Opinion
J-S23002-20 No. 3436 EDA 2019
11-05-2020
ASPEN ENTERPRISES, LLC v. KIA THOMAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered January 14, 2020
In the Court of Common Pleas of Delaware County Civil Division at No(s): No. CV-2017-010493 BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY NICHOLS, J.:
Appellant Kia Thomas appeals from the judgment entered in favor of Appellee Aspen Enterprises, LLC, following a non-jury trial. Appellant claims the trial court erred by dismissing her counterclaim for rent paid to Appellee, admitting certain testimony, and awarding damages. We affirm.
We adopt the trial court's findings of fact. See Trial Ct. Op., 7/9/19, at 3-19. On January 8, 2018, Appellee sued Appellant for breach of contract, specifically that Appellee breached the residential lease agreement by failing to pay rent and damaging the property in question. See R.R. at 15a-17a. In relevant part, Appellee claimed that Appellant owed rent for November 2017 through February 2018. Id. at 13a-14a. Appellant filed an answer, new matter, and counterclaim on February 15, 2018.
We may cite to the reproduced record for the parties' convenience.
Appellant's counterclaim alleged that she paid rent to Appellant between May 2017 and November 2017. Id. at 43a. Appellant asserted that in November 2017, she learned that Appellee did not obtain an occupancy permit that was required by a City of Chester ordinance (Chester Ordinance). Id. According to Appellee, Section 1703.02 "precludes an owner from collecting rent or obtaining possession of the property during any period of non-compliance with the Ordinance." Id.
The Chester Ordinance states, in relevant part:
1703.02 SINGLE FAMILY RESIDENCES AND DUPLEX RESIDENCESId. at 47a. In Appellant's view, Appellee improperly (1) collected rent when it did not have an occupancy permit and (2) withheld her security deposit. Id. at 43a-44a.
a. No owner shall occupy or let to any other occupant any dwelling unit unless a Use and Occupancy Permit has been obtained from the Department of Public Safety.
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c. Any owner who is required to obtain a Use and Occupancy Permit under this Article shall be subject to all remedies allowed by law including prosecution and fines under any applicable City ordinance and in addition thereto they shall be denied the right to recover possession of the premises or to collect rent during any period of noncompliance[.]
Appellee filed preliminary objections in the nature of a demurrer to Appellant's counterclaim. Id. at 51a. Specifically, Appellee contended, among other things, that Section 1703.02 did not provide for a private cause of action. Id. at 53a.
Appellant filed an answer and supporting brief in response to Appellee's preliminary objections. In Appellant's view, Section 1703.02(c) "provides that the landlord shall be subject to all remedies allowed by law." Id. at 108a. Appellant reasons that she must be permitted to use the Chester Ordinance as a defense to Appellee's claim or "the Ordinance would not be enforceable and would have no substance," as a "landlord would have no incentive to comply with the Ordinance." Id. at 109a. The trial court sustained Appellee's preliminary objections and dismissed Appellant's counterclaim without prejudice to file an amended answer, new matter, and counterclaim. Id. at 114a. Appellant filed an amended answer, new matter, and counterclaim, which omitted her claim under Section 1703.02. Id. at 120a.
Following discovery, the trial court held a non-jury trial on May 2, 2019. The trial court summarized the parties' testimony as follows:
At trial, Mr. Neal Fulves testified in his capacity as the principal of [Appellee], and [Appellee] called John C. Winter, a former insurance adjuster and currently a restoration contractor as a damage expert. [Appellee] introduced seven (7) exhibits into the record which consisted of the original lease between the parties, an assignment of the lease, text messages, a lease addendum, photographs, and a damage estimate prepared by John C. Winter, LLC. [Appellee] also called [Appellant] on cross-examination. [Appellant] testified on her own behalf and presented six (6) exhibits into the record consisting of City of Chester Ordinance No. 9, dated April 27, 2016, City of Chester correspondence dated November 17, 2017 notifying [Appellee] that the rental premises were lacking a certificate of occupancy, a repair receipt,
photographs, an agreement of sale for the premises and a notice to quit.Trial Ct. Op., 1/22/20, at 1-2.
