Opinion
J-A10032-16 No. 846 WDA 2015
11-04-2016
5100 FIFTH AVENUE CONDOMINIUM ASSOCIATION v. ESTATE OF ESTHER F. ASCHEIM, BARBARA EFFRON, IN HER CAPACITY AS ADMINISTRATOR OF THE ESTATE APPEAL OF: BARBARA EFFRON, IN HER CAPACITY AS ADMINISTRATOR OF THE ESTATE OF ESTHER F. ASCHEIM
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered April 29, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 12-002331 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Barbara Effron, in her capacity as administrator of the Estate of Esther F. Ascheim, appeals from the judgment entered in the Allegheny County Court of Common Pleas, in favor of Appellee, 5100 Fifth Avenue Condominium Association, in the amount of $55,461.31 for unpaid condominium fees and $12,473.50 for attorney's fees and costs, in this breach of contract action. We affirm.
The relevant facts and procedural history of this case are as follows. Esther F. Ascheim ("Decedent") and her husband purchased a condominium governed by Appellee in 1973. Pursuant to the condominium agreement signed at the time of purchase, Decedent and her husband were responsible for monthly condominium and maintenance fees. After the death of Decedent's husband, Decedent resided in the condominium with her son, Cappy Ascheim. Starting in January 2006, neither Decedent nor Cappy Ascheim made the required monthly payments for condominium and maintenance fees. Decedent died on January 18, 2007, and the court appointed Appellant as administratrix of Decedent's estate on September 11, 2009. Meanwhile, Cappy Ascheim continued to reside in the condominium without paying any condominium or maintenance fees. On July 6, 2011, Appellant had Cappy Ascheim forcibly evicted from the condominium. Appellant subsequently placed the condominium on the market for sale.
On February 2, 2012, Appellee filed a complaint against Appellant for the unpaid condominium, maintenance, and late fees plus attorney's fees and costs. On February 21, 2012, Appellant filed preliminary objections, which the court overruled on March 21, 2012. On May 14, 2012, Appellant filed an answer and new matter, which claimed, inter alia, the doctrine of laches barred Appellee's claims and the court lacked subject matter jurisdiction. The parties proceeded to a jury trial, and the jury returned a verdict in favor of Appellee on March 18, 2013. Specifically, the jury found Appellant owed Appellee $55,461.31 in unpaid condominium, maintenance, and late fees.
On March 21, 2013, Appellee filed a post-trial motion, which asked the court to mold the verdict to include attorney's fees and costs, pursuant to Section 3315 of the Uniform Condominium Act. Appellant filed a post-trial motion on March 26, 2013, which asked the court to grant judgment notwithstanding the verdict ("JNOV") in favor of Appellant or order a new trial on the issue of damages. On September 9, 2013, Appellant filed a response to Appellee's post-trial motion to mold the verdict, which alleged for the first time that Appellee's delay in filing suit resulted in the extinguishment of any lien Appellee possessed on the condominium. On April 29, 2015, the court granted Appellee's post-trial motion to mold the verdict to include $12,473.50 for attorney's fees and costs and denied Appellant's post-trial motion. The court order recognized the $67,934.81 judgment as a lien on the proceeds from the sale of the condominium. On May 4, 2015, Appellee filed a praecipe for writ of execution. Appellant timely filed a notice of appeal on May 27, 2015. On May 29, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on June 17, 2015.
Appellant raises the following issues for our review:
DID THE CIVIL TRIAL COURT ERR...BY DECLARING IN 2015 THAT A VERDICT AWARDED ON 3/18/2013 THAT ACCUMULATED MAINTENANCE OR CONDOMINIUM FEES INCURRED DURING 1) PRE-DEATH, WHEN CAPPY WAS ACTING AS P.O.A., (JANUARY 2006 UNTIL JANUARY 2007)[;] 2) POST DEATH, DURING CAPPY'S CONTINUED OCCUPANCY OF THE UNIT FROM (JANUARY 2007 UNTIL SEPTEMBER 11, 2009)[;] AND 3) POST-EVICTION-JULY 2011 THRU DATE OF VERDICT MARCH 18, 2013, WHEN ADMINISTRATOR WAS ABLE TO COMMENCE ACTUAL
ESTATE ADMINISTRATION AND PREPARE THE CONDO FOR SALE, INTO ONE CONTINUOUS LIEN WHEN TITLE 68 PA.C.S.A. SEC. 3315(D) DICTATES THAT A LIEN EXTINGUISHES WHEN A CONDO ASSOCIATION FAILS TO [INSTITUTE] SUIT TO ENFORCE A LIEN WITHIN THREE YEARS AFTER THE FEES ARE PAYABLE AND BECOME DELINQUENT?
