         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania         :
                                     :
              v.                     : No. 235 C.D. 2015
                                     :
Paul Brunk,                          :
                   Appellant         :

Commonwealth of Pennsylvania         :
                                     :
              v.                     : No. 236 C.D. 2015
                                     : Submitted: September 18, 2015
Paul Brunk,                          :
                   Appellant         :


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI                         FILED: November 16, 2015


              Paul Brunk (Brunk) appeals from orders of the Court of Common
Pleas of Westmoreland County, Criminal Division (trial court), finding him guilty
and imposing a fine of over $100,000 plus costs for multiple violations of Salem
Township’s (Township) Nuisance and Junk Ordinance (Ordinance).           For the
reasons that follow, we vacate and remand.
                The Township passed its Ordinance on August 17, 1995, in order to
“remove or eliminate conditions of nuisance(s) within the [Township] to protect
the health, safety, and welfare of the Township Citizens [sic] and community at
large.” (Ordinance at Section 1411(A).) The Ordinance provides that no person
owning or occupying a property within the Township shall allow the following
conditions and/or items to be left or accumulate on the property where the
condition creates a nuisance, fire or health hazard, or is detrimental to the health
and safety, cleanliness and comfort of the Township residents/community.1

       1
           The following are prohibited:

                (1) Any garbage, rubbish, waste material, and debris of any kind,
                junk, scrapped, or wrecked motor vehicles and/or trailers,
                flammable articles, or stored vehicles without a current inspection
                sticker, without current vehicle registration, or without current
                license plate.

                (2) Any accumulation or storage of garbage, rubbish, waste
                material, vegetation, and debris of any kind, junk, scrapped, or
                wrecked/unused motor vehicles or trailers, flammable articles, or
                store vehicles without a current inspection sticker, without current
                vehicle registration, or without current license plate.

                (3) Any storage or accumulation of construction materials or
                construction equipment that is unused, abandoned, junked, or not
                related to a construction business on the premises. Construction
                materials and equipment may be stored on the premises provided it
                does not create a nuisance, fire, health hazard, or is detrimental to
                the health or safety of the community.

                (4) Any natural vegetation condition including, but not limited to,
                weeds, grass, bushes and and/or hedges, where said condition
                creates a fire hazard, health hazard, or a nuisance to the community
                or abutting residents and/or landowners.

(Ordinance at Sections 1412(A)(1)-(4).)



                                                 2
               Under the Ordinance, the Township may commence judicial
proceedings against any person who violates the provisions of the Ordinance. If
the individual is found liable by a judicial proceeding, a judgment of no more than
$500 may be entered for a first offense and a judgment of no more than $1,000
may be entered for a second and subsequent offense.2, 3

       2
        The individual will also be liable for all court costs and costs of prosecution, including
the Township’s attorney’s fees.

       3
          The manner in how to characterize prosecutions for violations of municipal ordinances
has been troublesome. Generally, most municipalities were only authorized to impose fines and,
if the fines were not paid, then an imprisonment could be imposed. At common law, an action
brought by the municipality for the violation of a municipal ordinance was considered a civil suit
for penalty and the normal civil burdens applied. Commonwealth v. Carter, 377 A.2d 831, 832
(Pa. Cmwlth. 1977).

        With the promulgation of the then-new Pennsylvania Rules of Criminal Procedure,
through definitional changes, what we previously considered civil suits for penalty became penal
in nature. Those Rules define “criminal proceedings” as including “all actions for the
enforcement of the Penal Laws.” Pa. R.Crim. P. 103. Effective April 1, 2001, Pa. R.Crim. P. 3
was renumbered as Pa. R.Crim. P. 103. The penal laws include “any ordinances which may
provide for imprisonment upon conviction or upon failure to pay a fine or penalty.” Id. An
ordinance is a “legislative enactment of a political subdivision.” Id. These definitions (which
were in effect in 1976) remove any doubt as to the nature of the instant proceedings; they are
criminal proceedings. This was so, even though Pa. R.Crim. P. 456(C) provides that
imprisonment may only be ordered if the defendant is able to pay the fine and refuses, making
the “in default thereof” akin to civil contempt.

