Com. v. A.S. Kanofsky ( 2017 )


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  •                IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Commonwealth of Pennsylvania                  :
    :
    v.                            :   No. 1938 C.D. 2016
    :   Submitted: May 5, 2017
    Alvin S. Kanofsky,                            :
    Appellant       :
    BEFORE:         HONORABLE P. KEVIN BROBSON, Judge
    HONORABLE JULIA K. HEARTHWAY, Judge
    HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE BROBSON                                  FILED: August 14, 2017
    Appellant Alvin S. Kanofsky (Kanofsky), pro se, appeals from sixteen
    orders of the Court of Common Pleas of Northampton County (trial court), dated
    August 24, 2016. Following a de novo hearing, the trial court found Kanofsky
    guilty of thirty-one summary criminal charges for violations of certain provisions
    of the International Property Maintenance Code (2009 ed.) (IPMC) and the
    Pennsylvania Uniform Construction Code (UCC),1 both of which have been made
    part of the Codified Ordinances of the City of Bethlehem, Pennsylvania
    (Ordinance).2 For the reasons set forth below, we affirm the trial court’s orders.
    1
    
    34 Pa. Code §§ 401.1-405.42
    .
    2
    Article 1733 of the Ordinance adopted the IPMC with certain additions, deletions, and
    modifications as noted therein. Article 1701 of the Ordinance adopted the UCC with certain
    additions, deletions, and modifications as noted therein.
    Kanofsky is the owner of commercial property located at 30 East
    Third Street (Property) in the City of Bethlehem (City). In February 2016, Craig
    B. Hynes (Hynes), the City’s chief code official, issued thirty-one citations to
    Kanofsky, sixteen for failure to obtain a certificate of occupancy for the Property
    in violation of Section 403.46 of the UCC3 and fifteen for failure to repair the
    Property’s leaking roof in violation of Section 304.7 of the IPMC.4
    On April 5, 2016, after holding a summary trial, a Magisterial District Judge
    (MDJ) found Kanofsky guilty of all thirty-one violations, fined Kanofsky in the
    amount of $29,700, plus costs, and sentenced him to a period of imprisonment.
    Kanofsky appealed the MDJ’s determinations to the trial court. The
    trial court held a de novo hearing on August 24, 2016. At the hearing, the City5
    presented the testimony of Hynes. Hynes explained that these proceedings are just
    3
    Section 403.46 of the UCC provides, in relevant part: “(a) A building, structure or
    facility may not be used or occupied without a certificate of occupancy issued by a building code
    official.”
    4
    Section 304.7 of the IPMC provides: “Roofs and drainage. The roof and flashing shall
    be sound, tight and not have defects that admit rain. Roof drainage shall be adequate to prevent
    dampness or deterioration in the walls or interior portion of the structure. Roof drains, gutters
    and downspouts shall be maintained in good repair and free from obstructions. Roof water shall
    not be discharged in a manner that creates a public nuisance.” (Emphasis in original.)
    On each of February 4-5, 8, 10-12, 16-19, and 22-26, 2016, Hynes issued two citations to
    Kanofsky, one for failure to obtain a certificate of occupancy for the Property in violation of
    Section 403.46 of the UCC and another for failure to repair the Property’s leaking roof in
    violation of Section 304.7 of the IPMC. On February 9, 2016, Hynes issued a citation to
    Kanofsky for failure to obtain a certificate of occupancy in violation of Section 403.46 of the
    UCC.
    5
    The City assumed responsibility for the prosecution of the violations of its Ordinance on
    behalf of the Commonwealth of Pennsylvania (Commonwealth). All references to the City shall
    also be considered references to the Commonwealth.
    2
    another step in a lengthy process involving uncorrected violations at the Property.
    (Reproduced Record (R.R.) at 30-31.) Hynes stated that the City first informed
    Kanofsky about the subject violations in 2014. (Id. at 30-31.) Approximately two
    years later, after Kanofsky was given an opportunity to cure the violations, Hynes
    issued citations to Kanofsky and the parties appeared before a magisterial district
    judge.   (Id. at 33, 35-36.)   During those proceedings, the parties agreed to a
    timeline for the completion of certain repairs to the Property.         (Id. at 33, 36.)
    When the parties returned to the magisterial district judge, the majority of the
    repairs had not been completed. (Id. at 33, 36.) The magisterial district judge
    found Kanofsky guilty, and Hynes informed Kanofsky that he would begin issuing
    daily citations for the violations. (Id. at 30, 33, 36.) Subsequent thereto, in
    February 2016, Hynes visited the Property on sixteen different dates and cited
    Kanofsky on each of those dates for failure to obtain a certificate of occupancy in
    violation of Section 403.46 of the UCC and for failure to repair the Property’s
    leaking roof in violation of Section 304.7 of the IPMC. (Id. at 33-35; Certified
    Record (C.R.), Ex. C-8.)
    Hynes testified further that the Property is in a substantially
    deteriorated condition; the building’s roof has partially collapsed and water is
    leaking into the adjacent structure. (R.R. at 31, 35.) Hynes explained that on the
    third floor of the building one of the roof trusses has failed, the roof has collapsed
    in certain places, light is entering the building through the collapsed roof, ceiling
    material, insulation, and the failed truss litter the floor, and mold is growing on the
    walls. (Id. at 31.) Hynes also explained that water has entered the second floor of
    the building, causing a portion of the ceiling to deteriorate and fall, the wood floor
    to buckle, and a floor joist to deteriorate. (Id. at 31-32.) Hynes indicated that the
    3
    Property’s leaking roof has persisted since 2007. (Id. at 32.) At that time, in order
    to prevent the water from destroying the building, Kanofsky had placed