DID THE CIVIL TRIAL COURT ERR BY NOT RECOGNIZING THAT THE SUIT FILED ON FEBRUARY 2, 2012 FOR BREACH OF CONTRACT WAS NOT THE EQUIVALENT [OF A] SUIT TO ENFORCE A LIEN?
DID THE CIVIL TRIAL COURT ERR BY NOT GRANTING THE MOTION IN LIMINE WHICH WOULD HAVE PRECLUDED THE INTRODUCTION OF CONDOMINIUM CHARGES ALLEGEDLY INCURRED FROM JANUARY 200[6] UNTIL EJECTION OF CAPPY ASCHEIM FROM UNIT IN JULY OF 2011 INTO EVIDENCE SINCE [APPELLEE] FAILED TO PROPERLY AND TIMELY BRING CLAIMS TO ORPHANS['] COURT AND DEMAND APPROPRIATE RELIEF?
DID THE CIVIL TRIAL COURT ERR BY FAILING TO RECOGNIZE THE APRIL 17TH, 2000 ORDER OF COURT OF JUDGE WETTICK WHICH STATED THAT "IT IS RECOGNIZED THAT [DECEDENT] IS AN INCAPACITATED PERSON" AND PERMIT THAT RULING TO LIMIT [APPELLANT'S] LIABILITY IN A CONTRACT ACTION REQUESTING CONDO FEES IN PART INCURRED DURING [DECEDENT'S] LIFE SINCE [APPELLEE] FAILED TO PROPERLY AND TIMELY BRING CLAIMS TO ORPHANS['] COURT AND DEMAND APPROPRIATE RELIEF?
DID THE CIVIL TRIAL COURT ERR BY EXERCISING JURISDICTION THAT IS EXCLUSIVE TO THE ORPHANS['] COURT DIVISION WHEN IT A) MADE ITS PRE-TRIAL RULINGS AND/OR B) ENTERTAINED [APPELLEE'S] POST-TRIAL MOTION TO MOLD THE VERDICT TO INCLUDE ATTORNEY'S FEES WHEN ATTORNEY'S FEES ARE ONLY AVAILABLE IF [APPELLEE] INSTITUTES AN ACTION TO ENFORCE A LIEN AND SUCH AN ACTION WOULD BE WITHIN THE EXCLUSIVE JURISDICTION OF THE ORPHANS['] COURT?
DID THE TRIAL COURT ERR BY NOT USING THE VERDICT SLIP PROPOSED BY [APPELLANT] WHICH WOULD HAVE DESIGNATED THE VARIOUS TIME PERIODS WHEN FEES [WERE] ACCUMULATED AND ALSO ADDRESSED [APPELLEE'S] FAILURE TO PURSUE ITS CLAIMS IN A TIMELY FASHION?
DID THE TRIAL COURT ERR IN ARGUING THAT THE LIEN-EXTINGUISHMENT ISSUE MIGHT BE WAIVED WHEN THE TOPIC OF A LIEN GENERALLY WAS ONLY RAISED AS A CONSEQUENCE OF [APPELLEE'S] POST-TRIAL MOTION TO MOLD THE VERDICT CITING THE UNIFORM CONDOMINIUM ACT AS ITS AUTHORITY?
DID THE TRIAL COURT ERR IN ITS APPLICATION OF THE DOCTRINE OF LACHES GIVEN THAT 1) [APPELLEE] DID DELAY FOR 7 YEARS TO BRING A BREACH OF CONTRACT ACTION[;] 2) [APPELLEE] NEVER BROUGHT AN ACTION TO ENFORCE A LIEN[;] 3) [APPELLEE] WAS ABLE TO FULLY PROSECUTE ITS ORIGINAL CLAIM UNDER THE BREACH OF CONTRACT THEORY[;] 4) THE JURY AWARDED IT THE FULL AMOUNT OF THE DEBT IT ALLEGED WAS DUE[;] AND 5) THE CIVIL TRIAL COURT'S ACTION OF "DECLARING" A LIEN IN THE AMOUNT OF THE VERDICT HAD THE CONSEQUENCE OF REVIVING AN EXTINGUISHED LIEN ON AN ACTION THAT WAS NEVER PURSUED BY [APPELLEE] AND THE CIVIL TRIAL COURT DOES NOT SEE THAT AS BEING AN INEQUITABLE RESULT?