       However, in Town of McCandless v. Bellisario, 709 A.2d 379, 381 (Pa. 1998), our
Supreme Court addressed what level of due process protection was due when municipal
ordinances did not provide for payment of a fine:

               While the enforcement of municipal ordinances that provide for
               imprisonment upon conviction or failure to pay a fine or penalty
               must follow the Rules of Criminal Procedure, the same is not true
               for municipal ordinances that do not provide for imprisonment
               upon conviction or failure to pay a fine or penalty, which, by
               definition, are not Penal Laws, and are therefore not included in
(Footnote continued on next page…)

                                                3
               Brunk owned property in the Township and over the years had been
charged with and found guilty and fined for various violations of the
aforementioned sections of the Ordinance. In June 2014, a Magisterial District
Judge (MDJ) found Brunk guilty on three counts of violating the Ordinance and
imposed a penalty of $1,000 plus fees on each count. In September 2014, the MDJ
again found Brunk guilty on nine counts of violating the Ordinance, finding the
violations to have existed on an “ongoing” and “continuing” basis and imposing a
penalty of $1,000 plus fees on each count for a total penalty of $138,000. Brunk
took a summary appeal of both decisions to the trial court and the actions were
consolidated for disposition.


               Before the trial court, Kenneth Karas, the Township’s Code
Enforcement Officer, presented photographs taken of Brunk’s property between
March and September 2014 to show the condition of Brunk’s property, including
but not limited to damaged roofs, debris, high weeds, a vehicle with a license plate
and an expired inspection sticker, and scattered construction and home

(continued…)

               the definition of “criminal proceedings.” Pa. R.Crim. P. 3. The
               higher degree of protection provided by the Rules of Criminal
               Procedure does not apply to municipal ordinance enforcement
               actions where imprisonment is not a remedy for a conviction or
               failure to pay a fine.

        Because the Ordinance does not provide for imprisonment in lieu of payment of a fine,
the violations charged were civil in nature. In Austin v. United States, 509 U.S. 602 (1993) , the
Court noted that the application of the Excessive Fines Clause to civil forfeiture did not depend
on whether it was a civil or criminal procedure, but rather on whether the forfeiture could be seen
as punishment.




                                                4
maintenance materials, furniture and so forth on the premises. Mr. Karas testified
that as a result of no noticeable change in the condition of Brunk’s property from
March until September 2014, he filed three separate citations against Brunk in
September for violations of Ordinance Sections 1412(A)(1), (2) and (4), and then
he filed three more citations for violations under the same sections later that
month.


                 Brunk, then pro se, testified of his efforts in attempting to clean up his
property with Mr. Karas’ help. He also testified that Mr. Karas had asked the MDJ
to reduce his fines because he was doing such a good job in the cleanup efforts.


                 The trial court judge found Brunk guilty of the charges and dismissed
his appeal and imposed the same fine that the MDJ imposed, $1,000 per count per
day plus fees and the Township’s legal fees up to $3,000. The trial court directed
Brunk to file a Rule 1925(b) Statement.4




       4
           Rule 1925(b) provides, in pertinent part:

                 Direction to file statement of errors complained of on appeal;
                 instructions to the appellant and the trial court.—If the judge
                 entering the order giving rise to the notice of appeal (“judge”)
                 desires clarification of the errors complained of on appeal, the
                 judge may enter an order directing the appellant to file of record in
                 the trial court and serve on the judge a concise statement of the
                 errors complained of on appeal (“Statement”).

Pa. R.A.P. 1925(b).




