Commonwealth Court Cases - Commonwealth Court Case Law from PA - Pennsylvania Commonwealth Court

Microsoft Word - 1267CD04.doc

	ROMINGER LEGAL
		Pennsylvania Court Cases and Opinions - PA Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case was taken from the Pennsylvania Courts. Search our site for more cases - CLICK HERE

MOST CURRENT PENNSYLVANIA SUPERIOR COURT CASES

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia
:

:
v.

:

:
Steen Outdoor Advertising
:
and 700 North Delaware Avenue
:

: No. 1267 C.D. 2004
Appeal of: Steen Outdoor Advertising :
City of Philadelphia
:

:
v.

:

:
Steen Outdoor Advertising
:
and 700 North Delaware Avenue
:

: No. 1329 C.D. 2004
Appeal of: Steen Outdoor Advertising :
City of Philadelphia
:

:
v.

:

:
Steen Outdoor Advertising
:
and 700 North Delaware Avenue
:

: No. 1330 C.D. 2004
Appeal of: Steen Outdoor Advertising : Argued: February 28, 2005
BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION NOT REPORTED
MEMORANDUM OPINION
BY PRESIDENT JUDGE COLINS

FILED: March 17, 2005

Steen Outdoor Advertising appeals the orders of the Court of
Common Pleas of Philadelphia County in an action filed by the City of
Philadelphia to enforce a violation notice issued for an accessory sign located at
700 North Delaware Avenue. The orders appealed 1) granted the enforcement
request and directed the payment of daily fines from October 4, 2001 through May
4, 2002 and ordered removal of the accessory sign within 30 days with additional
daily fines for failure to comply; 2) denied Steen's motion for leave to file an
amended answer; and 3) denied Steen's post-trial motion/petition for
reconsideration as untimely.

The relevant facts, as set forth in the trial court's opinion, are as
follows. In June 1998, Steen obtained a zoning and use registration permit to erect
an accessory sign to an existing nightclub, dance hall, and restaurant located at 700
North Delaware Avenue.1 Pursuant to the Philadelphia Zoning Code an accessory
sign is restricted to advertising incidental to the business conducted at the
premises. In September 2001, the City's Department of Licenses and Inspections
issued a violation notice that the sign was being used or maintained in violation of
the zoning code and that Steen was maintaining a non-accessory sign without a
zoning or registration permit. The notice directed that the violations be corrected

1 The owner of the Delaware Avenue property is not involved in the present matter.

within 30 days, that is, that Steen obtain the necessary permits or cease the
improper use. Steen failed to perfect a timely appeal of the violation notice.2

In October 2001, the City filed a complaint in equity, averring Steen's
failure to abate the violations and seeking an order to enjoin the ongoing violation
and to direct the payment of fines for each day the violation went uncorrected since
issuance of the violation notice. Steen admitted that the violation notice was
issued, but denied that it was in violation, averring that at all times the sign's
advertising copy was strictly incidental to the nightclub, dance hall, and restaurant
operated at the premises. In new matter Steen averred, inter alia, discriminatory
and selective enforcement and that removal of the sign was excessive. Steen filed
a counterclaim in the nature of a declaratory judgment action. On preliminary
objection, the trial court dismissed the counterclaim with prejudice.

By order dated May 4, 2004, the trial court found that Steen failed to
appeal the violation and that its advertisements were not strictly incidental to the
use of the premises. It granted the City's enforcement petition, directing removal
of the non-complying advertising within 30 days, and imposed daily fines. The
court concluded that the sign's advertising was not strictly incidental to the
business operated at the premises within the meaning of the zoning code's
definition of accessory sign. The court further concluded that all issues that Steen
could have raised in an appeal of the violation notice were waived. The trial court

2 Steen erroneously filed his appeal with the Board of License and Inspection Review
instead of the Zoning Board of Adjustment. (Answer and New Matter, Exhibits C and D.) Steen
simultaneously filed a complaint in declaratory judgment against the City; the complaint was
dismissed on preliminary objections for failure to exhaust administrative remedies. This Court
affirmed in H.A. Steen Industries, Inc. v. City of Philadelphia Dept. of Licenses and Inspections,
Pa. Cmwlth. No. 1999 C.D. 2002, filed April 22, 2003, petition for allowance of appeal denied,
No. 352 EAL 2003, filed February 24, 2004.

