Chartiers Valley Industrial & Commercial Development Authority v. City of Pittsburgh
Chartiers Valley Industrial & Commercial Development Authority v. City of Pittsburgh
Opinion of the Court
OPINION.
Chartiers Valley Industrial and Commercial Development Authority (appellant) appeals an Allegheny County Court of Common Pleas order denying appellant’s motion for a new trial and to arrest judgment against it for failure to maintain the sidewalk and curb along its premises in conformity with the standards of the Pittsburgh Building Code. The Allegheny County Court of Common Pleas heard the appeal from a default judgment entered against appellant by a Housing Court magistrate when appellant failed to appear at that proceeding.
Appellant is the record owner of commercial property at the corner of Smithfield Street and Third Avenue in Pittsburgh, known as 301 Smithfield Street. On three occasions since 1986, appellant was charged by the City of Pittsburgh (City) with failing to maintain the sidewalk and curb bordering the Third Avenue side of its premises pursuant to Title 10.1985 Section 301.5 of the Pittsburgh Building Code.
On the two prior occasions, appellant appeared and produced evidence showing that the cause for the disrepair of the abutting sidewalk and curb was the City’s failure to police vehicles parking unlawfully on the sidewalk. In these prior proceedings, appellant received suspended sentences from the Housing Court. On the third occasion, here in issue, appellant appeals the Allegheny County Court of Common Plea’s denial of a new trial and arrest of this judgment.
We note that the City is correct in asserting that the post-trial procedure followed in this case was defective. The Rules of Criminal Procedure require that, upon the entry of a verdict by a jury or a decision in a bench trial, a motion for post-trial relief will be entertained within ten days thereafter. Following the disposition of post-trial motions judgment and sentence are entered and consequently appealable.
Before this Court is an appeal taken from the denial of post trial relief. The improper posture of this appeal stems from the trial court’s error in entering judgment and sentencing prior to the filing and disposition of
We find no merit in appellant’s due process claim. Appellant’s complaint of improper notice regarding its hearing before the Housing Court would be valid were it not for the fact of the trial de novo. Appellant has enjoyed an opportunity to be heard on all the issues it wished to raise. Whatever it may have suffered by its absence from the proceedings before the Housing Court has undoubtedly been cured by the full and fair treatment appellant received in the bench trial conducted by the Allegheny County Court of Common Pleas.
Appellant’s claim that it has been subjected to double jeopardy because of the repeated citations might have
Additionally, we note that appellant has misread Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985) for the proposition that once convicted of an offense one cannot be tried again at a later date for continuing to commit that same offense. The Supreme Court’s holding in Goldhammer that suspended sentences are final and subject to the constraints of double jeopardy has no bearing on the instant matter. The suspended sentences here were ordered for separate and distinct offenses between which reasonable time had elapsed in which appellant could have made the required repairs. With respect to appellant’s continuing violation, there was no double jeopardy.
Appellant’s assertion is incorrect that res judicata and collateral estoppel bar this action by the City. It submits that because the Housing Court magistrate in the prior proceedings had concluded that appellant was guilty and that no further penalty would be imposed (neither fine nor imprisonment) that the instant citation is invalid. The magistrate’s decision to hold appellant guilty and not to impose a sentence or fine was evidently prompted by the evidence showing that the City’s own failure to enforce certain parking restrictions caused the sidewalk’s disrepair.
We hasten to mention that our conclusion here by no means suggests that the principles of res judicata and collateral estoppel might not apply to a continuing violation under other circumstances. We are mindful that public policy in encouraging compliance with regulations governing the health, safety, and general welfare requires the possibility of sanction as an enforcement device. We do not believe that on the facts before us the legal principles of res judicata and collateral estoppel apply so as to make them inconsistent with this public policy objective.
We do not find that appellant’s property has been taken in contravention of its due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. Appellant’s obligation to maintain the adjacent public sidewalk and curb does not by itself result in a taking, nor does the City’s alleged negligence in enforcing the parking restrictions. Moreover, had appellant been earnest in raising the question of a taking, appellant should have instituted proceedings in accordance with the Eminent Domain Code. See Section 502(e) of the Eminent Domain Code, Act of June 22, 1964, Spec.Sess.P.L. 84, as amended, 26 P.S. § l-502(e).
Finally, we have reviewed the entire record and are convinced that Judge Scheib’s decision in the bench trial below was based on all the evidence and testimony presented. His opinion makes reference to specific testimony supporting his finding of guilt, and ydiat is more, makes mention of his own efforts to provide an opportunity for appellant to repair the damaged sidewalk and thereby avoid sanctions. We glean from the record that the trial court considered appellant’s tactics thereafter dilatory and at the second hearing on appellant’s motion for post-trial relief, the court deemed it fruitless to suspend the sentence and fine entered on November 1, 1988. The fine, while being in
We, therefore, affirm the judgment and sentence entered against the appellant.
ORDER
NOW, January 29, 1990, the order of the Court of Common Pleas of Allegheny County, dated November 1, 1988, entered at SA 1728-88, is hereby affirmed.
. Cf. also, Constantino v. Forest Hills Borough, 128 Pa.Commonwealth Ct. 407, 563 A.2d 953 (1989). We note that the court did advise appellant of his right to pursue post-trial relief within ten days. See Reproduced Record p. 45a.
. While summary violations should be summarily handled to accomplish the goal of prompt adjudication, this goal has no application once an appeal is taken to a court of common pleas. All general provisions of the criminal rules become applicable to a trial de novo, unless specifically made inapplicable. Commonwealth v. Koch, 288 Pa.Superior Ct. 290, 431 A.2d 1052 (1981).
Reference
- Full Case Name
- CHARTIERS VALLEY INDUSTRIAL AND COMMERCIAL DEVELOPMENT AUTHORITY v. CITY OF PITTSBURGH
- Cited By
- 5 cases
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- Published