Borough of Kennett Square v. Lal

• Decision Date: 22 July 1994
• Parties: BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant.
• Court: Pennsylvania Commonwealth Court

Page 1172

643 A.2d 1172

164 Pa.Cmwlth. 654

BOROUGH OF KENNETT SQUARE v. Amrit LAL, Appellant.

Commonwealth Court of Pennsylvania.

Argued Feb. 3, 1994.

Decided June 8, 1994.

Reargument Denied July 22, 1994.

Thomas R. Kellogg, for appellant.

John L. Hall, for appellee.

Before McGINLEY and SMITH, JJ., and KELTON, Senior Judge.

SMITH, Judge.

Amrit Lal appeals from the judgment of sentence imposed by the Court of Common Pleas of Chester County after the court found Lal guilty of violating various provisions of the Borough of Kennett Square's Property Maintenance Code (Code). The issues raised on appeal are whether the trial court abused its discretion in denying a recusal motion, in imposing sentence, and in failing to rule that the Borough did not apply the Code to Lal in an evenhanded, nondiscriminatory manner. Additional issues presented include whether Lal was denied effective assistance of counsel; whether the Code has any reasonable relation to the health, safety, morals or general welfare of the community; and whether the conditions underlying the prosecution were caused by the Borough's own inaction.

Lal owns the Scarlett Manor apartment complex in the Borough of Kennett Square. The Borough's code enforcement officer inspected the complex on numerous occasions and, finding conditions that were not in compliance with the Code, sent notice of violation letters to Lal detailing the problems and informing him of the deadlines for correcting the violations. Because of the enormity of repairs required, the Borough gave Lal the opportunity to submit a schedule for completion of the repairs. The Borough accepted Lal's proposed schedule and notified Lal when it would reinspect the complex. The Borough reinspected the complex several months later, found various violations remaining, and cited Lal for those violations. A district justice found Lal guilty of the violations and Lal appealed the convictions to the trial court.

At the de novo hearing, the trial court denied Lal's recusal motion and convicted him on eleven of thirteen counts of violating the Code. ¹ The court found that the Borough gave Lal more than sufficient opportunity to resolve the problems and that he failed to correct some of the violations. Further, the court found that Lal exhibited a pattern of avoiding compliance with the Code and disagreed with Lal's assertion that other parties, namely the tenants, the contractors, and the Borough, were to blame for the delays and noncompliance. After denying a second recusal motion, the trial court sentenced Lal and ordered him to pay fines ranging from $300 to $1000 for the violations. ² Lal filed a motion for reconsideration of sentence which the trial court denied, and appealed to this Court. ³

Lal first argues that the trial judge should have recused himself prior to trial and again at sentencing. The law in this Commonwealth is well settled: trial judges are presumed to be fair, and a party who asserts that a judge must be disqualified has the burden to produce evidence that tends to show bias, prejudice, or unfairness. After consideration of the evidence, the judge must decide whether he or she can hear and dispose of the case fairly and without prejudice. Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985). This Court's scope of review of a trial court's decision to deny a recusal motion is limited to determining whether the trial court abused its discretion in denying the motion. In re Blystone, 144 Pa.Commonwealth Ct. 27, 600 A.2d 672 (1991), appeal denied, 534 Pa. 641, 626 A.2d 1159 (1993).

Lal asserts the judge's decision to find him guilty of violating the Code was biased by an ex parte communication he received and considered from the Borough's counsel prior to trial. An ex parte communication occurs when information is exchanged between a judge and one of the parties to a pending proceeding without notice to an adverse party. Black's Law Dictionary 517 (5th ed. 1979). The communications Lal complains of were a series of letters to his attorney from the Borough's counsel, copies of which were sent to the trial judge, simply confirming the parties' understanding of negotiations as outlined by the trial judge at a settlement conference attended by all parties. As such communications were clearly not ex parte, the trial judge did not abuse his discretion in refusing Lal's motion for recusal.

Lal also contends that the court erred by denying his second motion for recusal made prior to sentencing because the court demonstrated obvious bias against Lal, as evidenced by the judge's remarks throughout the trial and at the sentencing hearing. Lal points to comments made by the trial judge concerning his knowledge of Lal's previous court history with similar cases concerning Code violations.

Prior to trial and to sentencing, the judge, referring to the mandates set forth in Reilly, stated repeatedly and unequivocally that Lal would receive a fair trial and that he felt no animosity toward Lal. Further, when read in the context of the entire sentencing proceeding, the judge's references to Lal's prior cases clearly indicate that the he was simply explaining the basis for the sentence he was about to impose. The judge specifically outlined the reasons for his findings on each count and indicated he considered the testimony and facts with respect to each violation separately. Additionally, the trial court acquitted Lal of two of the alleged violations, which indicates that its verdict was based on the facts presented at trial and not on a preconceived bias against Lal. As Lal failed to present any evidence tending to show bias, prejudice, or unfairness, the trial judge did not abuse his discretion by refusing to recuse himself from either the trial or sentencing proceedings.

Lal further argues that the trial court erred because it considered impermissible factors in imposing his sentence. Initially it is noted that sentencing is within the sound discretion of the trial judge and absent an abuse of discretion this Court will not disturb a sentence imposed by the trial court. Commonwealth v. Dutter, 420 Pa.Superior Ct. 565, 617 A.2d 330 (1992).

In formulating a sentence, the 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. Commonwealth v. Cottam, 420 Pa.Superior Ct. 311, 616 A.2d 988 (1992), appeal denied, 535 Pa. 673, 636 A.2d 632 (1993). Considerations should include the history and character of the defendant, the nature and circumstances of the crime, Cottam; Commonwealth v. Didyoung, 369 Pa.Superior Ct. 346, 535 A.2d 192 (1988); and the defendant's attitude, including a lack of contrition for his criminal conduct. Commonwealth v. Gallagher, 296 Pa.Superior Ct. 382, 442 A.2d 820 (1982), appeal denied (filed June 30, 1982). Finally, if a sentence imposed is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment. Commonwealth v. Martin, 328 Pa.Superior Ct. 498, 477 A.2d 555 (1984).

Lal contends that the trial court developed an opinion of him independent of...