Opinion
No. 1939 C.D. 2012
07-18-2013
Commonwealth of Pennsylvania v. Michele Tomlins, Appellant
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Michele Tomlins (Tomlins), landlord of 301-305 Cherry Street, McDonald, Pennsylvania, appeals the order of the Court of Common Pleas of Washington County (Trial Court), which found her guilty of violating Section 10-110(2) (accumulated garbage on her property) and Section 10-401(B) (unreasonable noise) of the McDonald Borough Ordinance (Ordinance), and fined her $300.00 per violation.
On February 21, 2012, William Nimal (Officer Nimal), code enforcement officer for the Borough of McDonald, responded to a noise complaint at 301 Cherry Street (Property). Officer Nimal issued a citation (sent by summons) to Tomlins as landlord for "excessive noise" in violation of Section 10-401(B) of the Ordinance. On March 12, 2012, Officer Nimal found large amounts of garbage overflowing from a dumpster on the same site and issued a citation (sent by summons) to Tomlins for "accumulated garbage" on her property, in violation of Section 10-110(2) of the Ordinance. The Magisterial District Judge found Tomlins guilty of both violations, fining her $300.00 for each citation. Tomlins pursued a summary appeal to the Trial Court.
At the hearing on September 13, 2012, Officer Nimal testified that he did not believe Tomlins or Don Tomlins (Don), Tomlins's husband and the primary caretaker of the Property, were at the Property when the citation was issued, nor did Officer Nimal issue a citation to anyone present or identify to Tomlins who was responsible for the noise. Notes of Testimony, September 13, 2012, (N.T.) at 10-15, 20-22; Reproduced Record (R.R.) at 21a-26a, 31a-33a. Officer Nimal testified that he did not have any evidence that Tomlins, or Don, placed the garbage there, and that he believed the dumpster was otherwise compliant with borough ordinances. N.T. at 18-20, R.R. 29a-31a.
Don testified that he was the chief caretaker; Tomlins was the owner in name only and took little "hands on" care of the Property. N.T. at 23; R.R. at 34a. Don also stated that his wife did not have any physical or mental disabilities that would prevent her from inspecting the site. N.T. at 27-28; R.R. at 38a-39a. Tomlins lives forty-five to fifty minutes away from the Property and did not personally inspect the dumpster. Don confirmed that neither he nor his wife was present at the Property when either citation was issued. N.T. at 25-26, 28; R.R. at 36a-37a, 39a. Each apartment is separately leased, however Don stated that he had not read the lease for several years and was unfamiliar with its terms. N.T. at 29-31; R.R. 40a-42a.
A copy of the lease was not entered into evidence.
On September 14, 2012, the Trial Court dismissed Tomlins's summary appeal, found her guilty of both violations, and fined her $300.00 for each violation, plus costs:
By way of further explanation, it is undisputed that the Defendant [Tomlins] owns improved property where the incidents took place, that said property is leased to tenants and that the Defendant [Tomlins] does not reside at said property. This Court found the testimony of Plaintiff's witness, the [B]orough Code Enforcement Officer, to be credible—there was rubbish overflowing the garbage dumpster on Defendant's [Tomlins's] property and loud noises were emanating from the property due to a party in one of the apartments. The defendant's [Tomlins's] defense is that she is an out of possession landlord. Consequently, they [sic] cannot be cited and held responsible for the actions of their [sic] tenants.
The defendant [Tomlins] relied upon Whitely et. al. v. Mortgage Service Corporation, Trustee, 337 Pa. 475, 12 A.2d 9 (1940). Therein, neighbors of an out of possession landlord sought to enjoin the landlord, as well as the lessee and sub-lessee, from conducting an automobile repair and paint shop. The neighbors claimed the business was interfering with the quiet enjoyment of their property, which was zoned residential. The Supreme Court pronounced that it would be 'an unreasonable burden' upon an out of possession landlord to be responsible for the conduct of those occupying their premises.
This case, however, has a very different origin. The Whitely case was one of equity and the remedy requested was injunctive because the issue concerned the manner in which property could be used on a daily basis. Herein, no equitable remedy is sought and the manner in which the property can regularly be used is not in question. The Borough, through the Commonwealth, is seeking the imposition of a fine, a remedy at law. There is specific statutory authority prohibiting any 'nuisance, including
but not limited to accumulations of garbage or rubbish... permitting enforcement against either the "owner or occupier.' 53 Pa. C.S. §46202(5) [sic]. The Borough adopted ordinances pursuant to the enabling statutory authority and equity only has jurisdiction if there is not adequate remedy at law. Id. at §§46202(6), (74): Germantown Business Association v. City of Philadelphia, 111 Pa. Cmwlth. 503, 534 A. 2d (1987).Trial Court Opinion, September 14, 2012 at 1-2, R.R. at 10a-11a.
The correct citation is: Section 1202(4) of the Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. §46202(4).
Tomlins contends that the Trial Court erred when it convicted her of both the "excessive noise" and the "accumulated garbage" citations because she was not present for the illegal conduct, nor had knowledge nor consented to the violations. Tomlins claims that as an out-of-possession landlord, she has no responsibility for the actions of her tenants.
This Court's review is limited to determining whether there has been an error of law or whether the findings of the trial court are unsupported by competent evidence. Commonwealth v. Mesler, 732 A.2d 21 (Pa. Cmwlth. 1999).
Section 10-402 of the Ordinance provides that it is unlawful for anyone to maintain a property as a nuisance in the Borough of McDonald. Section 10-403 of the Ordinance defines nuisances as:
The Trial Court appears to have erroneously convicted Tomlins for violating Section 10-401(B) of the Ordinance, which states the purpose of the legislation, as opposed to Section 10-402 of the Ordinance, which states the offense itself. The relevant sections of the Ordinance state:
§10-401. Reason for Legislation.
