J-S70007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VIKAS GUPTA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CONSOLIDATED PROPERTIES, LLC : : Appellant : No. 810 MDA 2017
Appeal from the Judgment Entered April 25, 2017 In the Court of Common Pleas of Cumberland County Civil Division at No(s): 12-7444
BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2017
Appellant, Consolidated Properties, LLC (“Landlord”), appeals from the
judgment entered in the Cumberland County Court of Common Pleas, in
favor of Appellee, Vikas Gupta (“Tenant”), in this landlord-tenant action. We
affirm in part, vacate in part, and remand for modification of damages.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case. Therefore, we have no reason to restate them. We add
that the court denied Landlord’s motion for reconsideration on April 19,
2017, and entered judgment in favor of Tenant on April 25, 2017. On May
18, 2017, Landlord filed a timely notice of appeal. On May 23, 2017, the
court ordered Landlord to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and Landlord timely complied.
Landlord raises the following issues for our review: J-S70007-17
[WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED] A LANDLORD [DOES NOT HAVE] AN OPPORTUNITY TO REMEDY AN ALLEGED DEFECT IN RESIDENTIAL RENTAL PROPERTY UNDER PENNSYLVANIA’S IMPLIED WARRANTY OF HABITABILITY?
[WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED] [TENANT] SUSTAIN[ED] HIS BURDEN OF PROOF THAT A PROPERTY VIOLATED PENNSYLVANIA’S IMPLIED WARRANTY OF HABITABILITY WHERE [TENANT]’S PHOTOGRAPHIC EVIDENCE WAS INCONSISTENT WITH HIS TESTIMONY?
[WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED] A WRITTEN, EXECUTED ACCORD AND SATISFACTION [DID NOT] BAR [TENANT] FROM PURSUING A CLAIM WHERE [LANDLORD] RETURNED THE SECURITY DEPOSIT AS CONSIDERATION?
[WHETHER THE TRIAL COURT ERRED WHEN IT AWARDED TENANT LOST WAGES?]
(Landlord’s Brief at 5).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Merle L.
Ebert, Jr., we conclude Landlord’s issues one through three merit no relief.
The trial court opinion comprehensively discusses and properly disposes of
the questions presented. (See Trial Court Opinion, filed July 17, 2017, at 5-
10) (finding: (1-2) insects heavily infested apartment; Tenant and Tenant’s
wife credibly testified regarding degree of infestation; Tenant submitted
documentary evidence showing insects remained in apartment after several
extermination treatments and cleanings; Landlord failed to eliminate insect
infestation for approximately one-third of lease period; evidence presented
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at trial indicated Landlord had notice of insect infestation, and reasonable
opportunity to remedy infestation, but failed to do so in reasonable time
frame; degree of insect infestation prevented Tenant from using apartment
for intended purpose of habitation; Tenant had reasonable concerns for
health and safety of his family due to conditions inside apartment; record
does not support Landlord’s contention that trial court created separate
standard of habitability between lower-income and higher-income rental
housing; court properly found Landlord breached implied warranty of
habitability and correctly awarded damages to Tenant; (3) first, no
reasonable dispute existed between parties; Tenant was unable to live in
residence due to insect infestation; Tenant did not breach lease agreement
when Tenant vacated residence because apartment was uninhabitable;
second, Landlord gave up nothing in consideration of accord and
satisfaction; Landlord owed Tenant return of security deposit regardless of
whether parties purportedly reached meeting of minds; finally, Tenant did
not accept and retain Landlord’s offered payment; Tenant initially accepted
Landlord’s return of security deposit but immediately rejected it; Tenant
communicated his rejection to Landlord and refused to cash check;
therefore, Landlord failed to establish accord and satisfaction). We accept
the court’s analysis and affirm as to issues one through three on the basis of
the trial court opinion.
On the issue on damages, however, the trial court and the parties
-3- J-S70007-17
agree that the court should not have considered or awarded anything for lost
wages and travel expenses. The trial court asks us to remand the case to
allow the court to modify the judgment to remove the amount awarded to
Tenant for lost wages and travel expenses. Accordingly, we affirm the trial
court’s decision in part; but we vacate the judgment in part and remand for
modification of the damages to exclude lost wages and travel expenses.
Judgment affirmed in part and vacated in part; case remanded for
modification of damages. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/21/2017
-4- Circulated 11/02/2017 09:21 AM
VIKAS GUPTA, : COURT OF COMMON PLEAS OF IN THE PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
V.
CONSOLIDATED PROPERTIES, DEFENDANT- : 2012=7444-CIVIL
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)
In this civil action, Consolidated Properties (hereinafter, "Appellant") challenges
the verdict entered in favor of Appellee, in the amount of $3,677.66 plus costs and
interest, following a non -jury trial in this matter. The verdict was recorded on November
30, 2016, and Appellant filed a timely post -trial motion for post -trial relief on December
12, 2016. That motion was denied by an Opinion and Order of Court dated April 19,
2017. Appellant filed a timely Notice of Appeal on May 18, 2017, and a statement of
errors complained of on appeal on June 12, 2017. Appellant's three pages of bases for
appeal are as follows:
1. The decision of this Court was erroneous as a matter of law.
2. The Court's Opinion awarded damages for lost wages.
There is no basis in law for such an award.