                                                  5
                 In response to Brunk’s Rule 1925(b) Statement,5 the trial court stated
in its Rule 1925(a) Opinion6 that it found that Brunk’s property was in violation of
the Ordinance and it assessed fines and criminal fees pursuant to the criminal
provisions of the Ordinance. This appeal followed.7


                 On appeal, Brunk does not contest (a) the determinations that he is in
violation of the Township’s Ordinance; (b) the three $1,000 fines imposed at No.
235 C.D. 2015; or (c) the Court’s award of counsel fees of up to $3,000 at No. 236
C.D. 2015. Brunk likewise does not question the statutory authority under which


       5
           In his 1925(b) Statement, Brunk set forth its complaint as follows:

                 The Honorable Trial Court erred and abused its discretion-as well
                 as denied [Brunk] due process by assessing fines and penalties in
                 excess of those permitted by law.

(R. Item. No. 11.)

       6
         Pa. R.A.P. 1925(a) requires a judge to issue an opinion setting forth the reasons for his
ruling upon receipt of a notice of appeal. It states:

                 Upon receipt of the notice of appeal the judge who entered the
                 order appealed from, if the reasons for the order do not already
                 appear of record, shall forthwith file of record at least a brief
                 statement, in the form of an opinion, of the reasons for the order, or
                 for the rulings or other matters complained of, or shall specify in
                 writing the place in the record where such reasons may be found.

       7
          This Court’s 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). The Commonwealth has the never-shifting burden of proving all elements of a summary
offense beyond a reasonable doubt. Commonwealth v. A.D.B., 752 A.2d 438, 443 (Pa. Cmwlth.
2000).




                                                   6
the Court’s sentence is imposed, and his appeal only contests the amount of daily
fines imposed at No. 236 C.D. 2015, arguing the aggregate amount imposed is
excessive and not proportionate to the violation committed and in violation of
Article 1, Section 13 of the Pennsylvania Constitution and the Eighth Amendment
of the United States Constitution made applicable to the Commonwealth by the
Fourteenth Amendment.8


                The Commonwealth, however, argues that the fines imposed are not
excessive because the Township is statutorily permitted by the Second Class
Township Code9 to impose penalties for violations of property maintenance and/or
public safety related to ordinances of up to $1,000 per day. Moreover, it contends
that the fines are not excessive because, in imposing the fines, the trial court
considered Brunk’s prior violations, his failure to bring his property into
compliance with the Ordinance, and the fact that prior judicial action has not
deterred his conduct.


                The Eighth Amendment of the United States Constitution provides
that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel

       8
          The Commonwealth argues that Brunk’s appeal should be dismissed as he failed to raise
this issue before the trial court. Pa. R.A.P. 302(a) provides that, “Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.” While the Commonwealth is
correct in its assertion that Brunk did not raise the issue of excessive fines during the trial,
because the trial court was acting as the de novo factfinder and could impose any fine it found
appropriate, the excessive fines issue did not arise until after the trial court entered its verdict.
As such, the earliest opportunity Brunk had to raise the issue was in his Rule 1925(b) Statement,
as he did.

       9
           Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§65101-68701.




                                                 7
and unusual punishments inflicted.” U.S. Const. amend. VIII. A fine is considered
excessive under the Eighth Amendment “if it is grossly disproportional to the
gravity of a defendant’s offense.” United States v. Bajakajian, 524 U.S. 321, 334
(1998). The Pennsylvania Constitution similarly maintains that, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel punishments
inflicted.” Pa. Const. art. 1, §13. Moreover, the Pennsylvania Constitution’s
prohibition against excessive fines requires the fine to be “reasonably
proportionate to the crimes which occasion them.” Commonwealth v. Eisenberg,
98 A.3d 1268, 1287 (Pa. 2014).10


                 Even if a fine is in line with the terms of an ordinance, if said
ordinance has a punitive effect, “without relation to the individual’s ability to pay
and the severity of the violation, it does not meet the standard required by the
constitution.” Commonwealth v. Heggenstaller, 699 A.2d 767, 769 (Pa. Super.
1997). That is, an appropriate fine is one that is sufficient enough to discourage
the conduct without being excessive and punitive in nature. Id. In formulating a
sentence for a summary offense:


       10
            As our Supreme Court recently reiterated:

                 [T]he primary purpose of a fine or a penalty is twofold[:] to
                 punish violators and to deter future or continued violations. Since
                 it serves not only as a punishment but also as a deterrent, the
                 amount of the fine can be raised to whatever sum is necessary to
                 discourage future or continued violations, subject, of course, to any
                 restriction imposed on the amount of the fine by the enabling
                 statute or the Constitution.

