In this case out of Montour County the Commonwealth Court held that the trial court could not hold a de novo hearing where the appellant refused to present testimony or evidence to the local hearing board. It also found that the repeal and replacement of an ordinance did not make the prior collection of fees under the repealed ordinance retroactive and void ab initio.
The Borough of Danville enacted a Rental Registration Ordinance by which all owners of rental units had to obtain a rental occupancy license for each unit and pay an annual license fee. A late fee was authorized for payments made after March 31st. Kuziak owned 39 rental units in the Borough. He paid $1,950 to the Borough ($50 for 39 rental units) in December 2012. In July 2013 the Borough repealed the original ordinance and replaced it with a new ordinance that imposed identical fees. In August 2013 Kuziak paid $975 to the borough ($25 for 39 units) and included a letter asserting that by repealing the earlier ordinance the Borough was required to credit rental owners for payments made under the old ordinance. The Borough responded by acknowledging Kuziak’s payment and the repeal of the earlier ordinance but reminded him that the new ordinance imposed identical fees. After Kuziak did not respond the Borough issued a formal notice of violation and requested he pay the balance due plus late fees.
Kuziak appealed the notice of violation to the Rental Registration and Property Maintenance Hearing Board. He asserted the prior ordinance had been repealed for improper publication under the Sunshine Act and that requiring registration for 2012 was retroactive and constituted an ex post facto law. He refused to present any further testimony or evidence before the Board. The Board denied Kuziak’s appeal, concluding the repeal and replacement of the ordinance did not affect anything done under the prior ordinance. Under either ordinance, it reasoned, Kuziak owed the same amount of money.
The Court of Common Pleas of Montour County denied Kuziak’s appeal without conducting a de novo hearing and the matter came before the Commonwealth Court. The Commonwealth Court concluded the trial court had not abused its discretion by not holding a de novo hearing. It reasoned that Kuziak’s failure to present evidence at the hearing was not a bases for which the trial court could hear the appeal de novo or remand to the local agency. As to Kuziak’s claim that the ordinance was not properly advertised under the Sunshine Act and was void ab initio, the court found Kuziak had the burden of proof and failed to meet it when he presented no evidence on the issue. Finally, the court concluded that requiring payment under the old ordinance was not retroactive, as the old ordinance was in effect up until the enactment of the new ordinance and that sums could still be collected under the old ordinance for the time period it was in effect.
Click here to read: Kuziak v. Borough of Danville, 2309 C.D. 2014 (Pa. Cmmw. Ct. Sep. 29, 2015).