4. There is no contractual basis for such an award.
5. There is no basis in the Lease for such an award.
6. The Court failed to apply properly the burden of proof required of Plaintiff.
7. The Court's finding of a breach of warranty of habitability is inconsistent with Pennsylvania law presented at trial and in Defendant's trial brief.
8. The Court applied a standard for the warranty of habitability that goes beyond existing Pennsylvania law.
9. The Court's Opinion appears to confuse the warranty of habitability with concepts related to marketability.
Nti III
111111E146 2012-07444-0039 F#1184916 Fee.10.00 11111 OPINION
Rcpt Z145730 7/17/2017 10:3905 AM David 0. Buell, County Prothonotary 39 10. The Court applied a higher standard for the warranty of habitability because the rental unit in question was higher priced than many other units in the market.
11. The warranty of habitability and the standards for habitability in a rental unit are not dependent on the rental rate.
12. The Court's Opinion would create separate standards of habitability between more expensive housing and affordable housing.
13. The Court's Opinion would result in discriminatory standards for the warranty of habitability.
14. The Court failed to apply the law regarding the accord and satisfaction entered into between the parties and introduced at trial.
15. The Court's findings were inconsistent with admissions made by Plaintiff during trial, including admissions regarding the accord and satisfaction and admissions regarding Plaintiff's claimed damages.
16. The Court refused to find the existence of an accord and satisfaction due to post -accord conduct by Plaintiff, including Plaintiff's failure to cash the check, even though the payment rendered the money unavailable to Defendant, thus constituting valid consideration.
17. The Court refused to find the existence of an accord and satisfaction because any such finding would prevent a tenant from pursuing warranty of habitability claims.
18. Contrary to such a holding, accord and satisfaction is available to any party seeking to settle any claim, including habitability claims.
19. The Court based its finding on the assumption that there was no genuine dispute that would justify withholding the security deposit, contrary to the disputed facts in this case.
20. Defendant's position at the time of the accord and satisfaction was that Plaintiff was not justified in breaking the lease, thus justifying the withholding of the security deposit and creating a legitimate dispute for the purpose of accord and satisfaction.
21. Accord and satisfaction is a viable alternative available to all parties to settle disputed issues, including disputed factual issues.
22. The Court's holding rendered such an alternative unavailable.
2 23. With regard to the Court's findings regarding breach of implied warranty of habitability, accord and satisfaction and damages, the Court's findings were: (a) based on insufficient evidence; (b) against the weight of the evidence; O contrary to the law.
24. The Court's findings with regard to the existence of insects at the premises in question were against the Plaintiffs own evidence, which evidence revealed photographs only of one or two insects in any one photograph.
25. The Court's reliance upon testimony of Defendant's expert for the proposition that insects remained in the premises many days after the initial treatment is not supported by the expert's actual testimony.
26. Defendant's expert's repeat visits were for preventative maintenance and for treatment of the outside of the premises.
27. Defendant's expert contradicted Plaintiff as to the number of insects and the extent of any problem.
Statement of Facts and Procedural History
The parties entered into a written, short-term lease agreement on July 10, 2012.
The lease was envisioned to cover a very short, ninety day term, from July 16, 2012,
until October 15, 2012, for the upper level of a fully furnished house in what has been
stylized as an upscale housing arrangement. Appellee was to pay Appellant the sum of
$1,690.00 per month, in addition to a $900.00 security deposit, for the duration of the
lease. Appellee did in fact pay Appellant $1,690.00 in advance rent, the $900.00
security deposit, and an additional $112.66 in order to move in early.
Appellee, his wife and their young child arrived at the apartment on Friday, July
13, 2012, and unpacked their vehicle. Appellee was then required to immediately
depart for a business commitment in North Carolina. That evening, Appellee received a
phone call from his wife, informing him that the apartment was overrun with then -
3 unknown insects, later identified as millipedes. Appellee immediately abandoned the
business trip and returned from North Carolina that night. Appellee reported to Appellant
on Sunday, July 15, 2012, that the residence was infested with insects, that he was
concerned that the still -unknown insects posed a health hazard to his toddler, and that
he wished for Appellant to resolve the infestation as soon as possible.
On Monday, July 16, 2012, at approximately 6:00 A.M., Appellee informed
Appellant that he was moving his family out, and that he would not return until the insect
infestation ended. Appellee cited his concern that he and his wife killed at least one
hundred and thirty insects since Friday evening, and that the infestation did not seem to
be slowing down. Appellant assured Appellee that the matter would be resolved, and
dispatched an exterminator to treat the property that same day.