Eisenberg, 98 A.2d at 1283 (quoting Commonwealth v. Church, 522 A.2d 30, 34 (Pa. 1987)).



                                                  8
             [T]he trial court should weigh all mitigating and
             aggravating factors and arrive at an appropriate sentence
             that is consistent with the protection of the public and the
             gravity of the offense. Considerations should include the
             history and character of the defendant, the nature and
             circumstances of the crime ... and the defendant’s
             attitude, including a lack of contrition for his criminal
             conduct. Finally, if a sentence is imposed within the
             statutory limits, there is no abuse of discretion unless the
             sentence is manifestly excessive so as to inflict too severe
             a punishment.


Borough of Kennett Square v. Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth. 1994).
Factors such as the value of the property and the feasibility and the cost of repairs
may be relevant in determining whether a fine is excessive. Commonwealth v.
Halstead, 79 A.3d 1240, 1247 (Pa. Cmwlth. 2013).


             In this case, other than noting that Brunk had been before the court
several times in the past, the trial court judge stated that he found him guilty on all
charges and imposed the fine allowed by the Ordinance. Because the trial court
did not address whether the cumulative fine of $140,000 was “reasonably
proportionate to the crimes which occasion them,” the trial court’s order is vacated
and the matter is remanded to consider the question of whether the fines it imposed
were too severe in view of mitigating and aggravating factors.



                                        ____________________________________
                                        DAN PELLEGRINI, President Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania               :
                                           :
              v.                           : No. 235 C.D. 2015
                                           :
Paul Brunk,                                :
                    Appellant              :

Commonwealth of Pennsylvania               :
                                           :
              v.                           : No. 236 C.D. 2015
                                           :
Paul Brunk,                                :
                    Appellant              :




                                     ORDER


              AND NOW, this 16th day of November, 2015, the orders of the
Court of Common Pleas of Westmoreland County dated January 13, 2015, at Nos.
337 SA 2014 and 465 SA 2014, are vacated and this matter is remanded to the trial
court to consider the question of whether the fines are excessive, to accept
additional evidence as warranted, and to issue a new order.


              Jurisdiction relinquished.



                                           ____________________________________
                                           DAN PELLEGRINI, President Judge
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania          :
                                      :
                    v.                :
                                      :
Paul Brunk,                           :     No. 235 C.D. 2015
                          Appellant   :
                                      :
Commonwealth of Pennsylvania          :
                                      :
                    v.                :
                                      :
Paul Brunk,                           :     No. 236 C.D. 2015
                          Appellant   :     Submitted: September 18, 2015


BEFORE:       HONORABLE DAN PELLEGRINI, President Judge
              HONORABLE MARY HANNAH LEAVITT, Judge
              HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

