City of New Castle v. Uzamere

• Decision Date: 01 August 2003
• Citation: 829 A.2d 763
• Parties: CITY OF NEW CASTLE v. Pius A. UZAMERE, Appellant.
• Court: Pennsylvania Commonwealth Court

829 A.2d 763

CITY OF NEW CASTLE v. Pius A. UZAMERE, Appellant.

Commonwealth Court of Pennsylvania.

Submitted on Briefs March 28, 2003.

Decided August 1, 2003.

Pius A. Uzamere, appellant, pro se.

Theodore A. Saad, New Castle, for appellee.

BEFORE: McGINLEY, Judge, SIMPSON, Judge, KELLEY, Senior Judge.

OPINION BY Judge SIMPSON.

Pius Uzamere (Uzamere), representing himself, appeals the order of the Court of Common Pleas of Lawrence County (trial court) denying his motion for post-trial relief and entering judgment in favor of the City of New Castle (City) in the amount of $3,995.00, the cost of abating a public nuisance. We affirm.

As reflected in the deed, Des-Maraf Company (the Company) is the owner of property at 436 Croton Avenue in the City. Uzamere signed the deed as agent of the Company. The deed does not describe the Company as a corporation, nor does it bear the signature of any person identified as a corporate officer.

In 1996, a City Code Enforcement Officer inspected the structure located on the property. Based on his inspection, the officer determined the building constituted a public nuisance because it was hazardous to the health, welfare and safety of the public.

Thereafter, the City, through its contractor, demolished the building. It paid the contractor $3,995.00. To recover the cost, the City filed suit against Uzamere before a District Justice, who entered judgment in favor of the City in the amount of $4,519.66. Uzamere appealed to the trial court.

The City filed a complaint against Uzamere individually, and trading or doing business as the Company. In his answer, Uzamere denied trading or doing business as the Company. He further denied ownership of the property. Uzamere did not aver the owner of the property was a corporation, nor do his pleadings identify the alleged property owner.¹

A three day jury trial was held. The jury returned a verdict in favor of the City. The trial court denied Uzamere's motion for post-trial relief, and judgment was entered. Uzamere now appeals to this Court seeking a new trial or, in the alternative, judgment not withstanding the verdict.

When responding to a request for new trial, the trial court must follow a two-step process. Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). First, it must decide whether one or more mistakes occurred at trial. Id. Second, if the court concludes a mistake occurred, it must determine whether the mistake was a sufficient basis for granting a new trial. Id. The harmless error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate prejudice resulting from the mistake. Id.

As an appellate court, to review the two-step process of the trial court for granting a new trial, we also employ a two prong analysis. Id. First, we examine the decision of the trial court that a mistake occurred. In so doing, we must apply the appropriate standard of review. Id. If the alleged mistake involved an error of law, we must scrutinize for legal error. If, on the other hand, the alleged mistake at trial involved a discretionary act, we must review for an abuse of discretion. Id. If there were no mistakes at trial, we must affirm a decision by the trial court to deny a new trial because the trial court cannot order a new trial where no error of law or abuse of discretion occurred. Id.

Alternatively, in reviewing a motion for judgment n.o.v., "the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor." Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). A judgment n.o.v. should only be entered in a clear case, with any doubt resolved in favor of the verdict winner. Id.

There are two bases upon which a judgment n.o.v. can be entered: (1) the movant is entitled to judgment as a matter of law, and/or (2) the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Id. With the first, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor. Id. With the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond all doubt. Id.

On appeal, Uzamere contends: (1) the trial court erred in dismissing his preliminary objections; (2) the City solicitor lacked authority to file suit on the City's behalf; (3) the trial court erred in denying his request for a continuance; (4) he is not the owner of the property, and thus, cannot be held liable; and (5) the jury charge was unfairly prejudicial.

1.

Uzamere first asserts the trial court erred by dismissing his preliminary objections to the City's complaint. In his preliminary objections, Uzamere claimed the City's complaint was not sufficiently specific to enable him to prepare a defense.

