Com. v. Nicely

• Decision Date: 04 February 2010
• Docket Number: No. 1107 C.D. 2009,1107 C.D. 2009
• Citation: 988 A.2d 799
• Parties: COMMONWEALTH of Pennsylvania v. Brian NICELY, Appellant.
• Court: Pennsylvania Commonwealth Court

988 A.2d 799

COMMONWEALTH of Pennsylvania v. Brian NICELY, Appellant.

No. 1107 C.D. 2009

Commonwealth Court of Pennsylvania.

Submitted November 13, 2009.

Decided February 4, 2010.

Brian Nicely, appellant, pro se.

Stanley B. Lederman, Pittsburgh, for appellee.

BEFORE: COHN JUBELIRER, Judge, and SIMPSON, Judge, and KELLEY, Senior Judge.

OPINION BY Judge COHN JUBELIRER.

Brian Nicely (Nicely) appeals, pro se, from the April 28, 2009 order of the Court of Common Pleas of Allegheny County (trial court), which denied his de novo appeal from a summary conviction for storing an unlicensed and unregistered motor vehicle on his property in violation of certain sections of the Borough of Baldwin (Borough) Ordinance (Ordinance) and the International Property Maintenance Code/2006 (Property Maintenance Code). The Ordinance and Property Maintenance Code govern the maintenance of property, including the maintenance of exterior areas, within the Borough and regulate, inter alia, the parking, keeping, or storing of unlicensed and unregistered vehicles on properties located in the Borough. On appeal, Nicely argues that the trial court's order should be reversed because: (1) the Borough failed to prove that the vehicle stored in his driveway was a nuisance in fact; (2) the trial court erred by not holding a separate hearing to consider Nicely's Motion to Dismiss with Prejudice (Motion); (3) the Borough's citation lacked specificity, violating Nicely's right to know the nature of the accusations against him; (4) the charge should have been dismissed as a de minimis violation; and (5) the trial court denied Nicely the opportunity to present his appeal. We affirm.

On August 8, 2008, the Borough's code enforcement officer (Officer) sent Nicely a letter (Notice), by certified mail, indicating that: the unlicensed, unregistered vehicle in Nicely's driveway violated Section 302.8 of the Property Maintenance Code and Section 157-1 of the Ordinance; Nicely had thirty days to remove the vehicle; and the failure to remove the vehicle could result in a citation. (Notice from Officer to Nicely (August 8, 2008).) Attached to the Notice were copies of Sections 302.8 and 157-1. Nicely signed and returned the certified receipt, thus acknowledging that he received the Notice. Section 302.8 of the Property Maintenance Code, which is part of Section 302 of the Property Maintenance Code regulating "Exterior Property Areas," provides, in relevant part:

302.8 Motor Vehicles. Except as provided for in other regulations, no inoperative or unlicensed motor vehicle shall be parked, kept or stored on any premises, and no vehicle shall at any time be in a state of major disassembly, disrepair, or in the process of being stripped or dismantled.

(Section 302.8 of the Property Maintenance Code, Commonwealth Ex. 6.) Section 157-1 of the Ordinance defines "Abandoned Vehicle," in pertinent part, as:

Any vehicle in such a state of disrepair as to be incapable of being moved under its own power or with any tire missing or without a wheel or wheels or with any window broken or missing or in a dismantled condition or without current license plates or without a current inspection sticker, which vehicle has not been moved or used for more than seven consecutive days. . . . .

(Section 157-1 of the Ordinance, Commonwealth Ex. 5 (emphasis added).)

Nicely did not respond to the Notice, and he did not move or register the vehicle. Consequently, on September 16, 2008, the Officer issued a citation to Nicely for violating: "Inter Prop. Maint. Code/2006 [Section] 302.8[;] Boro Ord. [Section] 157-1 [Fine] 300 . . . [;] Unlicensed, Unregistered Vehicle On Property." (Citation, September 16, 2008.) A Magisterial District Judge found Nicely guilty of a summary offense¹ and fined Nicely $300.00 plus costs. (Transcript of Docket, December 17, 2008.) Nicely appealed his conviction to the trial court, (Notice of Appeal from Summary Conviction, December 5, 2008), which held de novo hearings on March 24, 2009 and April 28, 2009.

At the first hearing, Officer testified that: he was the code enforcement officer for the Borough; he sent Nicely the Notice, for which Nicely signed the certified return receipt; he had no communication with Nicely regarding the Notice; he was unaware of any attempts to mediate the problem; and he issued the citation for the storage of the vehicle on the property. (Trial Ct. Hr'g Tr. at 2-5, March 24, 2009.) Officer then presented the trial court with pictures of the vehicle, (Commonwealth Exs. 2-4), taken March 23, 2009, the day before Officer testified. (Trial Ct. Hr'g Tr. at 5-6.) Officer stated that: the vehicle in the pictures was in the same position as it had been in August 2008 (when he sent the Notice); the vehicle did not bear a current Pennsylvania registration or inspection sticker; and the last registration was from 2000. (Trial Ct. Hr'g Tr. at 6.) Officer explained that the vehicle was in the same condition in August 2008 as it was in the photographs² and that, to the best of his knowledge, the vehicle had not been moved or repaired in that time. (Trial Ct. Hr'g Tr. at 7.) Officer opined that the condition of the vehicle violated Section 157-1 of the Ordinance and Section 302.8 of the Property Maintenance Code. (Trial Ct. Hr'g Tr. at 7-8.)

