City of Phila. v. A Kensington Joint, LLC

301 A.3d 988

CITY OF PHILADELPHIA v. A KENSINGTON JOINT, LLC and Adam Ehrlich, Appellants

No. 823 C.D. 2023

Commonwealth Court of Pennsylvania.

Submitted on Briefs August 7, 2023

Decided August 9, 2023

Laurence A. Mester, Philadelphia, for Appellant A Kensington Joint, LLC.

Jennifer MacNaughton, Philadelphia, for Appellee City of Philadelphia.

BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE FIZZANO CANNON

A Kensington Joint, LLC (the LLC) and Adam Ehrlich (collectively, Appellants ¹ ) appeal from the July 26, 2023 Order of the Court of Common Pleas of Philadelphia County (Trial Court), which order granted a preliminary injunction against Appellants and in favor of the City of Philadelphia (City), authorizing the City to enter, inspect, empty, and/or demolish a structure on Appellants’ property (Trial Court Order). The Trial Court Order arose from a complaint filed against Appellants (Complaint) by the City alleging violations of The Philadelphia Code of General Ordinances (Code) ² on the property located at 2837 Kensington Avenue in the City of Philadelphia (Property), which includes a three-story mixed-used brick structure (Building). Upon review, we affirm in part and vacate in part the Trial Court Order, and remand for further proceedings on an expedited basis.

I. Background

The LLC owns the Property, and Mr. Ehrlich is the sole person in control of the LLC. ³ See Original Record (O.R.), Item No. 1 (Complaint) ¶¶ 2, 10; Notes of Testimony, 7/26/23 (N.T.) at 62. On July 24, 2023, the City filed the Complaint, together with an Emergency Petition for Order to Vacate and Demolish (Trial Court Petition), in the Trial Court. The Complaint alleges uncured, unappealed violations of the Code pertaining to the Property and sought demolition of the Building as a remedy therefor. See Complaint ¶¶ 29-53 & Wherefore Clause.

The Trial Court conducted a hearing on the Trial Court Petition on July 26, 2023. At the hearing, the City presented copies of four notices of violation (Notices of Violation) ⁴ regarding the Property issued by the City's Department of Licenses and Inspections (Department), as well as photographs ⁵ of the Property and its surroundings taken on July 25, 2023, all of which were admitted into evidence. See N.T. at 54-55. The City also presented the testimony of two Department officials about the current condition of the Property. Thomas Rybakowski, a construction compliance supervisor for the Department, in its Contractual Services Unit, testified that on July 25, 2023, he inspected the Property and Building. See N.T. at 16. He stated:

The [P]roperty is unsafe. It was declared unsafe by my unit. It has a vertical fracture along the side wall on the right-hand side. It also, the front wall at the corner is bulged out towards the walkway. There is some fire damage to the interior joists at the tunnel alley area of the [B]uilding. I do not know how far this fire damage has penetrated into the [P]roperty, you can see that there is alligatoring which is basically charring on those structural members, that is one of the structural load points for the [P]roperty. So our fear is that this could be subject to a collapse of the [P]roperty.

Id . Mr. Rybakowski also described bulging and deterioration of exterior walls and foundational elements. See id. at 19-21. On direct examination, he admitted that the fire damage "indicates significant structural damage which would need a structural analysis to see if the building was able to stand." Id . at 21 (emphasis added). Similarly, when asked on cross-examination whether a more robust inspection was needed to make a determination as to the stability of the structure, Mr. Rybakowski admitted that he "would ask for a structural engineer to assess the [P]roperty, but from our assessment there are conditions that would lead to a structural failure." Id . at 32. Mr. Rybakowski also agreed that "a structural engineer or some other type of professional [would be needed] to affirmatively state that ... these defects could lead to an imminent collapse, and ... whether or not they effected [sic] the structural stability of the building." Id . at 36. Mr. Rybakowski admitted there had been no interior inspection of the Building as of the hearing, and that the inspection he conducted on July 25 was a visual inspection from outside the fence surrounding the Property; he did not ask Appellants’ permission to enter the Property to conduct a closer inspection. See id. at 29-31.

