                IN THE COMMONWEALTH COURT OF PENNSYLVANIA


JPR Holdings, LLC,                              :
                              Appellant         :
                                                :
           v.                                   :   No. 820 C.D. 2019
                                                :   Argued: November 12, 2020
City of Philadelphia                            :


BEFORE:          HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                   FILED: January 8, 2021

                 Before this Court is the appeal of JPR Holdings, LLC (JPR) from a
February 26, 2019 order (Order) of the Court of Common Pleas of Philadelphia
County (trial court), assessing a total of $52,000 in fines against JPR for violations
of The Philadelphia Code (Code)1 relative to making renovations without valid
permits at 2113 East Cambria Street, Philadelphia, Pennsylvania (Property).

                        I.     Background and Procedural History
                 The City of Philadelphia (City) filed an action against JPR in August
2017, as a result of a February 2017 inspection by the Philadelphia Department of
Licenses and Inspections (L&I), which revealed building code violations relative to


       1
         Phila., Pa., The Philadelphia Code tit. 4 (The Phila. Building Constr. & Occupancy Code),
ch. 4-200.0, subcode “A” (The Phila. Admin. Code), chs. 3, 5, 9, §§A-301.1.1(3), A-301.1.3, A-
304.1.4, A-504.1, A-901.13 (2020).
renovations being conducted on the Property without required permits. On February
8, 2017, L&I issued a Stop Work Order and Initial Notice of Violation and Order
(Notice) for five violations, which included “a complete gut renovation and
unpermitted electrical and plumbing work.”2 City’s Br. at 5 (citing R.R. at 14-16).3
Said Notice stated that fines of $150 to $2,000, per day, could be imposed while the
violations remain uncorrected and noted that JPR had 30 days to file an
administrative appeal. In addition, L&I posted a Stop Work Order on the Property.
City’s Br. at 5-6.
                 One month later, L&I conducted another inspection and found that the
violations continued. R.R. at 18-19. The City filed an enforcement action on August
31, 2017, but the matter was continued several times while the City attempted to
effectuate service on JPR. City’s Br. at 6. After a hearing in June 2018, the trial
court ordered JPR to obtain all the required permits and issued a $7,000 conditional

       2
          In its Notice, the City cited Sections A-301.1.1(3), A-301.1.3, A-301.1.4, A-504.1, and
A-901.13 of the Code, noting that JPR needed a building permit (1) to install floor trusses, (2) to
alter, modify, repair or improve the interior portion of the Property, (3) to install, alter, replace or
repair electrical and communication wiring within or on any structure or premises, (4) to alter,
repair or replace plumbing in a structure, and (5) to install or replace a stairway. The City stated
that it was issuing a Stop Work Order because the Property was found to be “in a dangerous or
unsafe condition . . . likely to cause imminent injury to persons or property” and noting that permit
and inspection fees would be imposed. Reproduced Record (R.R.) at 14-15.

       3
           Pa.R.A.P. 2173 states, in pertinent part, as follows:

                [e]xcept as provided in Rule 2174 (tables of contents and citations), the
       pages of briefs, the reproduced record and any supplemental reproduced record
       shall be numbered separately in Arabic figures and not in Roman numerals: thus 1,
       2, 3, etc., followed in the reproduced record by a small a, thus 1a, 2a, 3a, etc., and
       followed in any supplemental reproduced record by a small b, thus 1b, 2b, 3b, etc.

       We note that the reproduced record, herein, does not follow the above rule.




                                                   2
fine, which was to be made final if JPR did not comply by August 13, 2018. R.R. at
25-26. The trial court also noted that the violations at the Property were subject to
a daily fine of $3,500, i.e., $300 per each of five violations, and $2,000 for violation
of PM-110.1.4
              At a second hearing on August 14, 2018, the trial court determined that
JPR had not remedied the Code violations. However, JPR was given another 45
days to comply before the conditional fine would become final. R.R. at 28-31.
              At a third hearing in October 2018, the trial court determined that JPR
had not made any substantive progress in remedying the violations but declined to
impose any absolute fines, imposing a conditional fine of $15,000 instead and
warning that it would make the fine absolute if JPR did not remedy the violations by
the date of the next hearing. R.R. at 46-48.
              At a hearing on December 18, 2018, the trial court (1) found JPR had
not remediated the Code violations, (2) noted the violations at the Property were
subject to a daily fine of $1,500, (3) converted, from conditional to absolute, $10,000
of the $15,000 in fines, (4) ordered JPR to remedy the violations in 30 days from the
date of the order, and (5) allowed the City to ask for additional fines at any future
hearings. R.R. at 49-51.
              On February 26, 2019, the trial court determined that JPR had come
into compliance and then addressed the previous conditional fines and the final
penalties to be assessed in the matter. The trial court converted the June 19, 2018,
$7,000 conditional fine into an absolute fine and noted that JPR had still not paid the