    thirty-gallon trash barrels on the third floor to collect the water entering through
    the roof and then had pumped the water into the drainage or sanitary system using
    two small pumps. (Id.)
    Hynes also testified that as of the date of the hearing, none of the
    Property’s roof defects had been repaired. (Id. at 43.) When asked whether the
    Property’s current condition presents a danger to the public, Hynes stated that if
    the roof is not repaired, the entire building could collapse. (Id. at 35.)         He
    explained that a heavy rain or snow could cause the roof to fail, and, if the roof
    fails, the walls could fall, the floors could pancake, and the entire building could
    collapse. (Id.) Hynes also stated that as a result of water pouring into the building
    on the south wall, the stucco has buckled, cracked, and separated approximately
    fourteen to eighteen inches away from the building and is in imminent danger of
    falling onto an adjacent, vacant property.      (Id.)   Hynes testified further that
    Kanofsky is also storing materials inside the building located on the Property. (Id.)
    Hynes explained that the storage of these items at the Property requires a certificate
    of occupancy, which Kanofsky does not have and has never had during the sixteen
    years that Hynes has been employed by the City. (Id. at 32-33, 43.)
    Kanofsky, who was acting pro se, made a statement at the hearing on
    his own behalf. Kanofsky stated that he had used the Property in prior years as a
    flea market, for a drama club, and for a music club, and that at those times, he had
    a certificate of occupancy for the Property. (Id. at 44-45.) Kanofsky stated further
    that at some point later, he decided to close the flea market and use the Property to
    store his research and personal items. (Id. at 45.) Kanofsky claimed that the City
    4
    knew that he was using the Property for this purpose and had permitted it.                  (Id.)
    Nevertheless, Kanofsky admitted to the trial court that he did not have a certificate
    of occupancy for the Property. (Id. at 44.) Kanofsky also acknowledged receiving
    notices from the City in 2014, regarding violations at the Property. (Id. at 45.)
    Kanofsky claimed that he began to address these violations and had obtained
    estimates for the required work, but the contractors could not work on the exterior
    of   the    building     during     the    winter     months.         (Id.)       Nonetheless,
    on cross-examination, Kanofsky admitted that since the time that he had been
    notified of the violations at the Property, spring, summer, and fall of 2015, and
    spring and summer of 2016 had passed, and no work had been performed to correct
    the roof defects. (Id. at 46-47.) Kanofsky further admitted that since he had been
    found to have violated the Ordinance and had been convicted on previous citations,
    he had not done anything to correct the roof defects or obtain a certificate of
    occupancy for the Property. (Id. at 47.)
    At the conclusion of the hearing, the trial court found Kanofsky guilty
    of all charges, fined him in the amount of $29,700, plus court costs, and sentenced
    him to five days of imprisonment.6 Kanofsky then appealed to this Court.7
    6
    The trial court imposed the following fines against Kanofsky: (1) a $200 fine plus costs
    for Kanofsky’s February 4, 2016 offense of failure to obtain a certificate of occupancy in
    violation of Section 403.46 of the UCC; (2) a $1,000 fine plus costs for each of Kanofsky’s
    February 4-5, 8, 10-12, 16-19, and 22-26, 2016 offenses of failure to repair the Property’s
    leaking roof in violation of Section 304.7 of the IPMC; (3) a $500 fine plus costs for Kanofsky’s
    February 5, 2016 offense of failure to obtain a certificate of occupancy in violation of
    Section 403.46 of the UCC; and (4) a $1,000 fine plus costs for each of Kanofsky’s
    February 8-12, 16-19, and 22-26, 2016 offenses for failure to obtain a certificate of occupancy in
    violation of Section 403.46 of the UCC.
    At the conclusion of the August 24, 2016 hearing, the trial court also found Kanofsky
    guilty of another violation of Section 304.7 of the IPMC and fined Kanofsky in the amount of
    (Footnote continued on next page…)
    5
    On appeal,8 Kanofsky appears to argue that the summary convictions
    should be overturned because he was not responsible for the condition of and
    damage to the Property and he had permission to store his personal items at the
    Property.9 In response, the City argues that the trial court properly convicted
    Kanofsky of violating Section 304.7 of the IPMC and Section 403.46 of the UCC
    because the evidence supporting such convictions was overwhelming.
    In Commonwealth v. Spontarelli, 
    791 A.2d 1254
     (Pa. Cmwlth. 2002),
    we previously noted that “[i]n summary offense cases, the Commonwealth is
    required to establish” guilt beyond a reasonable doubt. Spontarelli, 
    791 A.2d at 1258
    . This Court views “all of the evidence admitted at trial, together with all
    reasonable     inferences     therefrom,      in       the   light   most   favorable     to   the
    Commonwealth.” 
    Id.
     “The test of sufficiency of evidence is whether the trial
    court, as trier of fact, could have found that each element of the offenses charged
    (continued…)
    $1,000, plus court costs at docket number SA-150-2016. Kanofsky appealed that conviction, and
    his appeal is currently pending before this Court at docket number 1955 C.D. 2016.
    7
    Kanofsky initially filed his appeal with the Pennsylvania Superior Court. By order
    dated October 11, 2016, the Superior Court transferred the matter to this Court, as this Court has
    exclusive jurisdiction over the matter pursuant to Section 762(a)(4) of the Judicial Code, 42 Pa.
    C.S. § 762(a)(4).
    8
    In reviewing a summary conviction matter, where the trial court has taken additional
    evidence in de novo review, our standard of review is limited to considering whether the trial
    court abused its discretion or committed an error of law. Commonwealth v. Spontarelli,
    
