PENNSYLVANIA RECORD

A three-judge state appellate court panel has affirmed an earlier ruling by a Philadelphia

Common Pleas Court judge that upheld a decision by the City of Philadelphia to demolish a building it deemed unsafe.

The Commonwealth Court panel on June 22 issued a ruling affirming the trial court’s decision to allow workers with the city’s Department of Licenses and Inspections to demolish a building at 5930 Walnut St. in downtown Philadelphia that was owned by Urban Market Development Inc.

In February 2010, the city filed for an injunction ordering the development company to make repairs to its property that officials contended “presented a serious and immediate hazard to the safety, health and welfare of the public.”

The city simultaneously sought an order allowing L&I officials to demolish the property should the developers fail to make the appropriate repairs in a timely manner.

In a Nov. 18, 2010, ruling, a Philadelphia Common Pleas Court judge directed the demolition of the property, finding that the development company’s principal failed to produce an engineering report that described the structural condition of the property in question.

The trial court found credible the testimony of an L&I inspector who determined that despite some remedial roofing work undertaken by the company’s president, identified as Napoleon Vaughn, the property remained in an unsafe condition and presented an imminent threat to the health, safety and welfare of the public, the appellate court ruling states.

In late 2010, Vaughn filed a pro se notice of appeal of the trial court’s order, which was followed up by a motion by the city to quash the appeal; city lawyer’s argued that Vaughn had no standing.

On June 7, 2011, the Commonwealth Court issued a per curiam order granting the city’s motion to quash and dismissing Vaughn’s appeal.

Vaughn soon retained legal counsel who subsequently filed a motion for reconsideration. The appellate court granted the motion to reconsider on July 8, 2011, thus vacating its earlier dismissal of the plaintiff’s appeal.

On appeal, the plaintiff argued that its procedural due process rights as title owner of the property were violated because the city mistakenly brought its action against Urban Market Development Inc. instead of Urban Market Developers Inc., thus allegedly failing to provide proper notice.

The appellate court panel, however, found that the plaintiff did not suffer “demonstrable prejudice,” a requirement in determining whether a plaintiff’s due process rights were violated.

“Upon review of the transcripts from each of the three hearings held in this matter, and specifically the testimony of Mr. Vaughn, who participated fully at each hearing, and presented testimony of his contractor, who identified himself as ‘contractor for Urban Market Developers,’ we cannot conclude that UMD suffered any lack of notice, or opportunity to be heard, or that it has established the type of demonstrable prejudice required to prove that its due process rights were violated,” the ruling states. “Before the trial court, over the course of three hearings held over a three-month period, Mr. Vaughn never raised an issue of mistaken identity or lack of notice, never requested that the trial court substitute the proper party name, and vigorously defended the City’s action on its merits.”

The ruling states that the appellate court has held, pursuant to the doctrine of idem sonans, that as long as “misspelling is adequate to identify the person whose name is in question and does not cause a litigant prejudice, the doctrine … will be applied to uphold the validity of [the proceeding] that contains a misspelled name.”

On appeal, the developer also argued that the trial court erred in deeming the property an “imminently dangerous structure,” since the city allegedly failed to provide the developer with the proper notice that the property was in imminent danger of failure or collapse beforehand.

The developer also argued that the city had failed to provide him with the proper notice specifying the repair required to render the structure once again safe.

The appellate panel, however, found no error in the trial court’s determination, writing that the violation notice provided to the developer by L&I specified the repairs that would be needed in order to deem the structure safe.

“The notice instructed UMD to make the repairs or demolish the structure in whole or in part, and advised that if UMD failed to comply, the City could eliminate the unsafe condition by demolition,” the ruling states.

The ruling further states that while the trial court was not required to find that the property was in an imminently dangerous condition, it did so regardless, based upon the credible testimony of the L&I inspector.

“We find no error or abuse of discretion in the trial court’s order to demolish the Property,” the ruling states.

The ruling was signed by Senior Commonwealth Court Judge James Gardner Colins. Fellow Judges Dan Pellegrini and Anne E. Covey joined in the decision.