The trial court entered a decision in favor of Appellee. Trial Ct. Op., 7/9/19, at 1. The trial court found Mr. Winter's testimony concerning needed repairs for the property to be credible, but found that many of the damages Appellee complained of were the result of water damage from the leaking roof. Id. at 21. The trial court also held that because Appellee did not have a certificate of occupancy, the lease was terminated on November 17, 2017. Id. at 22. As a result, the trial court found Appellant did not have to pay rent or late fees for December 2017 through February 2018. Id.
Appellant timely filed a post-trial motion claiming (1) that the trial court erred by dismissing her counterclaim under the Chester Ordinance, (2) that the trial court erred by permitting the testimony of Mr. Winter, and (3) that the award of damages was against the weight of the evidence. R.R. at 471a-72a. The trial court denied Appellant's post-trial motion on November 14, 2019. Id. at 483a.
Appellant filed a notice of appeal on December 2, 2019. On January 14, 2020, Appellant praeciped for judgment for $6,333.77, perfecting her premature notice of appeal. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Ordinarily, the "Commonwealth Court of Pennsylvania has jurisdiction over appeals from final orders of the courts of common pleas in any case implicating the application, interpretation or enforcement of a local ordinance." Commonwealth v. Asamoah , 809 A.2d 943, 945 n.1 (Pa. Super. 2002) (citation omitted). Because neither party has objected to this Court's jurisdiction, we proceed. See Pa.R.A.P. 741(a). Cf. Smith v. Ivy Lee Real Estate , LLC , 152 A.3d 1062, 1065 (Pa. Super. 2016) (transferring appeal involving municipal ordinance to Commonwealth Court although the parties did not challenge Superior Court's appellate jurisdiction).
On appeal, Appellant raises two issues:
1. The [trial] court erred in dismissing [Appellant's] counter-claim for recovery of rent paid to [Appellee] for the time [Appellee] did not possess an occupancy permit for the premises in violation of Section 1703.02 of the codified ordinances of the City of Chester.
2. The [trial] court erred in awarding [Appellee] $6,333.77 . . . because
Appellant's Brief at i-ii (formatting altered).a. [Appellee did not comply with the provisions of 68 [P.S. §] 512 and therefore should be precluded from recovery of any damages for damage[] to the premises.
b. The [trial] court erred in admitting the testimony of John C. Winter who inspected the premises over a year after [Appellant] had moved out of the premises.
c. The verdict was against the weight of the evidence.
Dismissal of Private Right of Action Counter-Claim
Appellant's first issue is that the trial court erred in sustaining Appellee's preliminary objections to her counter-claim to recover the rent she paid to Appellee. Id. at 14-18. Appellant argues that Appellee violated Section 1703.02 of the Codified Ordinances of the City of Chester, which prohibits a landlord who has failed to obtain a use and occupancy permit from collecting rent. Id. at 15. Appellant asserts that "[t]he [Chester] Ordinance specifically provides that the landlord shall be subject to all remedies allowed by law." Id. at 15, 17. Appellant claims that although the trial court denied Appellee unpaid rent as damages, the trial court also denied her the right under the Chester Ordinance to recover the rent she already paid. Id. at 16. In support, Appellant cites Frempong v. Richardson , 209 A.3d 1001 (Pa. Super. 2019), where this Court interpreted a similar Philadelphia ordinance. Id. at 16-17. Appellant acknowledges that the Chester and Philadelphia ordinances are not identical, but argues that because Appellee "initiated this action in violation of the [Chester] Ordinance, [Appellant] should be allowed to recover rent that was unjustly paid to the [Appellee], rent it was not entitled to." Id. at 18.
Appellee responds that the Chester Ordinance provides for an enforcement action by the City of Chester for any violation, but does not create a private cause of action. Appellee's Brief at 6-7 (citing Sections 1703.02 and 1703.99 of the Codified Ordinances of the City of Chester). Appellee argues that Frempong is distinguishable from the facts of this case because Frempong did not involve a tenant's counterclaim under a similar ordinance. Id. at 8.
Initially, we note the following:
Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.Am. Interior Constr. & Blinds Inc. v. Benjamin's Desk , LLC , 206 A.3d 509, 512 (Pa. Super. 2019) (citation omitted).
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
"We review a question of statutory interpretation de novo, and the scope of our review is plenary." Frempong , 209 A.3d at 1009 (citation omitted and formatting altered). "While the Statutory Construction Act is not expressly applicable to the construction of local ordinances, the principles contained therein are nevertheless useful." Id. at 1010 (citation omitted).
