          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                 :
                                             :
               v.                            :   No. 742 C.D. 2016
                                             :   Submitted: October 14, 2016
George Cannarozzo,                           :
                             Appellant       :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE JULIA K. HEARTHWAY, Judge
               HONORABLE JOSEPH M. COSGROVE, Judge


OPINION
BY JUDGE SIMPSON                             FILED: March 1, 2017

               George Cannarozzo (Landlord) asks whether the Court of Common
Pleas of Luzerne County1 (trial court) erred in entering a guilty verdict after trial on
summary appeal on 10 of 11 citations issued for violations of the 2012
International Property Maintenance Code (IPMC), adopted by Ordinance Number
7 of 2007 (Ordinance) of West Hazleton Borough (Borough). Landlord contends
the Borough violated his constitutional and statutory rights by entering his property
without his consent and without a warrant. He also asserts the trial court erred in
determining he failed to correct the Ordinance violations to the extent necessary.
Discerning no error below, we affirm.


                                      I. Background
               Landlord owns the property located at 10-12 East Oak Street in West
Hazelton (property), which is improved with a five-unit apartment building. The


      1
          The Honorable Michael T. Vough presided.
Borough’s Code Enforcement Officer (Code Enforcement Officer) first became
aware of violations at the property when contacted by the mother of a tenant who
was moving out.         Tr. Ct. Hr’g, Notes of Testimony, 1/27/16 (N.T. I), at 5;
Reproduced Record (R.R.) at 9a. The Code Enforcement Officer subsequently
visited and inspected the subject property. N.T. I at 5-6; R.R. at 9a-10a. One of
Landlord’s tenants allowed the Code Enforcement Officer entry into the property.
Id. Upon inspection, the Code Enforcement Officer “jot[ted] down everything that
was found,” and she took pictures. Id.


               Thereafter, the Code Enforcement Officer issued notices of violation
to Landlord by certified and regular mail. The post office returned the certified
mail items as undeliverable. N.T. I at 11; R.R. at 11a. The notices of violation
described 11 violations the Code Enforcement Officer observed when she
inspected the property.2 N.T. I at 13-22, 29-36; R.R. at 11a-14a, 15a-17a.


               The issuing authority found Landlord guilty on each of the 11
violations. See R.R. at 1a (docket entry). Thereafter, Landlord appealed to the
trial court.




       2
         The 11 violations of the Ordinance were identified in the notices. The violations
encompassed missing or ripped screens throughout the property; lack of a working door knob on
the main entrance; a hole in a living room wall; lack of a ground fault interrupter electrical outlet
in a kitchen; ungrounded electrical outlets; a loose electrical outlet; a non-working shared-
hallway light; missing light covers throughout the property; missing smoke detectors, fire
extinguishers and carbon monoxide monitors throughout the property; a leaking toilet; a
compromised floor surrounding the leaking toilet, and removal of a “condemnation” placard
from the front door of the property. N.T. I at 13-21, R.R. at 11a-13a.



                                                 2
              After presentation of the Borough’s evidence at the first trial court
hearing (First Hearing), the trial court allowed the parties time to resolve the
matters by permitting Landlord to make repairs and show compliance through a
follow-up inspection by the Code Enforcement Officer. N.T. I at 36-37; R.R. at
17a. At that time, the parties agreed to a follow-up inspection on February 3, 2016.
Tr. Ct. Hr’g, Notes of Testimony, 4/6/16 (N.T. II), at 3-5, 7, 21; R.R. at 78a, 79a,
82a. As a result, at the end of the First Hearing, the trial court held the record open
and retained jurisdiction. N.T. I at 36-37; R.R. at 17a.


              At the request of the parties, the trial court reconvened in April 2016
(Second Hearing). At the Second Hearing, the trial court questioned Landlord as
to why he never appeared for the agreed-upon re-inspection. Landlord asserted he
was unaware of the appointment scheduled for February 3, 2016. Landlord asked
for another appointment to allow inspection. The trial court denied that request.
Ultimately, the trial court concluded the Borough established Landlord violated the
Ordinance on 10 of the charges, and it fined him $200 plus costs on each of the 10
violations.3 N.T. II at 3-5, 7, 21-29; R.R. at 78a, 79a, 82a-84a. Landlord appealed
to this Court.


              Thereafter, the trial court issued an order requiring Landlord to file a
concise statement of the errors complained of on appeal pursuant to Pa. R.A.P.
1925(b) (1925(b) Statement).         In his 1925(b) Statement, Landlord claimed a
constitutional violation when the Code Enforcement Officer entered the property
       3
          The trial court found Landlord not guilty on the eleventh citation (removing the
condemnation placard from the front door of the property). Tr. Ct. Hr’g, Notes of Testimony,
4/6/16, at 28-29.