DISSENTING OPINION BY
JUDGE COVEY                                 FILED: November 16, 2015

              I respectfully dissent from the Majority’s order vacating the
Westmoreland County Common Pleas Court’s (trial court) January 13, 2015 orders
and remanding to the trial court to consider the question of whether the fines it
imposed were too severe in view of mitigating and aggravating factors.
              There are two issues before the Court: (1) whether Paul Brunk (Brunk)
waived his Excessive Fines Clause issue; and (2) whether the trial court’s imposition
of fines was an abuse of discretion. The Majority holds that the fines issue could not
be waived because the trial court heard the case de novo, and Brunk could not argue it
below since he was not aware of the fines until the verdict was rendered; thus, Brunk
could not raise it until his Rule 1925(b) Statement of Errors on Appeal (1925(b)
Statement). See Majority Op. at 7 n.8. I agree with that statement. However, when
Brunk raised the issue in his 1925(b) Statement, he provided: “The Honorable Trial
Court erred and abused its discretion []as well as denied [Brunk] due process by
assessing fines and penalties in excess of those permitted by law.” Brunk Br. at
Appendix E (emphasis added). When Brunk raised the issue in the Statement of
Questions portion of his brief, he stated: “Did the trial court’s imposition of fines
amounting to more than $100,000 for . . . Brunk’s summary infraction of a local
property maintenance ordinance violate the Excessive Fines Clauses of the
Pennsylvania and U.S. Constitutions.” Brunk Br. at 3 (emphasis added).
             “Our Supreme Court has admonished that an appellate court does not sit
to review questions that were neither raised, tried, nor considered by the trial court.”
Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa. Super. 2006) (quoting Harber Phila.
Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1104 (Pa. Super. 2000)).
Moreover, regarding vague or overly broad statements, the Superior Court has also
stated:

                 When a court has to guess what issues an appellant
                 is appealing, that is not enough for meaningful
                 review. When an appellant fails adequately to
                 identify in a concise manner the issues sought to
                 be pursued on appeal, the trial court is impeded
                 in its preparation of a legal analysis which is
                 pertinent to those issues.
                 In other words, a Concise Statement which is too
                 vague to allow the court to identify the issues
                 raised on appeal is the functional equivalent of
                 no Concise Statement at all. . . . In the instant case,
                 Appellant’s Concise Statement was not specific
                 enough for the trial court to identify and address the
                 issue Appellant wished to raise on appeal. As such,
                 the court did not address it. Because Appellant’s


                                        AEC - 2
                    vague Concise Statement has hampered appellate
                    review, it is waived.
            Commonwealth v. Dowling, 778 A.2d 683, 686–87
            (Pa.[]Super.[]2001). ‘An appellant’s failure to include an
            issue in his [Rule] 1925(b) statement waives that issue for
            purposes of appellate review.’ McKeeman [v. Corestates
            Bank, N.A., 751 A.2d 655, 658 n.2 (Pa. Super. 2000).]
Lineberger, 894 A.2d at 148 (emphasis added; footnote omitted).
               In the instant case, the trial court in its 1925(a) Statement expressed that
the fines were issued pursuant to Salem Township’s Nuisance and Junk Ordinance
(Ordinance). The trial court did not address the constitutionality of the fines because
that issue was not raised in Brunk’s 1925(b) Statement. Accordingly, I believe the
issue is waived because Brunk failed to “identify each ruling or error that [Brunk]
intends to challenge with sufficient detail to identify all pertinent issues for the
[trial court,]” in his 1925(b) Statement.1 Pa.R.A.P. 1925(b)(4)(ii) (emphasis added).
               Further, our Supreme Court has held:

               The issue preservation requirement ‘ensure[s] that the trial
               court that initially hears a dispute has had an opportunity
               to consider the issue[,]’ which in turn ‘advances the
               orderly and efficient use of our judicial resources[,]’ and
               provides fairness to the parties. In re F.C. III, 2 A.3d
               [1201,] 1212 [(Pa. 2010)]. Further, ‘it is incumbent upon
               one raising the specter that a statute is unconstitutional to
               state, at least in somewhat express terms, the specific
               constitutional grounds upon which the challenger is
               basing its attack on the legislation.’ Id.




       1
        I recognize that waiver is not jurisdictional and cannot be raised sua sponte; thus, if the
Commonwealth concedes the issue is properly before the Court, waiver becomes moot. However,
the Commonwealth specifically raised the issue of waiver. In the Commonwealth’s Statement of
Questions Presented, although it stated that Brunk raised the issue for the first time in his 1925(b)
Statement, it did not concede that the issue is properly before this Court, or include said statement in
the Argument section of its brief.

