgive me on that. Were you the
one actually doing the notice?
A In 2015, no. It’s a system.
Q Okay. Who did - - -
THE COURT: We’re not here on what happened in 2015.
We’re here on what happened in 2017.
[] GEHRING: Your Honor - - -
THE COURT: He doesn’t have to testify to anything that
happened in 2015 because that’s not -- the citations weren’t
issued then. We’re talking about the citations that were
entered in 2017. I don’t care if you were given a warning or
not.
[] GEHRING: He states that there was a notice given in
2015 - - -
THE COURT: And I don’t care whether it was or not. It
has nothing to do with today.
[] GEHRING: I think it does, Your Honor, if notice was
never received, is what I’m trying to get at.
THE COURT: It doesn’t matter. You’re still in violation.
The [Code] is pretty clear, and nowhere in here does it say
you have to be given a notice first before you’re cited.
[] GEHRING: It says on the citations, Your Honor, that
there was notice given back in 2015.
THE COURT: I don’t care whether the notice was given or
not. He didn’t give the notice. He said that. He said it was
generated through the system, so - - -
BY [] GEHRING:
Q Who does these notices?

                                4
             THE COURT: The system. It generates it, and it’s mailed
             out. So maybe you don’t pick up the mail at that location. I
             don’t know. But let’s talk about the violations.
             [] GEHRING: Well, Your Honor - - -
             THE COURT: Don’t argue with me. I’m telling you, let’s
             talk about the violations, so move onto the violations.
             [] GEHRING: I never received those notices, Your Honor,
             but - - -
             THE COURT: And you can testify - - -
             [] GEHRING: Okay.
             THE COURT: - - - when it’s your turn.
             [] GEHRING: Okay.
             THE COURT: Right now ask him questions. He’s already
             said he didn’t do the notices personally, they were
             generated through the system.
             [] GEHRING: Okay.
             THE COURT: So that’s where we are with the notices.
             [] GEHRING: All right.

Notes of Testimony November 15, 2017 (N.T.) at 13-15.
             However, in its opinion, the trial court acknowledged that it was
incorrect with respect to notice:4

             Upon further review, however, that statement about the
             [Code] is not entirely correct. The Code does at base
             provide that a state of being in violation is by itself illegal:
             ‘It shall be unlawful for a person, firm or corporation to be
             in conflict with or in violation of any of the provisions of
             this [C]ode.’ [Reading Code] § 106.1. But the Code also
             clearly contemplates the issuance of notices of violation.
             See id. at § 106.2 (The [C]ode official shall serve a notice of
             violation or order in accordance with Section 107 [of the
      4
        Although Judge Jill Gehman Koestel presided over the hearing, Judge Madelyn S.
Fudeman authored the opinion.
                                            5
             Code].): id. at § 107.1 (‘Whenever the [C]ode official
             determines that there has been a violation of this [C]ode or
             has grounds to believe that a violation has occurred, notice
             shall be given in the manner prescribed in Sections 107.2
             and 107.3 [of the Code] to the person responsible for the
             violation as specified in this [C]ode.’); id. at § 107.2
             (providing that the notice must ‘[i]nclude correction order
             allowing a reasonable time to make the repairs and
             improvements required to bring the dwelling unit or
             structure into compliance’). And of most direct relevance
             here is the section titled ‘Prosecution of violation[ ]’ which
             provides that ‘[a]ny person failing to comply with a notice
             of violation or order served in accordance with Section 107
             [of the Code] shall be deemed guilty of a summary offense
             and the violation shall be deemed a strict liability offense.’
             Id. at § 106.3. So the summary offenses with which
             [Gehring] was charged are specifically defined as receiving
             notices of violation and then not correcting the defects as
             instructed therein.
Trial Court Op. at 4-5.5 Notwithstanding, the trial court concluded:
                Finding [Gehring] guilty without more conclusive evidence
                that the notices were indeed mailed is tantamount to
                harmless error for at least two reasons. First, truly
                concrete, direct evidence the notices were mailed would
                be difficult or perhaps impossible to adduce. The notices
                are apparently governed by a system with some level of
                automation (‘Were you the one actually doing the notices?
                A: In 2015, no. It’s a system.’ ([N.T. at 14])), and even
                though a specific person is involved in the mailing (‘Does
                the system show who actually mailed the notice? A: It
                should be in there. Yes.’ ([N.T. at 16])), it is unlikely the
                person who did the mailing would have a specific
                recollection of sending out the notices at issue in this case.
                Second, testimony established that [Gehring] did
                actually know that he was in violation for a long period of
                time during which he failed to remedy the condition of the
                [P]roperty. [Gehring] himself testified about the windows
                being broken by gun battles in 2015 and also stated that he
                spoke to someone with [Reading] named Dana Damato ‘in
                January of 2017, prior to all these citations’ ([N.T. at 32]).
       5
           There were five identical trial court opinions filed in this matter, one for each summary
offense.
                                                  6
               And in light of [] McAfee’s testimony about viewing the
               [P]roperty not only on the dates of violation but again the
               day before the summary appeal hearing. [Gehring] agreed
               there was ‘no dispute’ that the [P]roperty was in violation
               on the violation dates and still as of the summary appeal
               hearing ([N.T. at 34]). So whether or not there is absolute
               evidence that the specific notices were mailed, there is
               evidence that [Gehring] knew about the conditions in
               violation for an extremely long period without correcting
               the violations.

