IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joan Cicchiello, : Appellant : : No. 776 C.D. 2014 v. : : Submitted: November 26, 2014 Mt. Carmel Borough : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: March 23, 2015 Joan Cicchiello (Cicchiello) appeals pro se from the December 2, 2013 order of the Court of Common Pleas of Northumberland County (trial court) sustaining the preliminary objections of the Borough of Mount Carmel (the Borough) and dismissing Cicchiello s petition for appointment of a board of viewers. This matter concerns property located at 140-42 South Oak Street, Mount Carmel, Pennsylvania (the property). A building on the property included a store front and several apartments. The property was originally owned by Mary Pitingolo, Cicchiello s mother. On September 12, 1985, Pitingolo executed an irrevocable trust agreement, naming Cicchiello as sole trustee, and directing that the property be placed into a trust. Pursuant to the terms of this trust, Pitingolo was entitled to maintain her principal residence at the property during her lifetime, and Cicchiello was entitled to charge Pitingolo the fair market rental for said residency.
The trust directed that all income derived from the property be invested during the term of the trust. Upon Pitingolo s death, Cicchiello was permitted, at her sole discretion, to sell the property, and the proceeds from the sale were to be distributed to Pitingolo s grandchildren. That same day, Pitingolo executed a deed transferring the property to Cicchiello as the trustee under the terms of the trust agreement. (Reproduced Record (R.R.) at 84-88, 138.) On January 6, 2006, a fire occurred at the property which resulted in extensive damage, primarily to the front of the building. Edward Fegley, the Borough s code enforcement officer, inspected the property on January 23, 2006, and advised Cicchiello of the extensive repairs that would be needed to bring the building up to code. 1 Fegley also advised Cicchiello that the second-floor windows were broken in the fire and had to be covered with plywood. A few days later, the Borough s code enforcement office installed padlocks to the unsecured front entrances as a precaution to prevent unauthorized persons from entering the building. On January 28, 2006, Fegley condemned the building, concluding that it was an unsafe structure and unfit for human occupancy. 2 During a meeting on January 29, 2006, Cicchiello informed Fegley that she intended to repair and reoccupy the building and would have the second-floor windows covered right away. (R.R. at 55.) 1 These repairs included the removal and replacement of the entire roof structure and thirdfloor joists, as well as the removal and replacement of the walls, ceilings, and wiring in the store front and apartments in the front of the building. Fegley also noted that he discovered mold in the first-floor apartments that appeared to be caused by a roof leak which had been ongoing for an extended period of time, as well as other areas of partial structural failure, including buckling walls and sagging floors and ceilings, all of which needed repair and/or remediation. (R.R. at 55.) 2 As a result, it was illegal for anyone to enter the building without the consent of the code enforcement office. (R.R. at 55.) 2
However, when Cicchiello failed to cover the second-floor windows or initiate any repairs after a period of approximately 45 days, Fegley sent her a notice dated March 18, 2006. This notice reiterated Fegley s prior discussions with Cicchiello concerning the problems with the building, including the broken secondfloor windows, and provided her with three options. These options included razing and removing the entire structure, making all repairs, or transferring ownership of the property to a third party who was aware of the notice and willing to comply with the same. Fegley imposed a compliance date of June 19, 2006, for the first two options, and cautioned that failure to comply would result in the issuance of citations. However, Cicchiello still did not comply. 3 (R.R. at 55-56.) On June 9, 2008, the rear portion of a neighboring building located at 146 South Oak Street collapsed and the Borough immediately cordoned off both properties in order to protect the safety of the public. The next day, June 10, 2008, the Borough Council held an emergency meeting and voted to demolish both buildings as they posed a threat to the public health, safety, and welfare. Borough Council directed the Borough Manager to solicit emergency bids/quotes for the cost of demolition and to authorize the start of the demolition process as soon as practical. The buildings were demolished soon thereafter. 4 (R.R. at 23-24, 57-58.) 3 Cicchiello subsequently alleged that, over the next two years, she repeatedly requested access to the building to repair the roof but her requests were denied. (R.R. at 32.) 4 Cicchiello initiated legal action against the Borough s Mayor, Borough Council, Fegley, a previous code inspector, and a third-party contractor by filing a complaint, and later an amended complaint, alleging multiple causes of action, including fraud, collusion, bad faith, and abuse of power relating to the laws of eminent domain; improper bidding procedures; and discrimination/malicious prosecution. However, the trial court denied a petition for leave to file a second amended complaint, sustained defendants preliminary objections, and dismissed the amended complaint. (R.R. at 107-58.) The 3
On April 22, 2013, Cicchiello, then represented by counsel, filed a petition for the appointment of a board of viewers alleging that the Borough had failed to comply with the procedural requirements of the Eminent Domain Code 5 and that its demolition effectuated a de facto taking of her property without the provision of just compensation. 6 The Borough filed preliminary objections alleging that Cicchiello s petition was legally insufficient to establish that a de facto taking had occurred and noting that the building was demolished because it presented a danger to public safety. 7 By opinion and order dated December 2, 2013, the trial court sustained the Borough s preliminary objections and dismissed Cicchiello s petition. The trial court explained that it was clear that the Borough demolished the building through the exercise of its police powers, which involves the regulation of property to promote health, safety, and general welfare and requires no compensation to the property owner, and not through its eminent domain power. The trial court found that no repairs were made to the property in the two and a half years between the fire and its demolition. (R.R. at 23-25, 71-82.) Cicchiello filed a notice of appeal, and by order dated January 3, 2014, the trial court directed Cicchiello to file a concise statement of errors complained of 5 26 Pa.C.S. 101-1106. 6 By order dated April 29, 2013, the trial court appointed a board of viewers. 7 Although a demolition brought about by a municipality s exercise of its police powers would not normally impact a landowner s retention of title to real estate, and no such allegation is made in this case, we note that the record is unclear if Cicchiello still retains title at the present time as the trustee in accordance with the terms of the trust agreement. 4