In response, Nicely argued that, pursuant to Davis v. Commonwealth, 127 Pa. Cmwlth. 475, 561 A.2d 1339 (1989), and other case law, in order to establish a violation of the Ordinance and Property Maintenance Code, the Borough had to prove that his vehicle was a nuisance in fact, which the Borough failed to do. (Trial Ct. Hr'g Tr. at 9-10.) Nicely testified that his vehicle was not "in disrepair, [was] not taken apart, kids can't climb on it. It's locked up, it's on my property." (Trial Ct. Hr'g Tr. at 10.) Nicely agreed that the vehicle did not have a current license plate or inspection, but he disagreed that the tire was in disrepair, stating "I can blow that tire up." (Trial Ct. Hr'g Tr. at 10.) Nicely claimed that he could start the vehicle at any time by installing a charged battery and that the Borough's assertion that the vehicle was not moveable was incorrect. (Trial Ct. Hr'g Tr. at 11.) When the trial court asked him why he could not store the car in his garage, Nicely explained that he had other things in the garage. (Trial Ct. Hr'g Tr. at 18.) After hearing this testimony, the trial judge continued the case for thirty days, stating that, if Nicely merely moved the vehicle, he would grant Nicely's appeal (Trial Ct. Hr'g Tr. at 19-20), and that he would review the cases relied on by Nicely prior to the second hearing. (Trial Ct. Hr'g Tr. at 20-21.)

At the second hearing, Nicely, who had not moved the vehicle, filed the Motion, again asserting that a municipality cannot declare abandoned vehicles nuisances per se, but must prove that a stored vehicle is a nuisance in fact. (Motion, April 28, 2009; Trial Ct. Hr'g Tr. at 3-4, April 28, 2009.) According to Nicely, the Borough did not produce any evidence that his vehicle was a nuisance and, therefore, the matter should be dismissed with costs assessed against the Borough. (Motion at 3-4; Trial Ct. Hr'g Tr. at 3.) The Borough responded that the cases Nicely relied upon were distinguishable because the Ordinance and Property Maintenance Code did not declare abandoned vehicles nuisances per se. (Trial Ct. Hr'g Tr. at 4.) The Borough also indicated that Nicely had not moved the vehicle since the last hearing. (Trial Ct. Hr'g Tr. at 2.)

Noting that it was familiar with and understood the cases cited by Nicely, the trial court ruled against Nicely on the nuisance issue. (Trial Ct. Hr'g Tr. at 5.) The trial court found Nicely guilty and fined him $300.00 plus costs. (Trial Ct. Hr'g Tr. at 5-6; Trial Ct. Order, April 28, 2009.) Nicely now appeals to this Court.³

Nicely first argues that, pursuant to Commonwealth v. Snyder, 688 A.2d 230 (Pa.Cmwlth.1996), Teal v. Township of Haverford, 134 Pa.Cmwlth. 157, 578 A.2d 80 (1990), Davis, and Talley v. Borough of Trainer, 38 Pa.Cmwlth. 441, 394 A.2d 645 (1978), the Borough had to prove that the vehicle on Nicely's property was a nuisance in fact, and cannot simply declare all abandoned vehicles to be nuisances per se.⁴ According to Nicely, the evidence presented by the Borough does not prove that the vehicle is a nuisance in fact. We disagree that the Borough had to prove that the vehicle was a nuisance in fact.

Snyder, Teal, Davis, and Talley are distinguishable from the present matter. In those cases, the municipalities' authority to regulate and abate the abandoned vehicles flowed from their power to regulate nuisances. This Court, in Talley, Davis, and Snyder, held that in order to regulate and abate the storage of wrecked or abandoned vehicles, the boroughs had to prove that the subject vehicles were nuisances in fact. However, in those cases the Court found the boroughs were regulating this activity pursuant to the nuisance provisions found at Section 1202(5) of the Borough Code,⁵ as evidenced by the Court's reliance on Commonwealth v. Hanzlik, 400 Pa. 134, 161 A.2d 340 (1960), in which our Supreme Court held that former Section 702 of The Second Class Township Code,⁶ now Section 1529, authorizes a second class township to prohibit nuisances, such as abandoned or junked vehicles, by ordinance so long as the township proves that the vehicle is a nuisance in fact.⁷ Similarly, the township's authority to regulate the abandoned vehicles in Teal relied on Section 1502 of The First Class Township Code,⁸ which grants townships the authority to prohibit and remove nuisances.⁹

In contrast, the Borough's authority to regulate the maintenance and conditions of property, including the exterior areas of a property, is not found in its power to regulate nuisances. Rather, that authority is found in Section 1202(24) of the Borough Code, 53 P.S. § 46202(24), which expressly authorizes boroughs to "enact suitable...