J-A18001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DOMINIC S. BURNO,
Appellant No. 1572 MDA 2015
Appeal from the Judgment of Sentence Entered August 26, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005415-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:
FILED MARCH 03, 2017
I concur in the Majority’s determination that the trial court did not lack
subject matter jurisdiction in this case. I must disagree, however, with the
Majority’s conclusion that there was sufficient evidence to support
Appellant’s conviction of Criminal Trespass – Building or Occupied Structure,
18 Pa.C.S. § 3503(a)(1)(i). Consequently, I respectfully dissent on that
issue.
Initially, I concur with the Majority that the trial court did not err when
it denied Appellant’s motion to dismiss the charges for lack of subject matter
jurisdiction. Nevertheless, based on undisputed facts solicited at trial, I ____________________________________________
* Former Justice specially assigned to the Superior Court. J-A18001-16
believe a landlord/tenant relationship existed between Appellant and Ms.
Hutchinson, and that this case is a civil — not criminal — matter. This Court
has explained that “[t]he relation of landlord and tenant is always created by
contract, either express or implied. It cannot exist without such contract[.]”
See Jones v. Levin, 940 A.2d 451, 455 (Pa. Super. 2007) (citations
omitted; brackets in original). Further, “the payment of rent is not in all
cases essential to the creation of a landlord-tenant relationship[,]” as “courts
have in certain cases concluded that a lease existed despite the lack of rent
paid, but in such cases, there was evidence of some form of rent substitute,
i.e., an alternative benefit or return to the landlord, offered and accepted as
consideration.” Id. (citations omitted). Here, Ms. Hutchinson testified to
entering an oral agreement that Ms. Hoffman, Appellant, Chris and Kayla
Hodges, and Ms. Hoffman’s youngest daughter would move into the Camp
Street property, for an unspecified term, in exchange for paying the
mortgage, utilities, and the costs of making certain repairs to the property.1
See N.T. Jury Trial, 8/10/15-8/12/15, at 10-13. Ms. Hutchinson received an
alternative benefit, or a rent substitute, for allowing the group to live at the
Camp Street house, namely repairs and payment of the mortgage.
____________________________________________
1 I note that, “[r]eal property, including any personal property thereon, may be leased for a term of not more than three years by a landlord or his agent to a tenant or his agent, by oral or written contract or agreement.” 68 P.S. § 250.201.
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Accordingly, in my view, a landlord/tenant relationship existed between Ms.
Hutchinson and the group, including Appellant.
Because a landlord/tenant relationship existed, I believe Ms.
Hutchinson should have utilized the procedures set forth in the Landlord
Tenant Act of 1951, 68 P.S. § 250.101 et seq., to lawfully evict Appellant.
Indeed, Ms. Hutchinson conceded that she could have filed a landlord/tenant
complaint, and that the district justice’s office was willing to accept her
complaint for a fee. N.T. Jury Trial, at 72-73. Our Supreme Court has
explained that the Landlord Tenant Act “sets up the procedure whereby a
landlord may repossess premises if he has a right to evict the tenant.”
Warren v. City of Philadelphia, 115 A.2d 218, 221 (Pa. 1955) (emphasis
in original). The Landlord Tenant Act states that all other inconsistent acts
are repealed and that “[i]t is intended that this act shall furnish a complete
and exclusive system in itself.” 68 P.S. § 250.602 (emphasis added).
Generally, the statutory procedures set forth in the Landlord Tenant Act, in
conjunction with applicable case law and prevailing public policy, tend to
provide protections for tenants and discourage landlords from evicting
tenants through self-help, which includes acts such as “barring entry by the
tenant, removing the tenant’s personal property, the use of force or
violence, or by deteriorating the physical condition of the premises by
reducing or discontinuing utility services or by removing parts of the
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structure itself such as doors or windows.” Lenair v. Campbell, 31 Pa. D.
& C.3d 237, 240 (Philadelphia Cty. 1984).2 In my opinion, it is improper to
sidestep the procedures of the Landlord Tenant Act — which, again, are
meant to constitute a complete and exclusive system — and negate the
obvious efforts made by our Legislature to protect tenants through the law. 3
I also disapprove of using the criminal process to resolve landlord/tenant
2 See, e.g., O’Brien v. Jacob Engle Foundation, Inc., 47 Pa. D. & C.3d 557, 558-59 (Cumberland Cty. 1987) (noting that self-help should not be used where judicial procedures, like the Landlord Tenant Act, are available) (internal citations omitted); Lenair, 31 Pa. D. & C.3d at 241 (“Upon reviewing the [Landlord Tenant Act] in its entirety, it becomes apparent that self-help eviction is not a remedy under any circumstances. … [T]he legislature clearly expressed its intention that the Act be the sole source of rights, remedies and procedures governing the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d 444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession of his leased premises from his tenant for nonpayment of rent must do so either by bringing an action under the Landlord and Tenant Act [], and the related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by bringing an action in ejectment.”). See also Kuriger v. Cramer, 498 A.2d 1331, 1337 n.14 (Pa. Super. 1985) (observing that “in Pennsylvania[,] landlords have been enjoined from proceeding with self-help evictions on the basis that their exclusive remedy was an action in ejectment, or by summary process as provided for by the Pennsylvania Landlord and Tenant Act, [] and the related Pennsylvania Rules of Civil Procedure for District Justices”) (internal citation omitted). 3 In Wofford, the court addressed why safeguards for tenants are necessary and self-help evictions are disfavored, particularly in cases involving the nonpayment of rent. The court discerned that self-help evictions are likely to increase the potential for violent confrontations between landlords and tenants, violate the due process rights of tenants, and undermine the implied warranty of habitability recognized by our Supreme Court. Wofford, 2 Pa. D. & C.3d at 450-51.