The Frempong Court addressed, among other issues, the interpretation of Section 9-3901(4)(e) of the Philadelphia Code, which similarly states that an owner without a rental license "shall be denied the right to recover possession of the premises or to collect rent during" the period of noncompliance. See id. at 1008 (quoting Phila. Code. § 9-3901(4)(e)). Cf. R.R. at 47a (quoting the Chester Ordinance at issue). Frempong , however, did not address whether a tenant had a private right of action.
Although not acknowledged by the Frempong Court or the instant parties, we note that the Philadelphia Code explicitly provides a private right of action for tenants against non-compliant landlords. Phila. Code. § 9-3901(4)(f) ("Private Right of Action. Any tenant of any property subject to the provisions of this Chapter shall have the right to bring an action against the owner of such property to compel compliance with this Chapter").
There are two types of a private right of action: explicit and implicit. See Estate of Witthoeft v. Kiskaddon , 733 A.2d 623, 626 (Pa. 1999). If a statute does not explicitly, i.e., expressly, provide a private remedy, then Pennsylvania has adopted "a three-prong analysis to assist in determining whether a private remedy is implicit in a statute not expressly providing one." Id. (citation omitted). Our Supreme Court has framed the three-prong implicit analysis as follows:
"The violation of a statute and the fact that some person suffered harm does not automatically give rise to a private cause of action in favor of the injured person. This court will not engraft a private cause of action onto the statute without further guidance from the General Assembly." Witthoeft , 733 A.2d at 627.
first, is the plaintiff one of the class for whose especial benefit the statute was enacted,—that is, does the statute create a right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?Id. (emphasis in original, citation omitted, and formatting altered).
The plaintiff, upon being properly challenged, bears the burden of proof of establishing the existence of a private right of action, whether explicit or implicit. See id. It is well-settled, however, that "[t]his Court will not act as counsel and will not develop arguments on behalf of an appellant." Commonwealth v. Hardy , 918 A.2d 766, 771 (Pa. Super. 2007) (citation omitted); see Commonwealth v. Williams , 782 A.2d 517, 532 (Pa. 2001) (Castille, J., concurring) (observing that the "Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter.").
Instantly, Appellant has not explained how or why the Ordinance granted her any private right of action. See Appellant's Brief at 14-18. Further, she does not discuss the applicable rules of statutory construction to construe the Chester Ordinance. See generally Witthoeft , 733 A.2d at 626. Even though the controlling Philadelphia Ordinance in Frempong provides an explicit private right of action for tenants against noncompliant landlords, this Court did not discuss the private right of action in its disposition of the case. Therefore, Appellant's reliance on Frempong is misplaced under the circumstances of the instant case, particularly when Appellant has not construed the Chester Ordinance nor has Appellant argued or cited legal authority to establish any private right of action. Compare R.R. at 47a (quoting Ordinance), with Phila. Code. § 9-3901(4)(f) (expressly providing the tenant an explicit private right of action). Accordingly, absent any developed argument by Appellant, we respectfully decline to address whether any private right of action exists for Appellant under the Ordinance as it would require this Court to act as her advocate. See Hardy , 918 A.2d at 771; see also Williams , 782 A.2d at 532. Accordingly, we hold that Appellant has not established the trial court erred when it dismissed Appellant's counterclaim. See Am. Interior Constr., 206 A.3d at 512.
Challenge to the Amount of Damages
In support of her second issue, Appellant raises three arguments. First, Appellant argues that Appellee is precluded from recovering any damages because it failed to comply with 68 P.S. § 512 of the Landlord and Tenant Act. Appellant's Brief at 18. Specifically, Appellant reasons that Appellee was required to provide her with a written, itemized list of damages under Section 512 before filing suit. Id. at 23-24 (citing Nitardy v. Chabot , 195 A.3d 941, 948 (Pa. Super. 2018) (per curiam)).
We note the relevant standard of review:
Our review in a non-jury case is limited to whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. We must grant the court's findings of fact the same weight and effect as the verdict of a jury and, accordingly, may disturb the non-jury verdict only if the court's findings are unsupported by competent evidence or the court committed legal error that affected the outcome of the trial. It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the factfinder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.Frempong , 209 A.3d at 1006 (citation omitted).