       4
        Phila., Pa., The Phila. Code tit. 4, Ch. 4-200.0, Subcode “PM” (The Phila. Prop. Maint.
Code) §110.1 (2020).




                                              3
$10,000 fine, which had been made absolute on December 18, 2018. In addition,
the trial court calculated that JPR violated the Code for 612 days from the date of
the initial Notice and thus, the City was entitled to nearly $800,000.5 However,
instead of granting the City the full amount, the trial court ordered a statutory fine in
the amount of $35,000, in addition to the $17,000 it had already ordered, for a total
of $52,000. R.R. at 61-63.
               JPR now appeals to this Court.6


                                        II.     Arguments
                                     A. JPR’s Arguments
               JPR acknowledges that it took over 600 days to bring the Property into
Code compliance after the first violations were issued by the City. However, JPR
asserts that it attempted to comply, and “at certain points . . . was under the
impression that the permits that it pulled for said compliance were correct [but]
learned otherwise during the hearing . . . held on December 18, 2018.” JPR’s Second
Amended Br. at 8. JPR asserts that, once it understood the requirements for
compliance, it complied in a timely fashion and, thus, the “severity of the offense is
greatly mitigated.” Id. JPR does not deny it was aware of the original Notice of

       5
        The trial court calculated the total as follows: “9 violations x 584 days x $150.00 [=]
$788,400.” R.R. at 62-63.

       6
           Generally, this Court reviews a trial court’s assessment of a civil penalty for abuse of
discretion. Borough of Kennett Square v. Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth. 1994). The high
standard of showing a reversible abuse of discretion is met only where “the law is overridden or
misapplied or judgment exercised is manifestly unreasonable or is the result of partiality, prejudice,
bias, or ill will.” City of Philadelphia v. DY Props., LLC, 223 A.3d 717, 724 (Pa. Cmwlth. 2019).
“An abuse of discretion is not merely an error of judgment.” Id. To the extent JPR raises the issue
of the constitutionality of the fines assessed in the present matter, our standard of review is de novo
and our scope of review is plenary. Com. v. Eisenberg, 98 A.3d 1268 (Pa. 2014).



                                                  4
Violation which was sent to the Property in February 2017. However, JPR contends
it was not served with notice of the trial court matter until April 2018, and thus, it
did not “ignore” the Notice and that this, in turn, should be considered a mitigating
factor and reduce its delay in reaching compliance from 600 days to 426 days. JPR’s
Reply Br. at 4.
               Further, JPR argues that the Property was assessed at a value of
$24,000, and that fines of $52,000 are in gross disproportion to the gravity of the
offense, and thus, are “barred by the Excessive Fines Clause of the Pennsylvania
Constitution[7] as defined in [Hiko Energy, LLC v. Pennsylvania Public Utility
Commission, 163 A.3d 1079 (Pa. Cmwlth. 2017)].” JPR’s Second Amended Br. at
8-9.


                                 B. The City’s Arguments
               The City argues that JPR waived its excessive fines argument because
it did not raise it before the trial court. Although the City acknowledges that JPR
raised the issue in its Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of
on Appeal, the City contends that this was far too late in the process and, thus, the
issue was waived. City’s Br. at 10-12. In addition, the City argues that JPR “had
multiple opportunities to object to the amount of these fines starting in October 2018,
when the [trial] court imposed the first conditional fine, all the way through to the
final hearing in February 2019.” City’s Br. at 12. The City notes that, while JPR
argues it did not receive notice of the final hearing, “it does not deny that the notice


       7
         Pa. Const. art. I, §13 states: “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel punishments inflicted.” The Excessive Fines Clause in the Pennsylvania
Constitution is coextensive with the Eighth Amendment to the United States Constitution. U.S.
CONST. amend. VIII; See also Eisenberg, 98 A.3d 1268.


