WARRINGTON TP. v. Powell

• Decision Date: 26 April 2002
• Citation: 796 A.2d 1061
• Parties: WARRINGTON TOWNSHIP, Bucks County, Pennsylvania, v. Malcolm J. POWELL and Margaret H. Powell, Individually and d/b/a Malcolm's Auto Body/Auto Repair and Malcolm's Used Cars-Sales and Service, Appellants.
• Court: Pennsylvania Commonwealth Court

796 A.2d 1061

WARRINGTON TOWNSHIP, Bucks County, Pennsylvania, v. Malcolm J. POWELL and Margaret H. Powell, Individually and d/b/a Malcolm's Auto Body/Auto Repair and Malcolm's Used Cars-Sales and Service, Appellants.

Commonwealth Court of Pennsylvania.

Submitted on Briefs February 15, 2002.

Decided April 26, 2002.

Malcolm Jeffrey Powell, Warrington, for appellants.

David J. Sander, Warrington, for appellee.

BEFORE: COLINS, President Judge, COHN, Judge, and MIRARCHI, JR., Senior Judge.

OPINION BY Senior Judge MIRARCHI, Jr.

Malcolm J. Powell and Margaret H. Powell, individually and d/b/a Malcolm's Auto Body/Auto Repair and Malcolm's Used Cars—Sales and Service (Appellants), acting pro se, appeal from the order of the Court of Common Pleas of Bucks County (trial court) that granted an injunction requested by Warrington Township (the Township) to conduct annual warrantless fire safety inspections of all buildings, structures, and areas located on Appellants' business premises. We reverse in part and affirm in part.

On November 17, 1992, the Township's Board of Supervisors enacted Ordinance No. 92-15 that adopted, by reference, the Building Officials and Code Administrators National Fire Prevention Code (BOCA Code) (8th ed.1990), as the Township's Fire Prevention Code. Section F-107.1 of the BOCA Code provides for an annual inspection by the Township of all structures and premises, except for single-family dwellings, two-family dwelling units, and multiple-family dwelling units. The annual inspection is intended to ascertain and cause to be corrected any conditions liable to cause fire, contribute to the spread of fire, interfere with fire-fighting operations, endanger life, or any violations of the letter and spirit of the BOCA Code or any other ordinance pertaining to fire safety.

On March 18, 1998, the Township attempted to perform an annual fire inspection pursuant to this provision at Appellants' premises, a gasoline station and automobile repair business located on Easton Road in Warrington, Pennsylvania.¹ Appellant Malcolm Powell, the principal owner of the business², denied the Township access to make the inspection.³ As a result of Mr. Powell's refusal, the Township filed a summary criminal complaint with a district justice, alleging that Appellants had violated the Township's Ordinance by their refusal. On September 15, 1998, the district justice ordered Appellants to either submit to the Township fire inspection by September 26, 1998, or pay a fine of $500 per day, up to the allowable maximum limit. When Township officials thereafter attempted to inspect Appellants' property, Mr. Powell again refused their access.

In response to this last refusal, the Township obtained an administrative search warrant from the district justice that provided for an administrative search of Appellants' premises on September 25, 1998 between the hours of 9:00 a.m. and 4:00 p.m. When the Township officials attempted to execute the warrant, Mr. Powell again refused their access.

On September 21, 1998, Appellants filed an appeal to the trial court from the district justice's September 15, 1998 order. On October 9, 1998, the Township filed a complaint in equity against Appellants seeking an injunction directing and ordering Appellants to permit access of their business premises by Township officials seeking to perform the annual fire safety inspection pursuant to the BOCA Code. Appellants filed a timely response. The Township thereafter served on Appellants a Request for Entry upon Property pursuant to Pa. R.C.P. Nos. 4009.31 and 4009.32.⁴ Appellants filed a timely objection to this request, and the Township responded by filing a motion to compel entry upon the property. Following a hearing, the trial court denied the Township's request, determining that the Township was simply attempting, through the discovery rules, to achieve the relief requested in their equity action without having first proven its entitlement to such relief.

On April 30, 2001, the trial court held a hearing on the Township's equity action, at which the Township presented the testimony of the Township's deputy fire marshal and code enforcement officer who had attempted to enter Appellants' premises in 1998, and Mr. Powell testified for Appellants, again acting pro se. Following the submission of legal memoranda from the parties, the trial court issued an order granting the Township's request for an injunction directing that the Township may enter upon Appellants' premises for purposes of an annual fire inspection. Appellants appealed to the Superior Court, which transferred the matter to this Court.