Section 250.512 states in relevant part as follows:
(a) Every landlord shall within thirty days of termination of a lease or upon surrender and acceptance of the leasehold premises, whichever first occurs, provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable. Delivery of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant. Nothing in this section shall preclude the landlord from refusing to return the escrow fund, including any unpaid interest thereon, for nonpayment of rent or for the breach of any other condition in the lease by the tenant.68 P.S. § 250.512.
(b) Any landlord who fails to provide a written list within thirty days as required in subsection (a), above, shall forfeit all rights to withhold any portion of sums held in escrow, including any unpaid interest thereon, or to bring suit against the tenant for damages to the leasehold premises.
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(e) Failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section.
In Nitardy , the landlord argued to the trial court that because the tenants did not provide him with a forwarding address when they vacated the property on June 19, 2014, he could keep the tenants' security deposit under Section 250.512(e). Nitardy , 195 A.3d at 944, 949. The trial court declined to enforce Section 250.512(e) because the parties remained in email contact, the tenants provided the landlord with a forwarding address on July 15, 2014, and therefore, the landlord had the information necessary to return the security deposit. Id. at 949. The landlord appealed, and this Court affirmed because the record supported the trial court's findings. Id. at 949-50.
Instantly, after careful review of the record, we agree with the trial court's finding that Appellant failed to provide Appellee with a forwarding address at the time she moved out of the residence. See R.R. at 235a; see also Trial Ct. Op., 1/22/20, at 4 (finding Mr. Fulves's testimony credible that Appellant failed to provide a forwarding address). To the extent Appellant relies on Nitardy , the facts of that case are distinguishable. Unlike the tenants in Nitardy , Appellant did not establish she stayed in email contact or provided a forwarding address upon terminating the lease. See Nitardy , 195 A.3d at 944, 949. Therefore, we hold that the trial court did not err in determining that Appellee could retain Appellant's security deposit to apply it against the cost of damages to the premises. See Frempong , 209 A.3d at 1006.
Testimony of John Winter
We summarize Appellant's second and third arguments together. By way of background, Appellant objected to Mr. Winter's testimony on the grounds that his damages testimony was unreliable because Mr. Winter inspected the property more than one year after Appellant moved out of the premises, and that damage to the carpets and floors could be explained by fifteen years of wear and tear. See R.R. at 169a-70a. The trial court overruled Appellant's objection on the basis that it went to the weight of Mr. Winter's testimony. Id. at 170a.
On appeal, Appellant asserts the trial court erred by admitting the testimony of Mr. Winter. Appellant's Brief at 24. In her view, the trial court did not adequately consider that much of the damage alleged by Appellee was due to a "leaking roof and plumbing." Id. at 25. She highlights the discrepancy between Mr. Winter's calculation of damages as $31,233.58, and the amount of damages the trial court actually awarded. Id. Appellant maintains that "Mr. Winter could give no evidence as to how the property was damaged." Id. In Appellant's view, the trial court's "admission of this evidence was manifestly unreasonable" and an "abuse of discretion." Id. at 25-26. Appellant's third argument is that the amount awarded was against the weight of the evidence. Id. at 26. Appellant incorporates her prior arguments and reiterates that there was no testimony "as to how the property was damaged." Id.
Briefly, it is well-settled that
the factfinder is free to believe all, part, or none of the evidence, and the Superior Court will not disturb the trial court's credibility determinations. Assessments of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight and credibility determinations or substitute our judgments for those of the factfinder.Frempong , 209 A.3d at 1006 (citation omitted).
[A]ppellate review of a weight claim is a review of the trial court's exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.In re Estate of Smaling , 80 A.3d 485, 490 (Pa. Super. 2013) (en banc) (citation omitted and formatting altered).
After careful review of the record, the parties' arguments, and the trial court's opinion, we agree with the trial court's reasoning that Winters could testify as to the damages and condition of the premises. See Trial Ct. Op., 1/22/20, at 4-5 (summarizing the basis of Mr. Winter's testimony and stating it found Mr. Winter's testimony credible). We also discern no abuse of discretion in the trial court's denial of Appellant's motion for a new trial based on the weight of the evidence. See Smaling , 80 A.3d at 490. Accordingly, for the foregoing reasons, Appellant is not entitled to relief.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/5/20
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