                                                 5
went to its address of record . . . [or] having received the Order imposing the final
set of fines.” Id.
               Further, the City asserts that, even if this Court decides to address JPR’s
argument that the fines were excessive, the fines “[stand] on legal footing.” Id. In
this regard, the City contends the $52,000 fine is not grossly disproportional to the
600 days of violations and “is well under the [nearly $800,000] directed by [T]he
Philadelphia Code.” City’s Br. at 12-13. The City further argues that this Court, in
DY Properties, 223 A.3d 717,8 held that “property value is irrelevant to calculating
fines.” City’s Br. at 13.
               The City acknowledges that “[c]ourts will uphold [a] fine unless it is
‘grossly disproportional’ to the offense.” City’s Br. at 13 (citing, and quoting in
part, Eisenberg, 98 A.3d at 1281). However, the City argues that the fines imposed
in this case had “built-in proportionality” as the fine accumulated on a daily basis9
and that “[t]he proportionality standard requires comparing the amount of the fine to
the gravity of the offense.” City’s Br. at 13. Citing Lal, 643 A.2d 1172, the City
also acknowledges that “[a] trial court should weigh mitigating and aggravating
factors that include: the history and character of the defendant; the nature and
circumstances of the offense; and the defendant’s attitude.” City’s Br. at 13. In this
regard, the City argues that the trial court weighed mitigating and aggravating factors
and that the aggravating factors were that JPR conducted an entire gut renovation of
the Property, including plumbing and electrical work, replacing a stairway, and


       8
         The City argues that this case “is directly on point and should control the outcome here.”
City’s Br. at 17.

       9
          Relying on Commonwealth v. Church, 522 A.2d 30 (Pa. 1987), the City notes that “[f]ines
that are assessed on a per-day or per-injury basis, like the statutory fines in this case, have built-in
proportionality to the offense.” City’s Br. at 15.


                                                   6
installing floor trusses without a permit, leading to a change in the footprint of the
Property and a violation of the City’s Zoning Code. City’s Br. at 14. The City
further argues that there were no mitigating factors and that the trial court did not
accept JPR’s argument it had acted in good faith, finding that JPR had notice and
did not offer a good excuse for failing to remedy the violations in a timely fashion.
City’s Br. at 15.
               In support of its argument that the amount of the fines, here, were
reasonable, the City notes that JPR’s five violations, at a rate of $150-$300 per day,
per violation, resulted in nearly $800,000 in accrued fines for the 612 days during
which JPR was not in compliance, but that the City pursued, and the trial court
awarded, the minimum fine for fewer than 50 days of violations at the minimum rate
of $150 per day. City’s Br. at 14.
               Finally, the City asserts that JPR’s argument comparing the fines to the
value of the Property is irrelevant as “this Court has held that property value is not
relevant to permit and construction-related fines.”10 City’s Br. at 18. Further, the
City argues that JPR’s argument about the size of the fines matters little, or not at
all, because JPR had multiple opportunities, over 20 months, to remedy the
violations. Id. The City notes that “JPR’s counsel admitted his client ‘dropped the
ball’ on obtaining a zoning variance and could not obtain building permits without
either demolishing the unpermitted addition or securing the variance” and “only
have themselves [sic] to blame,” if the fines make the Property “unprofitable.”
City’s Br. at 18-19.



       10
          The City also notes that the record contains no evidence of the Property’s value and that
this Court is prohibited from considering facts which are not of record. City’s Br. at 17 n.3.



                                                7
                                      III.    Discussion
              Upon review of the facts and arguments raised by the parties herein, we
affirm. Similar to the property owner in DY Properties, JPR, here, admitted to Code
violations by not appealing the Notice from the City and subsequently failing to
correct its Code violations, in this case for approximately two years. Like the trial
court here, the trial court in DY Properties ordered a fine that was below the
allowable maximum. In DY Properties, we affirmed the trial court because the
owner admitted the violations, and the fines were authorized by the Code. Thus, we
determined that the fines were within the trial court’s discretion. DY Properties, 223
A.3d 717. We see no reason we would opine otherwise in the matter sub judice.
              Imposing daily fines is supported by considerable precedent. In fact,
this Court has upheld similar and larger fines in code enforcement or zoning cases
that, unlike this one, did not involve an imminent safety hazard. See, e.g., E. Penn
Twp. v. Troxell (Pa. Cmwlth., No. 875 C.D. 2011, filed Apr. 5, 2012), 2012 WL
8681524 (unreported)11 (upholding $500 per day, per violation fine, totaling
$624,500, for parking commercial vehicles, raising pigs, storing junk, and
impermissibly operating a trucking terminal); Woodruff v. Lower Southampton
Twp., 516 A.2d 834 (Pa. Cmwlth. 1986) (upholding $100 per day fine, totaling
$157,600, for operating junkyard in violation of zoning ordinance). In the present
matter, the trial court did not abuse its discretion in assessing fines for JPR’s
violations of the Code and for its subsequent failure to correct the violations in a
timely manner. However, our analysis does not end here, as JPR asserts that the
assessed fines were excessive, and in violation of the Pennsylvania Constitution.