                                               AEC - 3
Commonwealth v. Eisenberg, 98 A.3d 1268, 1274-75 (Pa. 2014) (emphasis added).
Although the holding in Eisenberg is in the context of a statute’s constitutionality and
Pa.R.A.P. 302(a), as opposed to Pa.R.A.P. 1925(b), the rationale is the same. Here,
Brunk did not mention the constitutionality of the fines let alone raise “the specific
constitutional grounds” in his 1925(b) Statement. Thus, the trial court, having only
the Ordinance before it, believed “the law” referred to was said Ordinance and opined
accordingly.
               Notwithstanding whether the issue was waived, the Majority is
remanding because “the trial court did not address whether the cumulative fine of
$140,000[.00] was ‘reasonably proportionate to the crimes which occasion them[.]’”
Majority Op. at 9. I believe the record clearly reveals that the trial court did. The
trial court explained:

               [] Brunk, . . . you have been before me at least once, maybe
               twice before, and I see the history of this case and the . . .
               history of the transformation of your property, which I
               agree is not really substantial over four years of a period
               [sic].
               ....
               . . . I would like to offer you some solution for this problem
               because I truly believe that the Township is more interested
               in having the property cleaned and nonviolation of its
               ordinances [sic] than it is to fine you, but over four years
               plus, it has proven that doesn’t seem to work.
           So I am imposing the fines that were imposed below by
           Magistrate Buczak . . . .
Reproduced Record at 90a-91a.
               In its 1925(a) Statement, the trial court opined that “the factual basis for
its sentence is contained throughout the trial transcript.” Trial Ct. 1925(a) Statement.
The trial court’s statements on the record that it is a daily fine, that Brunk was already
before the trial court two prior times for the same ordinance violation, and over the

                                          AEC - 4
course of four years there has been no substantial change in the condition of his
property, are the reasons for its fine. Given that the trial court expressed that it
imposed a permitted fine under the Ordinance and discussed the egregiousness with
which Brunk violated the Ordinance, I believe the trial court adequately addressed
whether the fines were reasonably proportionate to Brunk’s violations. “As long as
sufficient evidence exists in the record which is adequate to support the trial court’s
determinations, as fact-finder, an appellate court is precluded from overturning those
determinations and must affirm.” City of Phila., Bd. of Pensions & Ret. v. Clayton,
987 A.2d 1255, 1262 (Pa. Cmwlth. 2009).
            Moreover, the Majority is remanding this matter for the express purpose
of having the trial court “consider the question of whether the fines it imposed were
too severe in view of mitigating and aggravating factors.” Majority Op. at 9. The
Majority is basing this directive on the quote it cited from Borough of Kennett Square
v. Lal, 643 A.2d 1172 (Pa. Cmwlth. 1994). Specifically, the Majority quoted:

            [T]he trial court should weigh all mitigating and
            aggravating factors and arrive at an appropriate sentence
            that is consistent with the protection of the public and the
            gravity of the offense. Considerations should include the
            history and character of the defendant, the nature and
            circumstances of the crime .[].[]. and the defendant’s
            attitude, including a lack of contrition for his criminal
            conduct. Finally, if a sentence is imposed within the
            statutory limits, there is no abuse of discretion unless the
            sentence is manifestly excessive so as to inflict too severe
            a punishment.

Majority Op. at 9 (emphasis added). However, the Kennett Square Court expressly
held that

            the trial court specifically stated that the sentence of
            incremental fines was a reflection of [the defendant’s]
            pattern of avoiding compliance with the Borough Code, his
            refusal to cooperate with the Borough, and his apparent lack
            of remorse as evidenced by his pattern of blaming others for

                                       AEC - 5
             causing his situation. Clearly the trial judge’s reasons for
             [the defendant’s] sentence were fully supported by the
             record and the sentence he imposed was not an abuse of
             discretion.

Id. at 1175. Under the same reasoning, the sentence imposed in the instant case was
not an abuse of discretion. Accordingly, remand is not warranted. For all of the
above reasons, I would affirm the trial court’s order.

                                       __________________________
                                       ANNE E. COVEY, Judge




                                        AEC - 6