2

denied Steen's motion to file an amended answer and denied its post-trial motion
as untimely filed.

On appeal, Steen argues that the trial court's procedure of imposing a
fine without a hearing or a factual record violates its due process rights, that the
court erred in holding that Steen waived all issues related to the violation notice by
its failure to appeal because it still has valid zoning and use registration permits to
operate the sign, that the court abused its discretion by failing to grant Steen's
motion for leave to amend its answer, that the court erred in its interpretation of the
zoning code, and that Steen's post-trial motion was timely with reference to the
date the court's May 4, 2004 order was docketed.

Steen's due process claims are grounded in its contention that it was
entitled to a hearing at which to present defenses, argue the merits of the City's
claims, and offer evidence in mitigation of the sanctions or evidence of subsequent
compliance. Steen also argues that the City's complaint represents an attempt by
the City to establish a procedure that contravenes the usual and customary practice,
which is a code enforcement hearing in Municipal Court followed by a trial on the
merits. The City counters with the contention that Steen is precluded from raising
any defenses to the City's equity action because Steen's claims were rejected in
H.A. Steen Industries v. City of Philadelphia, Pa. Cmwlth. No. 1999 C.D. 2002,
petition for allowance of appeal denied, No. 352 EAL 2003, filed February 24,
2004, based on its failure to exhaust its administrative remedies.

Although we agree with the City that as to the enforcement of the
violation notice Steen failed to exhaust its administrative remedies and thereby
waived any challenge to the fact of the violations cited therein and any challenge to

3

the City's interpretation of the zoning ordinance that could have and should have
been addressed in an appeal, we take no position as to whether all of the issues
raised in the City's complaint and Steen's answer are thereby waived. Under the
rules of civil procedure, which govern civil actions filed in the courts of common
pleas, Steen was entitled to a hearing before the trial judge ruled and imposed
penalties. The City's complaint in equity averred the facts as embodied in the
violation notice and requested injunctive relief and the imposition of fines under
the terms of the zoning code. In its answer Steen disputes many if not all of the
complaint's allegations, leaving issues of disputed fact.

Civil Rule 1038(a), pertaining to trial without a jury, provides that the
trial of an action by a judge sitting without a jury is to be conducted as nearly as
may be as a trial by jury is conducted and that the parties have like rights and
privileges. Pa. R.C.P. No. 1038(a). Under Rule 1517, which was effective at the
time of the May 4, 2004 order, the trial court was obligated to issue an
adjudication, based on the testimony, that recited findings of all facts that were
necessary to determination of the issues with a discussion of the questions of law
and the court's conclusions of law. Pa. R.C.P. No. 1517(a).3 Even if it were
undisputed that Steen was in violation of the zoning code at the time the violation
notice issued, Steen had a right to a hearing at which the City would have the
burden of proving the duration of the violation and Steen would have the
opportunity to refute the City's evidence or offer evidence to mitigate the fines
sought. We agree with Steen that the trial court erred when it issued its decision
without a hearing or a pending motion.

3 Pa. R.C.P. No. 1517 was rescinded December 16, 2003, effective July 1, 2004. After
July 1, 2004, Rule 1038 governs the decision in a trial without a jury.

4

Post-trial motions must be filed within 10 days after the filing of the
decision in the case of a trial without a jury. Pa. R.C.P. No. 227.1. Because the
trial court's May 4, 2004 order was docketed on May 5, 2004, and the tenth day
thereafter fell on a Saturday, Steen's motion was timely filed on May 17, 2004, the
Monday following the tenth day. The trial court erred in dismissing Steen's post-
trial motion as untimely.

Accordingly, the order of the trial court is vacated, and this matter is
remanded for a hearing and new determination. 4

JAMES GARDNER COLINS, President Judge

4 Because we conclude that the trial court erred in not conducting a hearing and remand
on that basis, we need not address the remaining issues raised by Steen.

5

O R D E R

AND NOW, this 17th day of March 2005, the order of the Court of
Common Pleas of Philadelphia County in the above-captioned matter is vacated,
and this matter is remanded for a hearing and new decision.

Jurisdiction is relinquished.

JAMES GARDNER COLINS, President Judge