Trial Court Op. at 5-6 (emphasis added). This Court cannot agree that finding
Gehring guilty without evidence that he received notice in accordance with the
Code’s mandates and had an opportunity to bring the Property into compliance as the
Code directs is harmless error.
               As explained in Commonwealth v. ATL Associates (Pa. Cmwlth. No.
1374 C.D. 2015, filed August 19, 2016):6

               When a borough chooses to regulate by ordinance, it must
               comply with its provisions. See generally Philipsburg v.
               Way, 12 Pa.D. 173, 174 (1903) . . . . Failure to do so
               deprives the borough of legal authority to exercise
               jurisdiction over the property or the property owner. Id.[;
               s]ee also Moon [Twp.] v. Cammel, 687 A.2d 1181, 1186
               (Pa. Cmwlth. 1997) (noting that district justice properly
               dismissed enforcement citations because property owner
               was not given opportunity to comply with ordinance before
               being cited); [Twp.] of Maidencreek v. Stutzman, 642 A.2d
               600, 602 (Pa. Cmwlth. 1994) (holding that failure of
               township to satisfy notice requirements of the
               Municipalities Planning Code[, Act of July 31, 1968, P.L.
               805, as amended, 53 P.S. §§ 10101-11202,] rendered the
               trial court’s preliminary injunction a nullity).

ATL Assocs., slip op. at 8 (footnote omitted). Here, Section 107.1 of the Code
requires that “notice shall be given in the manner prescribed in Sections 107.2 and


       6
         Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), this unreported opinion is not binding precedent but is cited only for its persuasive value,
as the same rationale clearly applies herein.
                                                  7
107.3 [of the Code.]” Reading Code § 107.1. The fact that “truly concrete, direct
evidence the notices were mailed would be difficult or perhaps impossible to
adduce[,]” or that “testimony established that [Gehring] did actually know that he
was in violation[,]” does not relieve Reading from complying with the Code’s notice
requirements. Trial Court Op. at 5-6. Accordingly, because the trial court precluded
questioning on the notice issue, and the record is void of any evidence demonstrating
notice was furnished as the Code prescribed, this Court is constrained to remand the
matter to the trial court for the limited purpose of determining whether Reading
satisfied the notice requirements mandated in Sections 107.2 and 107.3 of the Code
before the subject citations were issued.7
              In its brief, Reading requests this Court to remand the matter to the trial
court to assess attorney’s fees against Gehring, pursuant to Pennsylvania Rule of
Appellate Procedure (Rule) 2744, for filing a frivolous appeal. See Reading Br. at
19-23. Rule 2744 provides:

              In addition to other costs allowable by general rule or Act
              of Assembly, an appellate court may award as further costs
              damages as may be just, including
              (1) a reasonable counsel fee and
              (2) damages for delay at the rate of 6% per annum in
              addition to legal interest,
              if it determines that an appeal is frivolous or taken solely
              for delay or that the conduct of the participant against
              whom costs are to be imposed is dilatory, obdurate or
              vexatious. The appellate court may remand the case to the
              trial court to determine the amount of damages authorized
              by this rule.



       7
        Because the Court is remanding the case for a hearing on the notice issue, it need not
address Gehring’s second issue, as it was based on Gehring’s preclusion from cross-examining
McAfee regarding notice.
                                              8
Pa.R.A.P. 2744.     Given this Court’s disposition of the above issue, this Court
disagrees with Reading that Gehring’s appeal is frivolous. Moreover, given the trial
court’s alternative request for a remand on the notice issue, Reading’s contention that
Gehring’s appeal is frivolous is meritless. See Trial Court Op. at 1, 6. Accordingly,
this request is denied.
             For all of the above reasons, the trial court’s order is vacated and the
matter is remanded to the trial court for a hearing on the notice issue.


                                          __________________________
                                          ANNE E. COVEY, Judge




                                            9
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,                :
City of Reading, Pennsylvania                :
Property Maintenance/Building Codes          :
                                             :
                    v.                       :
                                             :   No. 1865 C.D. 2017
Raymond G. Gehring,                          :   Nos. 1933, 1934, 1935, 1936 C.D. 2017
                           Appellant         :


                                       ORDER

             AND NOW, this 26th day of October, 2018, the Berks County Common
Pleas Court’s November 15, 2017 orders are vacated, and the matter is remanded to
the trial court for a hearing consistent with this opinion.
             Jurisdiction is relinquished.


                                        ___________________________
                                        ANNE E. COVEY, Judge