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disputes. Eviction cases, including the case at bar, should be brought by
aggrieved landlords in the appropriate civil forum, as opposed to burdening
and abusing the criminal justice system with such matters.4
Notwithstanding, with respect to Appellant’s sufficiency of the evidence
claim, a person commits criminal trespass “if, knowing that he is not
licensed or privileged to do so, he … enters, gains entry by subterfuge or
Free access — add to your briefcase to read the full text and ask questions with AI
J-A18001-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
DOMINIC S. BURNO,
Appellant No. 1572 MDA 2015
Appeal from the Judgment of Sentence Entered August 26, 2015 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005415-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:
FILED MARCH 03, 2017
I concur in the Majority’s determination that the trial court did not lack
subject matter jurisdiction in this case. I must disagree, however, with the
Majority’s conclusion that there was sufficient evidence to support
Appellant’s conviction of Criminal Trespass – Building or Occupied Structure,
18 Pa.C.S. § 3503(a)(1)(i). Consequently, I respectfully dissent on that
issue.
Initially, I concur with the Majority that the trial court did not err when
it denied Appellant’s motion to dismiss the charges for lack of subject matter
jurisdiction. Nevertheless, based on undisputed facts solicited at trial, I ____________________________________________
* Former Justice specially assigned to the Superior Court. J-A18001-16
believe a landlord/tenant relationship existed between Appellant and Ms.
Hutchinson, and that this case is a civil — not criminal — matter. This Court
has explained that “[t]he relation of landlord and tenant is always created by
contract, either express or implied. It cannot exist without such contract[.]”
See Jones v. Levin, 940 A.2d 451, 455 (Pa. Super. 2007) (citations
omitted; brackets in original). Further, “the payment of rent is not in all
cases essential to the creation of a landlord-tenant relationship[,]” as “courts
have in certain cases concluded that a lease existed despite the lack of rent
paid, but in such cases, there was evidence of some form of rent substitute,
i.e., an alternative benefit or return to the landlord, offered and accepted as
consideration.” Id. (citations omitted). Here, Ms. Hutchinson testified to
entering an oral agreement that Ms. Hoffman, Appellant, Chris and Kayla
Hodges, and Ms. Hoffman’s youngest daughter would move into the Camp
Street property, for an unspecified term, in exchange for paying the
mortgage, utilities, and the costs of making certain repairs to the property.1
See N.T. Jury Trial, 8/10/15-8/12/15, at 10-13. Ms. Hutchinson received an
alternative benefit, or a rent substitute, for allowing the group to live at the
Camp Street house, namely repairs and payment of the mortgage.
____________________________________________
1 I note that, “[r]eal property, including any personal property thereon, may be leased for a term of not more than three years by a landlord or his agent to a tenant or his agent, by oral or written contract or agreement.” 68 P.S. § 250.201.
-2- J-A18001-16
Accordingly, in my view, a landlord/tenant relationship existed between Ms.
Hutchinson and the group, including Appellant.
Because a landlord/tenant relationship existed, I believe Ms.
Hutchinson should have utilized the procedures set forth in the Landlord
Tenant Act of 1951, 68 P.S. § 250.101 et seq., to lawfully evict Appellant.
Indeed, Ms. Hutchinson conceded that she could have filed a landlord/tenant
complaint, and that the district justice’s office was willing to accept her
complaint for a fee. N.T. Jury Trial, at 72-73. Our Supreme Court has
explained that the Landlord Tenant Act “sets up the procedure whereby a
landlord may repossess premises if he has a right to evict the tenant.”
Warren v. City of Philadelphia, 115 A.2d 218, 221 (Pa. 1955) (emphasis
in original). The Landlord Tenant Act states that all other inconsistent acts
are repealed and that “[i]t is intended that this act shall furnish a complete
and exclusive system in itself.” 68 P.S. § 250.602 (emphasis added).