DID THE CIVIL TRIAL COURT COMMIT FUNDAMENTAL ERROR AND APPLY INCORRECT [PRINCIPLES] OF LAW?
DID THE COURT COMMIT FUNDAMENTAL ERROR WHEN IT CHOSE NOT TO HOLD ANY EVIDENTIARY HEARINGS ON EITHER THE EXTINGUISHMENT OF THE LIEN OR THE ATTORNEY'S FEES ALLEGEDLY INCURRED BY...APPELLEE AND OBJECTED TO BY...APPELLANT?
SHOULD THE COURT'S INTERPRETATION OF...68 PA.C.S.A. [§] 3315 BE REJECTED BECAUSE IT CONTRADICTS ESTABLISHED CANONS OF STATUTORY CONSTRUCTION UNDER PENNSYLVANIA LAW BY RENDERING SECTION 3315(D) INEFFECTIVE, AS APPLIED, AND BY PRODUCING AN ABSURD AND UNREASONABLE RESULT?
WHETHER THE CIVIL COURT ERRED BY TRANSFORMING A VERDICT SPECIFICALLY FOR CONDOMINIUM FEES INTO A LIEN WHEN THE ONLY ISSUE RAISED BY [APPELLEE] DURING THE TRIAL AND PRESENTED TO THE JURY WAS WHETHER CONDOMINIUM FEES WERE OWED FOR THE SUBJECT UNIT AND THE AMOUNT OF THESE FEES FOR WHICH [APPELLANT] IS RESPONSIBLE?
DID THE CIVIL COURT DENY THE JURY ITS ROLE AS FACT FINDER IN GENERAL AND ON THE TOPICS OF LIENS AND EXPIRED LIENS SPECIFICALLY?
DID THE CIVIL COURT [ERR] IN UPHOLDING A "LUMP SUM" VERDICT FOR BREACH OF CONTRACT WITH [APPELLANT] WHEN A) FROM JANUARY 2006 UNTIL JANUARY 2007 [APPELLANT] WAS NOT AN AGENT TO THE INCAPACITATED [DECEDENT;] B) FROM JANUARY 2007 UNTIL SEPTEMBER 11, 2009[,] [APPELLANT] WAS NOT APPOINTED AS ADMINISTRATOR[;] C) FROM SEPTEMBER 11, 2009 UNTIL JULY 2011 WHEN [APPELLANT] DID NOT HAVE ACCESS TO THE UNIT OR DECEDENT'S FUNDS[;] OR FROM JULY 2011 UNTIL THE DATE OF TRIAL, WHEN [APPELLANT] DID IN FACT MAKE SOME PAYMENTS AS ABLE FROM DECEDENT'S FUNDS[?]
WHETHER THE VERDICT WAS AGAINST THE LAW AND THE EVIDENCE?
DID THE TRIAL COURT ERR BY CHARACTERIZING THE ISSUE AS "THE EXTINGUISHMENT OF ANY LIEN BY OPERATION OF § 3315(D) OF THE CONDOMINIUM ACT" PRECLUDES RECOVERY OF UNPAID FEES FROM [APPELLANT] UNDER ANY THEORY OF RECOVERY?
SHOULD THE TRIAL COURT HAVE FRAMED THE ISSUE AS 1) BECAUSE [APPELLEE] DID NOT INSTITUTE LIEN ENFORCEMENT PROCEEDINGS WITHIN 3 YEARS OF WHEN THE ASSESSMENTS BECAME PAYABLE, ANY DEBT ASSOCIATED WITH THOSE PAST ASSESSMENTS CAN NO LONGER BE SECURED BY A LIEN DUE TO EXTINGUISHMENT OF THE LIEN AND 2) ANY ATTORNEY['S] FEES AND EXPENSES ONCE POTENTIALLY AVAILABLE TO [APPELLEE] PURSUANT TO THE UNIFORM
CONDOMINIUM ACT ARE NO LONGER AVAILABLE TO IT ONCE THE LIEN IS EXTINGUISHED?(Appellant's Brief at 3-5).
WHETHER THE INCOMPETENCY OF [DECEDENT] SHOULD HAVE BEEN ATTRIBUTED TO [APPELLANT]?