    791 A.2d 1254
    , 1255 n.2 (Pa. Cmwlth. 2002).
    9
    In the “Questions Asked” section of his brief, Kanofsky identifies fourteen issues for
    consideration by this Court on appeal. The majority of Kanofsky’s issues, however, involve
    matters that are irrelevant and in no way relate to this appeal and/or have no basis in the record.
    As a result, such issues are not properly before this Court and will not be addressed in this
    opinion.
    6
    was supported by evidence and inferences sufficient in law to prove guilt beyond a
    reasonable doubt.” 
    Id.
     “As a reviewing court, this Court may not reweigh the
    evidence and substitute our judgment for that of the fact-finder.” Commonwealth
    v. Hoffman, 
    938 A.2d 1157
    , 1160 n.10 (Pa. Cmwlth. 2007).                            “[M]atters of
    credibility and evidentiary weight are within the exclusive discretion of the
    fact-finder below . . . .” Carr v. State Bd. of Pharmacy, 
    409 A.2d 941
    , 944
    (Pa. Cmwlth. 1980). “[T]he fact-finder is free to believe all, part or none of the
    evidence presented.” Hoffman, 
    938 A.2d at
    1160 n.10.
    Here, the trial court found Kanofsky guilty of sixteen summary
    criminal offenses for failure to obtain a certificate of occupancy for the Property in
    violation of Section 403.46 of the UCC and fifteen summary criminal offenses for
    failure to repair the Property’s leaking roof in violation of Section 304.7 of the
    IPMC. Although the trial court did not set forth its credibility determinations in
    writing,10 we can infer that the trial court found Hynes’s testimony to be credible
    and Kanofsky’s testimony to be not credible. Hynes’s credible testimony supports
    the trial court’s conclusions in this matter.11               By arguing that the summary
    convictions should be overturned because he was not responsible for the condition
    of and damage to the Property and he had permission to store his personal items at
    the Property, Kanofsky is essentially asking this Court to adopt his preferred
    version of events and, in so doing, to reweigh the evidence and make different
    10
    In its 1925(a) opinion, the trial court indicated that it was relying on the record and that
    no further statement was necessary. (Trial Ct. Op., dated Sept. 29, 2016.)
    11
    Our review of the record further reveals that the trial court rejected some of the
    testimony and documents upon which Kanofsky attempts to rely in support of his arguments as
    irrelevant upon the City’s objection.
    7
    credibility determinations.   This we cannot and will not do.   See Hoffman,
    
    938 A.2d at
    1160 n.10.
    Accordingly, we affirm the trial court’s orders.
    P. KEVIN BROBSON, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Commonwealth of Pennsylvania          :
    :
    v.                        :   No. 1938 C.D. 2016
    :
    Alvin S. Kanofsky,                    :
    Appellant     :
    ORDER
    AND NOW, this 14th day of August, 2017, the orders of the Court of
    Common Pleas of Northampton County are hereby AFFIRMED.
    P. KEVIN BROBSON, Judge
    

Document Info

Docket Number: Com. v. A.S. Kanofsky - 1938 C.D. 2016

Judges: Brobson, J.

Filed Date: 8/14/2017

Precedential Status: Precedential

Modified Date: 8/14/2017