The City also presented the testimony of Tameka Blair, a code enforcement inspector with the Department, who was present at the July 25, 2023 inspection. Ms. Blair also confirmed that there was no interior inspection before the hearing. See N.T. at 55. She directly admitted that she was not testifying regarding the Building's structural integrity. See id . When asked about structural stability, Ms. Blair declined to offer testimony, explaining: "I stand with my contractual service inspector [(i.e., Mr. Rybakowski)] because he's an expert on that, so whatever he says I go by what he says." Id . at 58. Ms. Blair also testified about the reason Department personnel did not enter the Property. Ms. Blair explained that during the March 2023 inspection, personnel were not "able to get inside the [P]roperty due to the activities on the outside, and inside, it was not safe." Id . at 41. She observed people on and around the Property using and visibly under the influence of drugs, and believed people in the Building were selling drugs. See id . Occupants had posted a notice on the door of the Building prohibiting entry without permission and a person stood at the door allowing people inside. See id . at 41-42. Persons allowed entry were later observed leaving with visible drug paraphernalia. See id . Tents are set up in the rear yard of the Property. See id. at 52. Further, Ms. Blair explained that the Building has numerous illegal connections to electrical lines, but has no legitimate water or electric service. See id . at 43, 46-47, 51.

Mr. Ehrlich testified at the hearing on behalf of Appellants. Mr. Ehrlich explained that one of his other business entities purchased the Property for $70,100 in 2020, and transferred the Property to the LLC in December 2022. See N.T. at 64-68. Mr. Ehrlich stated that he has permitted certain people to live in the Building, but some persons living in the Building and all those who occupy the adjoining vacant lots or the tent at the rear of the Property are there without his permission. See id. at 69-73, 86-87, 127-30. Before any of the Notices of Violation were issued, Mr. Ehrlich initially asked the Philadelphia Police Department (PPD) to remove persons who were living on, and selling and using drugs on, his vacant lots, and he installed a gate to attempt to restrict access. See id . at 88-93. Mr. Ehrlich stated that it is difficult to find a contractor willing to work in Kensington.

See id . at 79, 95. Mr. Ehrlich explained that, in March or April of 2023, he hired a structural engineer to assess the Building violations, paid a deposit of $300 for the work, and was present while the engineer inspected the Building, but that the engineer later refused contact and never delivered the promised report. See id . at 95-98.

Mr. Ehrlich also produced evidence of his communications with police and CLIP ⁶ personnel in attempts to clean up the Property and exclude unauthorized occupants. See N.T. at 104-05; 7/26/23 Hearing Exs. D-2 & D-3 (admitted, N.T. at 132). He testified that contractors have performed work including changing the door locks on the Building several times and installing a steel security gate to restrict access to the Property. See id . at 106-08. Finally, Mr. Ehrlich stated that he is willing to hire, and able to pay for, a structural engineer to secure a make-safe permit and abate the violations. See id . at 118.

The Trial Court found the testimony of the City's two witnesses credible, Trial Court Order ¶ 6, and found the following facts regarding the Property:

7. The [Property] has structural deterioration that has rendered it unsafe; the side wall of the [Building] has loose and missing bricks, the front side wall has a vertical fracture, and the north side wall has missing bricks and fire damaged joists at the tunnel alley.

8. The [Property] has no current approved use but is occupied by unknown transient persons without water and legal electrical and other utility hookup.

9. There are wooden boards on some windows and unknown persons who appear to be monitoring access to the backdoor but otherwise the [B]uilding and curtilage is open to trespass.

10. In inspecting the [Property], Department personnel have observed drug activity and been subject to intimidating behavior by unknown persons loitering in and around the [Property].

11. The lack of utilities and unapproved use of the [Property] has rendered it unfit for human occupation and a danger to Department personnel as well as transient persons attempting to occupy the subject premises.

....

13. The contiguous parcels are occupied by unknown transient persons who are to different degrees encamped there upon.

14. Both the [Property] and the contiguous properties have debris associated with drug activity including discarded syringes and caps.

15. The Department has been unable to do a resinspection [sic] to determine the current state of the interior of the [Building] and determine the degree to which the joists have been degraded, the level of hazmat conditions, and whether other conditions of the [Property] exist stemming from the known unit [sic] and unsafe conditions due to the danger posed to Department personnel by the unknown persons in and around the [Property].

16. The [Property] is in violation of [T]he Philadelphia [Property Maintenance] Code §§ PM-108.1 ^[7] and PM[ ]-109.1 ^[8] and is

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