on appeal. 8 24, 2014: Cicchiello, now pro se, filed the following concise statement on January Rule 1312. Content of the Petition for Permission to Appeal. In CV 2010-01154 Plaintiff filed individually as did others who had possessions within the structure. The lower court consolidated the other filings and then deemed that the case was an Eminent Domain Case. Plaintiff then filed the case timely and appropriately the case number was CV 2013-00729. Defendant s preliminary objections were sustained and the petition for Appointment of a Board of Viewers was dismissed. The court order of 4-29-13 was vacated. (R.R. at 28.) In a subsequent opinion in support of its order, the trial court noted that Cicchiello s concise statement merely outlined the procedural history of the case and did not identify any issues that she intended to raise on appeal. Hence, the trial court stated that it would rely on its previous opinion in support of its December 2, 2013 order. (R.R. at 26.) On appeal, 9 Cicchiello argues that the trial court erred in sustaining the Borough s preliminary objections and dismissing her petition for appointment of a board of viewers where the Borough Council met to declare condemnation and eminent domain just before undertaking demolition and... the record concerning the 8 Cicchiello filed her appeal with Superior Court, which transferred the matter to this Court by order dated May 8, 2014. 9 Our scope of review of a trial court s order sustaining preliminary objections and dismissing a complaint is limited to determining whether the trial court abused its discretion or committed an error of law. Podolak v. Tobyhanna Township Board of Supervisors, 37 A.3d 1283 (Pa. Cmwlth. 2012). In reviewing preliminary objections, all well pleaded relevant and material facts are to be considered as true, and preliminary objections shall only be sustained when they are free and clear from doubt. Id. Such review raises a question of law; thus, our standard of review is de novo and our scope of review is plenary. Id. 5
extent of damages remains conflicted. 10 (Cicchiello brief at 6.) The Borough contends that Cicchiello waived any issues on appeal by failing to raise them in her concise statement of errors complained of on appeal. We are constrained to agree with the Borough. Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 1925(b)(1) authorizes a trial court to direct the appellant to file a concise statement. Pa.R.A.P. 1925(b)(4) provides, in relevant part, that: (i) The Statement shall set forth only those rulings or errors that the appellant intends to challenge. (ii) The Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge. The judge shall not require the citation to authorities; however, appellant may choose to include pertinent authorities in the Statement.... (vii) Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived. Pa.R.A.P. 1925(b)(4)(i)-(ii), (vii). As the trial court noted, Cicchiello s concise statement merely outlined the procedural history of the case and did not set forth any rulings or errors that she intended to challenge on appeal. In accordance with Pa.R.A.P. 1925(b)(4)(vii), Cicchiello has waived all issues on appeal and, thus, we must affirm the trial court s 10 Cicchiello also argues that the trial court erred in denying her petition for leave to file a second amended complaint. However, this issue relates to Cicchiello s prior litigation and a previous order of the trial court which is not at issue in this appeal. 6
order sustaining the Borough s preliminary objections and dismissing Cicchiello s petition for appointment of a board of viewers. However, even if Cicchiello had not waived all issues, we note that her argument would fail. Cicchiello appears to confuse condemnation and demolition of a property pursuant to a municipality s police powers on the ground that it poses a danger to the health, safety, and welfare of the public with a municipality s taking of a property through eminent domain/condemnation proceedings. The property at issue in this case was condemned by Fegley, the Borough s code enforcement officer, on January 28, 2006, following his inspection after the fire and based on his conclusion that the property constituted an unsafe structure and was unfit for human occupancy. The Borough never sought to exercise its eminent domain/condemnation powers with respect to this property. Instead, following the collapse of an adjacent building, and given the concern for the public s safety due to the condition of both buildings, including the fact that no repairs had been undertaken at the subject building more than two years after the fire, the Borough convened an emergency meeting of its Council and voted to exercise its police powers and authorize demolition of the buildings. Our Supreme Court explained in Redevelopment Authority of Oil City v. Woodring, 445 A.2d 724, 727 (Pa. 1982), that: Police power involves the regulation of property to promote health, safety and general welfare and its exercise requires no compensation to the property owner, even if there is an actual taking or destruction of property, while eminent domain is the power to take property for public use, and compensation must be given for property taken, injured or destroyed. (Citation omitted). Because the condemnation and demolition of the property was undertaken pursuant to the Borough s police powers, the trial court properly 7
concluded that a petition for appointment of board of viewers was not appropriate in this case. Accordingly, the order of the trial court is affirmed. PATRICIA A. McCULLOUGH, Judge 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joan Cicchiello, : Appellant : : No. 776 C.D. 2014 v. : : Mt. Carmel Borough : ORDER AND NOW, this 23 rd day of March, 2015, the order of the Court of Common Pleas of Northumberland County, dated December 2, 2013, is hereby affirmed. PATRICIA A. McCULLOUGH, Judge