       11
          We cite this case for its persuasive value in accordance with Section 414(a) of this
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).

                                              8
                At the outset, we address the City’s argument that JPR did not raise a
timely constitutional challenge and, thus, this Court cannot consider JPR’s claims of
constitutional infirmity. Although the trial court’s Order does not address the issue
of the constitutionality of the assessed fines, JPR’s Answer to Complaint in Equity
did, in fact, raise the issue of the excessive nature of the fines at the trial court level.
Specifically, paragraph 16 of said document states: “[JPR] avers that fines in the
amounts suggested by [the City] are excessive and overly burdensome, in that they
far exceed the value of the [P]roperty or the potential danger under the
circumstances.” R.R. at 33-34. Although JPR does not cite a particular article of
the Pennsylvania Constitution in this paragraph, it specifically raises the issue
contemplated by the excessive fines clause of both the Pennsylvania and United
States Constitutions, much in the same way that using the term “unreasonable search
and seizure” would implicate Fourth Amendment concerns, even without explicitly
identifying the Fourth Amendment to the United States Constitution.12 Given that
JPR raised the issue of the excessive nature of the fines in its Answer, it raised the
matter at the very inception of litigation and cannot now be denied its opportunity to
advance this argument on the basis it was waived.
                Having determined that JPR sufficiently and timely raised the issue of
constitutionality, we address whether it demonstrated the assessed fines were
unconstitutionally excessive. We acknowledge and accept the City’s position that
“property value is irrelevant to calculating fines.” City’s Br. at 13 (citing DY Props.,
223 A.3d 717). We also acknowledge and accept the City’s position that “[f]ines
that are assessed on a per-day or per-injury basis . . . have built-in proportionality to
the offense.” City’s Br. at 15 (citing Church, 522 A.2d 30).


       12
            U.S. CONST. amend IV.


                                             9
             There is no question that JPR was in violation of the Code and that it
did not come into compliance with it for approximately two years. There were
multiple trial court hearings throughout that time, and at each one, the trial court
gave JPR an opportunity to bring itself into compliance before the next hearing date.
JPR contends that its principal was confused and that there were mitigating factors
that this Court should consider. However, the record, including the trial court’s
relative leniency in imposing the City’s fines, suggests otherwise. In addition, the
trial court was authorized to fine JPR nearly $800,000 for the total number of daily
violations it incurred. However, the trial court imposed fines that were, in total,
6.5% of that amount.
             JPR asserts that the $52,000 in total fines imposed by the trial court was
more than twice the value of the Property. However, it appears that the only
information about the Property’s value was provided by JPR as part of its brief on
appeal to this Court and as part of its reply brief, which included an image from the
City of Philadelphia’s website, indicating the 2020 market value of the Property to
be $24,000. JPR’s Second Amended Br. at 8 and JPR’s Reply Br. at 9. Further,
given this Court’s holdings in multiple similar cases, the value of the Property is
irrelevant in these matters. The goal behind the Property Maintenance Code’s daily
accruing fines is to motivate property owners to work diligently to remedy ongoing
violations as quickly as possible. Church, 522 A.2d at 34 (purpose of a fine is “to
punish violators and to deter future or continued violations”) (citation omitted). In
light of the serious safety risks posed by JPR’s complete gut renovation efforts on
the Property, the significantly larger fine that was authorized by the Code, and JPR’s
delay in addressing the violations, we discern no abuse of discretion by the trial court
in imposing $52,000 in total fines. Thus, we do not dispute the trial court’s



                                          10
determination that the assessed fines were justified here, especially where the trial
court exercised leniency by providing JPR with numerous opportunities to correct
its Code violations. Accordingly, we affirm the Order of the trial court.


                                  IV.    Conclusion
             Based on the foregoing analysis, we affirm the trial court’s February
26, 2019 Order.




                                              ______________________________
                                              J. ANDREW CROMPTON, Judge




                                         11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA



JPR Holdings, LLC,                    :
                        Appellant     :
                                      :
       v.                             :   No. 820 C.D. 2019
                                      :
City of Philadelphia                  :



                                    ORDER

             AND NOW, this 8th day of January 2021, the Order of the Court of
Common Pleas of Philadelphia County is AFFIRMED.




                                          ______________________________
                                          J. ANDREW CROMPTON, Judge
