Pennsylvania Record

Monday, December 9, 2019

Resident's legal battle with Borough of Aldan over property's sidewalk maintenance continues

State Court

By Nicholas Malfitano | Nov 19, 2019

Sidewalk

MEDIA – The battle over enforcement of an ordinance ordering residents to maintain sidewalks adjacent to their properties continues to be waged between a Delaware County plaintiff and her borough of residence.

Katherine Epps, a resident of Aldan, initially filed suit in the Delaware County Court of Common Pleas on Feb. 20 against the Borough and its construction code official, Anthony Tartaglia.

Epps claims she was told to replace 20 sidewalk blocks and 40 feet of curb, with officials citing an ordinance requiring residents to maintain them in “good repair.” But the plaintiff claims the ordinance does not specify what that means, and maintains the sidewalk is in good condition.

Epps is seeking an order from the court barring the town from enforcing the ordinance, along with costs and fees.

“Ms. Epps is fighting an abuse of municipal power that is violating her substantive due process rights,” Epps’ attorney Tom Burns told the Pennsylvania Record.

“The town in which she lives is trying to force her to incur the expense of replacing a public right-of-way, i.e., a sidewalk, over which she exercises zero control in terms of who is permitted to use it, or how it is used. Moreover, the Town is attempting to force her to use a contractor of the Town’s choosing to replace the sidewalk.”

The ordinance that covers the upkeep of sidewalks includes a provision that householders keep those adjoining in “good repair,” a description the suit claims is too vague, and that town officials are in charge of “arbitrarily” determining what it means.

The ordinance “does not contain any objective standards from which a determination can be made about whether a sidewalk, or portions of it, are in ‘good’ or ‘bad’ repair, and that fails to specify circumstances in which a solution less than a complete replacement of the sidewalk would bring the sidewalk back into good repair,” Burns said.

Epps’ suit also alleges the town failed to provide documents following a right-to-know request. She wanted to know how the town applies the ordinance, according to the suit.

“This action should be important to every citizen of the State who, if Aldan prevails, could get a knock on their door from their Town Code Enforcement official, informing them that the sidewalk running through their property is ‘not in good repair,’ that they must pay to replace it, and they must pay a contractor selected by the Town to replace it,” Burns said.

Borough of Aldan and Epps Continue to Argue Responsibility

However, the borough countered with a response on May 2 – explaining Epps received notices from the borough in 2004, 2005, 2006, 2008 and 2010 that replacement of sidewalks and/or curbs were required upon inspection, and by virtue of the residence being a duplex property, it was subject to annual inspections for code compliance.

“By correspondence dated Nov. 20, 2017, plaintiff was notified that as part of the annual inspection, it was determined that 20 sidewalk blocks, curb and apron and 40 feet of curb needed to be replaced. Plaintiff filed to replace the deficient sidewalk and curb and thus, was not issued a use and occupancy certificate for 2017,” defense counsel John Paul McBlain said.

“In 2018, plaintiff was properly notified again by the Borough of Aldan that the deficient sidewalks and curbing needed replacement. In 2017 and 2018, plaintiff neither repaired the sidewalks and/or curbs nor filed any appeal of the code official’s decision to the Borough Council, as proved Aldan Borough Code Section 181-10.B.”

Despite Tartaglia meeting with Epps to discuss the necessary repairs to the “large corner property” and offering to spread out the repairs over a period of time to lessen the financial burden, the Borough said Epps never completed the work and as a result, received multiple citations.

The Borough further claimed that Epps failed to exhaust administrative remedies and appeal the decision of the code official to the Borough Council, failed to state a cause of action where relief could be granted, and that it was subject to qualified immunity from suit.

On May 22, Epps responded that she received correspondence from the Borough about various repairs in both 2006 and 2010; that her husband made a requested minor repair in 2006 and that she submitted a financial hardship request for the latter repair in 2010, but never heard back from the Borough.

Epps stated that an inspection took place in 2017, but that the Borough never notified her about sidewalk issues during or after the inspection and the first she learned of it was three months later, when her sidewalk was marked with orange paint.

Epps also admitted that no sidewalk repairs took place in 2017 and 2018, but that she failed to appeal because she was allegedly never informed that she was denied a certificate of occupancy or that she had a right to appeal that denial.

“Ms. Epps did meet with Mr. Tartaglia, she also spoke to the Borough Manager twice, and a councilman three times following sidewalk inspection. It is denied that the Borough ever offered Ms. Epps an opportunity to ‘repair’ sidewalks or curbs; the Borough consistently demanded that they be ‘replaced,” counsel for Epps stated.

“The allegations regarding the size of the property and extent of the sidewalk and curbing is admitted, which is why Ms. Epps informed the Borough on multiple occasions that she would never be financially capable of paying to replace 20 sections of sidewalk and curbing.”

Epps said after making the lone repair in 2006, the Borough allegedly never asked her to make further repairs and instead demanded she replace over 20 sections of the sidewalk and curbing.

Otherwise, Epps and her counsel claim that the Borough’s assertions are conclusions of law to which no responsive pleadings were necessary, and were therefore denied.

The plaintiff is represented by Thomas John Burns III in Yardley.

The defendant is represented by John Paul McBlain of Swartz Campbell, in Media.

Delaware County Court of Common Pleas case CV-2019-001368

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Delaware County Court of Common Pleas

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