It is found by Borough Council for the Borough of McDonald that:
...
(B) The use of property may constitute a nuisance by use of the property which allows for excessive and/or unreasonable noise, ... accumulation of inappropriate substances, ... and/or unreasonable disturbances.
§10-402. Nuisance Prohibited.
It shall be unlawful for any person to make, maintain, use property, real or personal, as a nuisance in the Borough of McDonald.
(B) Acts, omissions or use of property which allows for unreasonable noise... (C) Violation of Borough of McDonald Ordinance regarding 'noise' on more than one occasion... (H) Any other acts which unreasonably interfere with the use and enjoyment of the property of another or the use of property by another.
Tomlins neither contests her ownership of the Property (N.T. at 6; R.R. at 17a), nor the fact that there was unreasonable noise coming from the property when the citation was issued.
Section 10-110 of the Ordinance provides that "[n]o person, firm or corporation shall place, leave, dump or permit to accumulate any garbage, rubbish, debris or trash in any building or in a premises upon any alley, roadway in McDonald Borough." Tomlins does not contest that there was "accumulated garbage" on the Property when the citation was issued.
Tomlins claims that Whiteley v. Mortgage Service Co., 337 Pa. 475, 12 A.2d 9 (1940), dictates that as an out-of-possession landlord, Tomlins should not be held liable for the conduct of her tenants, and therefore, she cannot be convicted of either offense. In Whiteley, our Pennsylvania Supreme Court was confronted with whether an owner of leased premises was properly included in an order that restrained a nuisance created upon the premises by a sub-lessee, over whose acts the owner had no control. Whiteley, 337 Pa. at 475, 12 A.2d at 9. Mortgage Service Co. owned a two-story garage leased to Richards-Fischer Co. for use as a Ford sales and service agency, which sublet a room for use as an automobile repair and paint shop. Howard Whiteley, as a resident of an adjacent street, sought to enjoin the owner, lessee, and sub-lessee from conducting the repair shop because it violated the peaceful enjoyment of neighboring homes. The Court of Common Pleas of Philadelphia County issued an order and restrained the defendants, including the property owner, from repairing automobiles unless the defendants either soundproofed the room, or moved the repairs to another part of the facility to eliminate the noise. The Common Pleas Court reasoned that unless the owner was enjoined as well, the residents would be forced to bring suit every time a new tenant took control of the property and began using it improperly. Mortgage Service Co. appealed and the sole question before the Supreme Court was whether the owners were properly included in the restraining order. Id. at 476, 12 A.2d at 10.
In Whiteley, the Supreme Court held that it was unreasonable to place the burden on an out-of-possession property owner for the tenant's actions over which it had no control. The Supreme Court distinguished Mortgage Service Co.'s position from other property owners who could be held liable for their tenants' conduct because there was nothing inherent in the sales agency's ordinary operations that would necessarily create a nuisance; rather, the way in which this particular tenant used the property created the nuisance. "The straightening of automobile bodies and fenders is not essential to, nor a usual incident of, the conduct of a sales agency, garage and general repair shop. The purposes for which the building was leased could have been fully realized without the performances of this particular work therein." Whiteley, 337 Pa. at 476, 12 A.2d at 10. The Court stated that because Mortgage Service Co. exercised no control over the acts of the tenant, and did not authorize or participate in the nuisance, it could not be held responsible for the objectionable conduct of the occupants.
This Court agrees with Tomlins that Whiteley dictates she was improperly cited for unreasonable noise under Section 10-402 of the Ordinance. As in Whiteley, there is nothing inherent in the leasing of residential apartments that would lead to unreasonable noise on the property. As Officer Nimal and Don testified, neither Don nor Tomlins was present when the noise violation occurred, and Tomlins neither authorized nor condoned the use of the property by the tenants in this way. N.T. at 15; R.R. at 26a. This Court agrees with the Court in Whiteley, that it was unreasonable to impose a burden on Tomlins to constantly monitor the property for any potential violations that did not arise out of its normal use.
However, insofar as Tomlins claims that Whiteley absolves her from maintaining the garbage receptacle on her leased property, this Court agrees with the Trial Court that the Borough had the authority to cite her for the "accumulated garbage". Section 1202(4) of the Borough Code, 53 P.S. §46202(4), states that a borough may require either the owner or occupier to remove accumulated garbage on the Property. Accordingly, the Borough enacted Section 10-110 of the Ordinance pursuant to this enabling authority. Although Whiteley held that it would be unreasonable for a landlord to monitor the property for nuisances not necessitated by the nature of the property, accumulated garbage is a nuisance that could normally arise with the use of property as apartment buildings. This Court agrees with the Trial Court that requiring an out-of-possession owner of an apartment building to monitor the property for the accumulation of garbage occurring in its normal use is not unreasonable and in accord with Whiteley.
Section 1202(4) of the Borough Code, 53 P.S. §46202(4), provides:
(4) Nuisances and dangerous Structures. To prohibit and remove any nuisance or dangerous structure on public or private grounds, including but not limited to accumulations of garbage and rubbish.... The borough may require the removal of any nuisances or dangerous structure by the owner or occupier of the grounds....--------
Accordingly, this Court affirms Tomlins's conviction of violating Section 10-110(2) of the Ordinance, and reverses the conviction under Section 10-401(B) of the Ordinance.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 18th day of July, 2013, the order of the Court of Common Pleas of Washington County dated September 14, 2012, in the above-captioned matter is affirmed with respect to Section 10-110(2) of the McDonald Borough Ordinance for accumulated garbage and reversed with respect to Section 10-401(B) of the McDonald Borough Ordinance for excessive noise.
/s/_________
BERNARD L. McGINLEY, Judge