As a prefatory matter, we note appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure; this Court may quash or dismiss an appeal if an appellant fails to comply with these requirements. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the statement of the case section of an appellate brief, Rule 2117 provides, in pertinent part:
Rule 2117. Statement of the Case
(a) General rule.—The statement of the case shall contain, in the following order:
* * *
(4) A closely condensed chronological statement, in narrative form, of all the facts that are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found. See Rule 2132 (references in briefs to the record).
* * *
Pa.R.A.P. 2117(a)(4), (b). Additionally, as to the argument section of an appellate brief, Rule 2119(a) provides:
(b) All argument to be excluded.—The statement of the case shall not contain any argument. It is the responsibility of appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties.
Rule 2119. ArgumentPa.R.A.P. 2119(a). Importantly:
(a) General rule.—The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This [C]ourt will not consider the merits of an argument which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal.In re Estate of Whitley , 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013). Where an appellant fails to raise or properly develop issues on appeal, or where the brief is wholly inadequate to present specific issues for review, a court will not consider the merits of the claims raised on appeal. Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000) (holding appellant waived claim where she failed to set forth adequate argument concerning her claim on appeal; appellant's argument lacked meaningful substance and consisted of mere conclusory statements; appellant failed to explain cogently or even tenuously assert why trial court abused its discretion or made error of law). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super 2006) (explaining appellant's arguments must adhere to rules of appellate procedure, and arguments which are not appropriately developed are waived on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate procedure make clear appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, this Court's ability to provide appellate review is hampered, necessitating waiver of issue on appeal).
Instantly, the defects in Appellant's brief are substantial. Appellant's "Statement of the Case" totals twenty-nine (29) pages, most of which are merely a cut-and-paste of prior filings in this litigation and email exchanges between Appellant's counsel and Appellee's counsel. Notably, Appellant fails to present a closely condensed chronological statement containing all relevant facts necessary to resolve this appeal. See Pa.R.A.P. 2117(a)(4). Likewise, Appellant does not provide a balanced presentation of the history of the proceedings and the respective contentions of the parties. See Pa.R.A.P. 2117(b). Instead, the statement of the case consists mostly of arguments that the court improperly revived an extinguished lien, molded the verdict to include attorney's fees and costs, and decided the matter when the orphans' court allegedly had exclusive subject matter jurisdiction. Inclusion of argument in Appellant's statement of the case violates Rule 2117(b). See id.
More importantly, Appellant's argument section falls woefully short of the requisite standards. At the outset, despite the eighteen issues raised on appeal, Appellant's argument is only three pages long. Appellant also failed to divide her argument section into distinct parts corresponding to each of the eighteen issues raised on appeal. See Pa.R.A.P. 2119(a). Further, Appellant's brief presents no cogent argument for the issues and includes only extraneous legal citations, which do not support the many different claims raised. See In re Estate of Whitley , supra. Appellant's argument merely concludes that her due process rights were violated when the court did not transfer the case to the orphans' court for a ruling on the lien issue. Appellant, however, includes superfluous citations to support this contention. Additionally, Appellant's argument fails to address or acknowledge most of the remaining issues raised on appeal. The substantial defects in Appellant's brief arguably preclude meaningful review and constitute sufficient grounds for this Court to suppress Appellant's brief and dismiss the appeal. See Butler , supra.
Nevertheless, to the extent the trial court was able to discern Appellant's issues, our standard of review for the denial of a motion for JNOV is:
[Whether], when reading the record in the light most favorable to the verdict winner and granting that party every favorable inference therefrom, there was sufficient competent evidence to sustain the verdict. Questions of
credibility and conflicts in the evidence are for the trial court to resolve and the reviewing court should not reweigh the evidence. Absent an abuse of discretion, the trial court's determination will not be disturbed.Holt v. Navarro , 932 A.2d 915, 919 (Pa.Super. 2007), appeal denied, 597 Pa. 717, 951 A.2d 1164 (2008). Further:
There are two bases upon which a [JNOV] can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.Id. "When reviewing a trial court's denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict.... Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact.... A JNOV should be entered only in a clear case." Id.