In addition to the above facts of record, the Township asserts the following events occurring after the filing of the appeal. The Township asserts that it again attempted to inspect Appellants' property based on the authority of the trial court's order. Appellants again refused. The Township filed a petition for contempt with the trial court, and Appellants requested a supersedeas or stay pending the appeal. The trial court denied Appellants' request, but allowed them the opportunity to file a motion with this Court requesting a supersedeas or stay. By order dated December 20, 2001, we denied Appellants' request for an emergency supersedeas or stay of the trial court's order. Thereafter, the trial court issued an order permitting the Township to enter Appellants' premises to conduct the fire safety inspection. The Township alleges that the inspection took place on January 7, 2002. The Township alleges in its brief, however, "that without a final determination on the merits of this case" by our Court, Appellants "will not permit the Township to perform any additional fire safety inspections of the premises." The Township's Brief, p. 7. Although the Township concedes that it has already obtained the relief of inspecting Appellants' premises, it is requesting that we proceed with ruling on this appeal to establish its right to conduct presumably warrantless, annual fire safety inspections of Appellants' premises on an ongoing basis.

In light of the fact that the Township had already obtained an administrative warrant to search Appellants' premises and of the Township's allegation that it actually did inspect the premises, we must first determine whether we should proceed with the appeal or dismiss on the grounds of mootness. The trial court's order states in pertinent part that "a preliminary injunction is issued upon [Appellants] to permit representatives of the ... Township Fire Marshal's Office to enter upon the premises at 994 Easton Road, Warrington, Pennsylvania, for the purposes of conducting an annual fire safety inspection of all buildings, structures and areas located on the premises." The order implies that the representatives of the Township Fire Marshal's Office may enter Appellants' premises without a warrant, and that implication is fully supported by the trial court's supporting opinion that holds that warrantless administrative inspections do not violate any right Appellants may have under the Fourth Amendment of the United States Constitution or under the Pennsylvania Constitution. Because the trial court has authorized warrantless fire safety inspections of Appellants' premises, it is clear that the impact of the order extends beyond the Township's recent inspection of those premises. Indeed, the order may be read as enjoining Appellants from prohibiting ongoing "annual" inspections by representatives of the Township Fire Marshal's Office, although the wording of the order is not perfectly clear as to this point.⁵ The trial court was well aware that the Township was seeking the authority to conduct ongoing annual inspections. See Notes of Testimony, pp. 4, 6-7. Therefore, we conclude that the ultimate issue of this case has not been rendered moot by the fact that the Township had obtained a warrant and, more importantly, conducted a fire safety inspection of the premises. Further, even if the issue is technically moot, the issue of access to Appellants' premises is one likely to be repeated, yet evade appellate review, and the question, involving the Township's inspection of commercial properties on an annual basis as well as competing privacy rights, is one concerning important public interests. See Sierra Club v. Pennsylvania Public Utility Commission, 702 A.2d 1131 (Pa.Cmwlth.1997), aff'd, 557 Pa. 11, 731 A.2d 133 (1999). We shall therefore proceed with Appellants' appeal.

This Court's scope of review of an order granting a preliminary injunction is limited to determining whether the trial court had any reasonable grounds to support its action. We will interfere with the court's decision only if it had no grounds to support the injunction or that the rule of law relied upon by the court was palpably erroneous or misapplied. Where, however, the injunctive relief is affirmative, we may engage in a closer scrutiny to insist that the plaintiff established a clear right to relief. Borough of Emporium v. Keystone Airport Authority, 134 Pa.Cmwlth. 20, 578 A.2d 56 (1990). Appellants argue that the trial court's order must be reversed because (1) it allegedly fails to address the issues raised in the Township's complaint; (2) it allegedly "ignores" the previous order of the trial court dated May 22, 2000; (3) it allegedly bases its authority on Pa. R.C.P. Nos. 4009.31 and 4009.32(a); and (4) it is contrary to the United States Constitution.

The first three arguments of Appellants are meritless and may be disposed of quickly. They all relate to the fact that the trial court stated in its order that the order was issued following consideration of the Township's request for entry upon Appellants' premises pursuant to Pa. R.C.P. Nos. 4009.31 and 4009.32(a) and Appellants' response thereto. The trial court explained in its supporting opinion, however, that this was merely a typographical error; that the relief ordered by the court...