                                             3
without his consent and without a warrant. Landlord also asserted he corrected the
violations to the extent necessary, and the trial court erred to the extent that it
found to the contrary.4


               In its subsequent opinion pursuant to Rule 1925(a), the trial court
concluded that Landlord did not ask the court to make a ruling on whether the
Code Enforcement Officer’s initial entry was unlawful; therefore, the issue was
waived. The trial court also observed the issue “could have been addressed had
[Landlord] filed a suppression motion. His failure to do so also results in waiver.”
Tr. Ct., Slip Op., 6/30/16, at 2.


               The trial court further quoted Section 104.3 of the IPMC, entitled
“Right of Entry.” That Section provides that when a code official has reasonable
cause to believe that a structure contains a condition that violates the IPMC, the
code official may go to the structure and request entry from an occupant. The trial
court determined that the Code Enforcement Officer became aware of violations at
the property and was allowed to enter the property by a tenant. Id. The trial court
concluded this course of action complied with Section 104.3 of the IPMC. Id.


               In response to Landlord’s second assignment of error, the trial court
explained that the parties agreed upon a meeting at the property on February 3,
2016, to give Landlord the opportunity to demonstrate that the alleged violations
had been remedied. However, Landlord failed to appear for that meeting, so there
       4
         In his 1925(b) Statement, Landlord also questioned whether the Code Enforcement
Officer possessed the requisite training and experience to issue citations; however, that issue is
not pursued in the current appeal.



                                                4
was no way for the Code Enforcement Officer to determine if compliance had
occurred. The only credible evidence before the court was of Landlord’s guilt;
evidence of compliance was not credible. Id. at 2-3. The trial court asked this
Court affirm its ruling on the citations.


                                         II. Issues
              On appeal,5 Landlord raises two issues. First, he asserts the trial court
erred in determining there was no constitutional violation when the Code
Enforcement Officer entered his property without his consent and without a
warrant. Second, Landlord argues the trial court erred in determining Landlord
failed to correct the alleged code violations to the extent necessary.


                                  III. Discussion
                        A. Unreasonable Search/Illegal Entry
              We seriously question whether the constitutional issue of an
unreasonable search by the Code Enforcement Officer was fairly put to the trial
court for decision. There was a brief reference by Landlord at the end of the
Second Hearing to a case, “Tobin versus—someone else,” for the proposition that
the Code Enforcement Officer “is not supposed to go in and issue any citations
without the owner’s permission.” N.T. II at 26-27; R.R. 83a-84a. But, neither the
Landlord nor his lawyer offered the full title of the case, offered a copy of the case,
or offered a case citation. Id.




       5
        Our review is limited to determining whether the trial court abused its discretion or
committed an error of law. Commonwealth v. Halstead, 79 A.3d 1240 (Pa. Cmwlth. 2013).



                                             5
             Landlord’s lawyer now argues his client was trying to reference
Commonwealth v. Tobin, 828 A.2d 415 (Pa. Cmwlth.), appeal denied, 841 A.2d
533 (Pa. 2003). Because there was some vague reference to the case before the
trial court, we will examine the extent to which that authority applies here.


             The Ordinance adopted the 2006 version of the IPMC, and all of its
subsequent amendments. N.T. I at 4; R.R. at 9a; Plaintiff’s Ex. Nos. 1-2. Section
104.3 of the 2012 version of the IPMC, entitled “Right of Entry,” provides in
pertinent part (with emphasis added):

                    Where it is necessary to make an inspection to
             enforce the provisions of this code, or whenever the code
             official has reasonable cause to believe that there exists
             in a structure or upon a premises a condition in violation
             of this code, the code official is authorized to enter the
             structure or premises at reasonable times to inspect or
             perform the duties imposed by this code, provided that if
             such structure or premise is occupied the code official
             shall present credentials to the occupant and request
             entry.

R.R. at 27a. Thus, the IPMC allows entry without a warrant upon “reasonable
cause” to believe a violation exists and upon permission of an occupant. Id. If
those two pre-conditions are not met, the code official “shall have recourse to the
remedies provided by law to secure entry.” Id. In other words, in the absence of
“reasonable cause” and permission of an occupant, the code official must obtain a
warrant to enter.


             Here, the Code Enforcement Officer testified that she first became
aware of the violations existing on the property when a tenant’s mother called to


                                          6
complain of Ordinance violations. N.T. I at 5; R.R. at 9a. After arriving at the
property, the tenant allowed the Code Enforcement Officer entrance to the
property. N.T. I at 6; R.R. at 10a. There is no evidence that the Code Enforcement
Officer inspected any part of the building beyond that occupied by the consenting
tenant. As the trial court concluded, this course of action complies with Section
104.3 of the IPMC and the Ordinance.


             In a rental situation, it has long been recognized that the Fourth
Amendment to the U.S. Constitution operates primarily to protect the privacy
interest of the tenant rather than the landlord. See, e.g., Chapman v. United States,
365 U.S. 610 (1961); Commonwealth v. Davis, 743 A.2d 946 (Pa. Super. 1999).
Given the satisfied requirements of “reasonable cause” and consent of an occupant,
we discern no constitutional violation here.