The relevant version of Section 3315 of the Uniform Condominium Act ("UCA") applicable to Appellant's case provided, in pertinent part, as follows:
§ Lien for assessment
(a) General rule.—The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the
assessment or fine becomes due. The association's lien may be foreclosed in like manner as a mortgage on real estate.68 Pa.C.S.A. §§ 3315(a), (d), (e), and (f). "Subsection (e) makes clear that the association may have remedies short of foreclosure of its lien that can be used to collect unpaid assessment. The association, for example, might bring an action in debt or breach of contract against a recalcitrant unit owner rather than resorting to foreclosure." 68 Pa.C.S.A. § 3315 cmt. 3. Importantly, "issues not raised in post[-]trial motions are waived for purposes of appeal." Diener Brick Co. v. Mastro Masonry Contractor , 885 A.2d 1034, 1038 (Pa.Super. 2005) (citing Pa.R.C.P. 227.1).
* * *
(d) Limitation of actions.—A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the assessments become payable.
(e) Other remedies preserved.—Nothing in this section shall be construed to prohibit actions or suits to recover sums for which subsection (a) creates a lien or to prohibit an association from taking a deed in lieu of foreclosure.
(f) Costs and attorney's fees.—A judgment or decree in any action or suit brought under this section shall include costs and reasonable attorney's fees for the prevailing party.
The legislature amended Section 3315 of the UCA on April 20, 2016 (effective June 20, 2016). The amended version of Section 3315(d) now provides a condominium association four years to institute proceedings to enforce a lien before the lien is extinguished. See 68 Pa.C.S.A. § 3315(d) (as amended).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael E. McCarthy, we conclude Appellant's issues on appeal merit no relief. The trial court opinion fully discusses and properly disposes of the questions it was able to discern as preserved issues. ( See Trial Court Opinion, filed June 29, 2015, at 1-7 (finding: (a) Appellant's Rule 1925(b) statement contends court failed to give Appellant opportunity to argue lien extinguishment pursuant to Section 3315(d) of UCA; however, Appellant's lien extinguishment claim is arguably waived due to Appellant's failure to raise this claim in her post-trial motion; moreover, Appellant's contention that Appellee's lien is extinguished pursuant to Section 3315(d) of UCA is incorrect; mere expiration of lien available to Appellee would not extinguish underlying debt, it would just make debt unsecured by condominium; additionally, comment 3 to Section 3315(e) plainly acknowledges Appellee's authority to recover unpaid condominium, maintenance, and late fees under breach of contract theory; Appellee pursued breach of contract theory, and jury determined Appellee proved underlying debt based on unpaid condominium, maintenance, and late fees; Appellant concedes case went to jury on breach of contract theory; in fact, Appellant's only complaint is that court revived extinguished lien when it transformed damages under breach of contract theory into lien; contrary to Appellant's claim, court did not revive extinguished lien; verdict rendered by jury constituted assessment against Appellant within meaning of UCA; as such, court had authority pursuant to Section 3315(a) to acknowledge verdict as lien; thus, Appellant's lien extinguishment claim has no merit; (b) record does not support Appellant's assertions that court failed to consider "lack of competent contracting party" and should have molded verdict to exclude unpaid condominium, maintenance, and late fees accrued prior to appointment of Appellant as administratrix of estate; Appellant conceded unawareness of any facts sufficient to dispute fee obligation; Appellant further did not allege that Decedent was incompetent when she entered condominium agreement; thus, these claims warrant no relief; (c) Appellant insists the court should have reduced verdict pursuant to doctrine of laches; however, Appellant failed to demonstrate prejudice or harm necessary to sustain doctrine of laches claim; any delay in recovery of unpaid condominium, maintenance, and late fees was caused mostly by conflict within Decedent's family; additionally, Appellant's own pre-trial statement described Appellee's diligent pursuit of unpaid condominium, maintenance, and late fees; thus, Appellant was not entitled to doctrine of laches jury instruction or reduction of verdict based on doctrine of laches; (d) although Appellant objects to Appellee's request for attorney's fees and costs, UCA authorizes Appellee's request, which is manifestly reasonable under circumstances of case; many legal expenses Appellee incurred were due to Appellant's repeated attacks on court's jurisdiction despite court's prior resolution of jurisdiction issue; Appellant also claims court erred when it did not hold hearing on attorney's fees issue; however, court engaged in extensive discussions with parties about Appellant's exposure to attorney's fees and costs; court further explained to Appellant that attorney's fees were presumptively available to Appellee pursuant to UCA; thus, hearing on attorney's fees issue would serve only to delay proceedings unnecessarily; therefore, court properly molded verdict, entered judgment in favor of Appellee, and denied Appellant's post-trial motion). Accordingly, to the extent the trial court found these issues preserved, we affirm on the basis of the trial court opinion.
Due to our disposition, we deny all open motions.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/4/2016
Image materials not available for display.