Generally, the statutory procedures set forth in the Landlord Tenant Act, in
conjunction with applicable case law and prevailing public policy, tend to
provide protections for tenants and discourage landlords from evicting
tenants through self-help, which includes acts such as “barring entry by the
tenant, removing the tenant’s personal property, the use of force or
violence, or by deteriorating the physical condition of the premises by
reducing or discontinuing utility services or by removing parts of the
-3- J-A18001-16
structure itself such as doors or windows.” Lenair v. Campbell, 31 Pa. D.
& C.3d 237, 240 (Philadelphia Cty. 1984).2 In my opinion, it is improper to
sidestep the procedures of the Landlord Tenant Act — which, again, are
meant to constitute a complete and exclusive system — and negate the
obvious efforts made by our Legislature to protect tenants through the law. 3
I also disapprove of using the criminal process to resolve landlord/tenant
2 See, e.g., O’Brien v. Jacob Engle Foundation, Inc., 47 Pa. D. & C.3d 557, 558-59 (Cumberland Cty. 1987) (noting that self-help should not be used where judicial procedures, like the Landlord Tenant Act, are available) (internal citations omitted); Lenair, 31 Pa. D. & C.3d at 241 (“Upon reviewing the [Landlord Tenant Act] in its entirety, it becomes apparent that self-help eviction is not a remedy under any circumstances. … [T]he legislature clearly expressed its intention that the Act be the sole source of rights, remedies and procedures governing the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d 444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession of his leased premises from his tenant for nonpayment of rent must do so either by bringing an action under the Landlord and Tenant Act [], and the related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by bringing an action in ejectment.”). See also Kuriger v. Cramer, 498 A.2d 1331, 1337 n.14 (Pa. Super. 1985) (observing that “in Pennsylvania[,] landlords have been enjoined from proceeding with self-help evictions on the basis that their exclusive remedy was an action in ejectment, or by summary process as provided for by the Pennsylvania Landlord and Tenant Act, [] and the related Pennsylvania Rules of Civil Procedure for District Justices”) (internal citation omitted). 3 In Wofford, the court addressed why safeguards for tenants are necessary and self-help evictions are disfavored, particularly in cases involving the nonpayment of rent. The court discerned that self-help evictions are likely to increase the potential for violent confrontations between landlords and tenants, violate the due process rights of tenants, and undermine the implied warranty of habitability recognized by our Supreme Court. Wofford, 2 Pa. D. & C.3d at 450-51.
-4- J-A18001-16
disputes. Eviction cases, including the case at bar, should be brought by
aggrieved landlords in the appropriate civil forum, as opposed to burdening
and abusing the criminal justice system with such matters.4
Notwithstanding, with respect to Appellant’s sufficiency of the evidence
claim, a person commits criminal trespass “if, knowing that he is not
licensed or privileged to do so, he … enters, gains entry by subterfuge or
surreptitiously remains in any building or occupied structure or separately
secured or occupied portion thereof[.]” 18 Pa.C.S. § 3503(a)(1)(i).5
Because Appellant began residing in the house as Ms. Hutchinson’s tenant, I
do not believe that there was sufficient evidence to prove that Appellant did
not have a license or privilege to be on the property. The Commonwealth
failed to demonstrate that Appellant was lawfully evicted and, therefore, that
he was not licensed or privileged to be in the house. Without proving that a
lawful eviction took place, Appellant continued to have a viable property
4 The Majority relies on Commonwealth v. Groft, 623 A.2d 341 (Pa. Super. 1993), for the proposition that “[t]he subject matter addressed in a civil lawsuit and a criminal prosecution do not have to be mutually exclusive.” Id. at 344. I note that the Landlord Tenant Act does not appear to be specifically at issue in that case and there was no evidence of either an oral or written lease agreement between the appellant and his mother; instead, this Court considered whether the appellant had an ownership interest in the home he shared with his mother where he had contributed money for purchasing the land and had helped construct the home. Id. 5 “A person is privileged … if he may naturally be expected to be on the premises often and in the natural course of his duties or habits….” Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016).
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interest in the house, and his license or privilege to remain on the property
persisted. It is the Commonwealth’s burden to prove each element of a
crime beyond a reasonable doubt, and it has not met its burden of proving a
lack of license or privilege in this case. See Commonwealth v. Thomas,
561 A.2d 699, 704 (Pa. 1989) (citations omitted) (“To sustain a conviction,
the facts and circumstances which the Commonwealth must prove must be
such that every essential element of the crime is established beyond a
reasonable doubt.”). Therefore, I would conclude that the evidence was
insufficient to support Appellant’s conviction of criminal trespass and, as a
result, I would vacate his judgment of sentence.6
6 Because I would vacate Appellant’s judgment of sentence on that basis, I would not address Appellant’s third issue raised on appeal regarding a question of law posed by the jury.
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