             Moreover, the case vaguely referenced by Landlord, Tobin, does not
compel a different conclusion, for several reasons. First, the inspection ordinance
in Tobin required the code official to obtain either permission of the owner, or a
warrant, and the code official failed to obtain either. Id. at 418-19. Thus, the
ordinance in Tobin was significantly different than the Ordinance here. Second,
there was no consent to entry in Tobin, but there was consent to entry by an
occupant here. For these reasons, the Tobin decision has no applicability to this
case.


             Instead, we conclude that our unreported opinion in Altman v.
Borough of Wilmerding (Pa. Cmwlth., No. 459 C.D. 2014, filed January 8, 2015),



                                         7
2015 WL 5122619 (Simpson, J.), is persuasive.            In Altman, an owner was
prosecuted for property code violations. He raised many defenses, including a
challenge to the constitutionality of the code official’s entry into the property. The
owner relied on the decision in Tobin. However, we declined to apply Tobin
because, like the present case, an occupant consented to the code official’s entry.
Altman, Slip Op. at 16-17; 2015 WL 5122619 at *8. In relevant part, we stated
that the decision in Tobin does not “set forth a bright-line requiring municipalities
to obtain administrative warrants prior to inspecting property for safety purposes.
… In light of evidence of consent to search by the person in possession of the
property, we discern no merit to the improper search challenge.” Altman, Slip Op.
at 17; 2015 WL 5122619 at *8. We reach the same conclusion here.


                               B. Failure to Correct
             Landlord next argues the trial court erred when it determined
Landlord failed to correct the alleged violations. Landlord testified at length at the
Second Hearing regarding the measures he took to remediate the conditions.
Landlord maintains the trial court apparently accepted his testimony on the
eleventh violation, because it found him not guilty as to that violation. Because the
trial court found him not guilty on the eleventh violation, Landlord asserts, the trial
court ignored all of his testimony regarding the measures he took to remediate the
violations, which amounts to an abuse of discretion. Landlord therefore contends
the trial court’s determination that he failed to correct the conditions is not
supported by substantial evidence.


             Where a trial court receives additional evidence in deciding whether a
party committed a summary violation of an ordinance, our review is limited to

                                          8
determining whether the trial court abused its discretion or committed an error of
law. Commonwealth v. Halstead, 79 A.3d 1240 (Pa. Cmwlth. 2013). The trial
court, as the trier of fact passing upon the credibility of witnesses and the weight to
be afforded the evidence presented, is free to believe all, part or none of the
evidence. Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986).


                 Here, contrary to Landlord’s assertions, the trial court specifically
declared: “There was no credible evidence of compliance.” Tr. Ct., Slip Op., at 3.
Therefore, the fact-finder rejected Landlord’s testimony of compliance from the
Second Hearing. Instead, the trial court determined: “The only credible evidence
before this Court established [Landlord’s] guilt beyond a reasonable doubt.” Id.


                 In light of the trial court’s express credibility determinations, the
extensive testimony of the Code Enforcement Officer, and her photographs of
violations, we discern no error or abuse of discretion in the trial court’s resolution
of this issue.


                 For all the foregoing reasons, we affirm.




                                           ROBERT SIMPSON, Judge




                                             9
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania        :
                                    :
           v.                       :   No. 742 C.D. 2016
                                    :
George Cannarozzo,                  :
                      Appellant     :


                                  ORDER

           AND NOW, this 1st day of March, 2017, the order of the Court of
Common Pleas of Luzerne County is AFFIRMED.



                                   ROBERT SIMPSON, Judge
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania             :
                                         :
            v.                           :
                                         :
George Cannarozzo,                       :   No. 742 C.D. 2016
                Appellant                :   Submitted: October 14, 2016


BEFORE:     HONORABLE ROBERT E. SIMPSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


DISSENTING OPINION
BY JUDGE COSGROVE                            FILED: March 1, 2017


            I take issue with the Majority’s view that the persuasive value of
the unreported opinion in Altman v. Borough of Wilmerding, (Pa. Cmwlth., No.
1429 C.D. 2014, filed January 8, 2015), 2014 WL 2999703, trumps the binding
precedent found in Commonwealth v. Tobin, 828 A.2d 415 (Pa. Cmwlth.),
appeal denied, 841 A.2d 533 (Pa. 2003). The distinction the Majority makes
between these two cases, and the reason for applying Altman’s rationale, is the
presence of an “occupant consent” provision in the code at issue here
(something not relevant in Tobin).
            The essence of Tobin, however, was its emphasis on the importance
of obtaining a warrant, even in the administrative context, while also noting the
relative ease with which such administrative warrants may be secured, stating
that “obtaining an administrative warrant should be a matter of routine.” Tobin,
828 A.2d at 423.
            Routine as it may be, the warrant requirement is an essential check on
unbridled governmental action, a check which is ever so slightly (but
consequentially) eroded by the Majority opinion. As such, I must, respectfully,
dissent.




                                     ___________________________
                                     JOSEPH M. COSGROVE, Judge




                                    JMC - 2