The purpose of the pleadings is to place a defendant on notice of the claims upon which he will have to defend. Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579 (Pa.Super.2002). A complaint must give the defendants fair notice of the plaintiff's claims and a summary of the material facts that support those claims. Id.; Pa. R.C.P. No. 1019(a).

However, in order to qualify for post-trial relief, Uzamere must demonstrate that some problem with the pleadings prejudiced him at trial. See Slappo v. J's Dev. Assoc., Inc., 791 A.2d 409 (Pa.Super.2002)

(new trial not warranted merely because some irregularity occurred). He fails to argue that lack of specificity in the complaint caused him prejudice at any stage beyond the pleadings. As such, any pleading error is harmless and will not support post-trial relief. Harman; Slappo.

2.

Uzamere also claims the City solicitor lacked authority to file suit absent a specific resolution by City Council.

Section 1303 of The Third Class City Code (Code)² provides, in pertinent part:

[t]he city solicitor shall commence and prosecute all and every suit or suits, action or actions, brought by the city, for or on account of any of the estates, rights, trusts, privileges, claims, or demands,.... He shall do all and every professional act incident to the office which he may be lawfully authorized and required to do by the mayor, or by any ordinance or resolution of the council.

53 P.S. § 36603 (emphasis added). Section 2403 of the Code specifically authorizes city council, by ordinance:

To prohibit nuisances, ... and to require the removal of any nuisance or dangerous structure from public or private places upon notice to the owner, and, upon his default, to cause such removal and collect the cost thereof, together with a penalty of ten per centum of such cost, from the owner, by an action in assumpsit....

53 P.S. § 37403.

Section 1761.03(e)(3) of the Codified Ordinances (Ordinance) of the City of New Castle, states "[t]he City may institute a suit to recover ... expenses to be charged against the property as a lien or against the person or legal entity violating the code as a judgment." Clearly, the City is empowered to institute the action here by statute and by ordinance.

In view of the language of the Code, we conclude the solicitor's authorization to proceed with suit need not be memorialized by resolution, and may take the form of a directive from the mayor. Uzamere failed to offer evidence that the solicitor received authorization from neither the mayor nor council. Thus, we find no error in the rejection of this argument.

3.

Uzamere argues the trial court erred in denying his motion for a continuance due to the death of a potential witness, Michael Elardo, the City's Building Code Enforcement Director. In reviewing a trial court's ruling on a request for a continuance based on the absence of a witness, our Supreme Court stated:

[w]hile it is the policy of the law that the parties to an action have the benefit of the personal attendance of [a] material [witness] whenever reasonably practicable, it necessarily lies within the discretion of the trial court to determine, in light of all of the circumstances of each case, whether or not a cause before it should be continued on the ground of absence of a material [witness]. Such a continuance will be granted only where it is shown that their expected testimony is competent and material, and not merely cumulative or impeaching; that it is credible and would probably affect the result ....

Carey v. Phila. Transp. Co., 428 Pa. 321, 324, 237 A.2d 233, 235 (1968) (quoting 4 Standard Pennsylvania Practice § 627) (emphasis added); see also Barner v. Juniata County Tax Claim Bureau, 104 Pa. Cmwlth. 468, 522 A.2d 169 (1987)

.

The trial court may also require a party to show he exercised due diligence in attempting to secure the witness for trial. Geiger v. Rouse, 715 A.2d 454 (Pa.Super.1998); Birdsall v. Carbon County Bd. of Assessment, 168 Pa.Cmwlth. 266, 649 A.2d 740 (1994).

Here, Uzamere failed to show the testimony of the missing witness would affect the result. In fact, the trial court stated:

As to the existence of any prejudice that might have arisen from the absence of [Elardo]'s testimony, it seems that these prejudices would have been to the City's detriment rather than to [Uzamere's]. [Elardo] was the City's employee and it had been his duty to represent and protect the interest of the City.... Uzamere testified at some length as to the contents of [his] conversations with the City and the City was powerless to refute that testimony. Uzamere's version was already much in evidence, so we cannot find any prejudice to Uzamere.

Trial Court's Slip Op. at 10.

Also, the trial court...