The exterminator treatments between July 16 and August 10, 2012, failed to cure
the problem. Appellee was told on more than one occasion that the problem was
resolved and Appellee inspected the property several times, finding insects to still be
present. In light of the ongoing insect infestation, and fears about exposing his toddler to
both the insects and the pesticides sprayed on the premises, on July 28, 2012, Appellee
signaled that he would not move back into the property. Appellee requested the return
of the advance rent and the security deposit, which Appellant refused. Eventually,
Appellant agreed to return Appellee's security deposit only, on the condition that
Appellee sign a release of liability. Appellee ultimately did sign the release, then
communicated his rejection of the document and did not cash the check for the security
deposit. Appellee brought an action before the magisterial district judge in order to
recover both the security deposit and the advance rent.
4 Appellee prevailed before the magisterial district judge and received a verdict in
the amount of $2,217.66, prompting Appellant to appeal that decision. A Board of
Arbitrators was appointed to hear the matter. They found for Appellee in the amount of
$3,811.24. Appellant appealed that decision to this court, and a de novo hearing was
held on November 03, 2016. By Order of Court dated November 30, 2016, this court
found in favor of Appellee in the amount of $3,677.66 plus costs and interests. That sum
encompassed $1,690.00 for the advance rent paid by Plaintiff, $900.00 for the security
deposit, $860.00 for Appellee's lost wages, $112.66 for Appellee's early move -in fees,
and $115.00 for Appellee's filing fees at the magisterial district judge level. Appellant
filed the instant motion for reconsideration on December 12, 2016, and oral arguments
were scheduled for March 15, 2017. Due to inclement weather the oral arguments were
rescheduled and held on March 28, 2017. Appellant's motion for reconsideration was
denied, leading to the instant appeal and prompting this Opinion pursuant to Pa. R.A.P.
1925(a).
Discussion
To begin, this court notes that Appellant presents twenty-seven enumerated
paragraphs and three sub -paragraphs containing errors complained of on appeal. As
stated by the Honorable Ruggero J. Aldisert of the United States Court of Appeals for
the Third Circuit:
When read an appellant's brief that contains ten or twelve I
points, a presumption arises that there is no merit to any of them. do not say that it is an irrebuttable presumption, but it I
is a presumption that reduces the effectiveness of appellate advocacy...1
Aldisert The Appellate Bar: Professional Competence and Professional Responsibility -A View From the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L. Rev. 445, 458 (1982).
5 Here, in light of the plethora of errors raised on appeal, this court will attempt to
consolidate the issues raised where possible. Where any of Appellant's issues have
been inadvertently missed, this court will rest on the record, such as it is in this case,
including the Opinion and Order of Court dated April 19, 2017. It should be noted that
no transcript of the proceedings was prepared in time for this opinion, due to Appellant's
failure to comply with the requirements of Pa. R.J.A. 4007.2
a. Breach of the implied warranty of habitability
At the core of Appellant's issues complained of on appeal is the contention that
Appellee failed to demonstrate a breach of the implied warranty of habitability. In order
to sustain an action for a breach of the implied warranty of habitability, a plaintiff must
prove that notice of the defective conditions was given to the defendant, that the
defendant had a reasonable opportunity to correct the defects, and that the defects
were not corrected. Fair v. Neqley, 257 Pa. Super. 50, 54-55, 390 A.2d 240 (Pa. Super.
1978). The defect must be of the kind and nature which would prevent the use of the
property for its intended purpose to provide fit habitation. Glickman Real Estate
Development v. Korf, 446 A.2d 300, 302 (Pa. Super. 1982).
Here, the residence in question was heavily infested with insects. Appellee and
his wife credibly testified regarding the size of the infestation, with Appellee and his wife
personally killing well in excess of one hundred insects without making a dent in the
swarm. Circumstantial evidence supported this conclusion; notably, within forty eight
2Notably, while Appellant did file Requests for Transcript with the Prothonotary's office on May 18, 2017 and June 12, 2017, Appellant failed to properly comply with the filing and service requirements of Pa. R.J.A. 4007(b), and failed to post a deposit pursuant to Pa. R.J.A. 4007(D)(1) or allege an economic hardship or that the court or county should be responsible for the transcript cost, pursuant to Pa. R.J.A. 4007(E1 or a. 6 hours of moving in Appellee cancelled his business activities in North Carolina and
drove back to Pennsylvania to help his family move out. Documentary evidence
submitted by Appellee proved that even after pest control treatments at the property,
and affe-r-Appellant's representatives meticulously cleaned and -inspected the residence
several times, insects were still present inside the residence.3 In short, Appellee left the
residence due to a heavy insect infestation. Even after weeks of pest control treatments,
and regular cleaning of the residence by Appellant, the infestation was not completely
resolved. Appellee's lease for the property was for only ninety days, meaning that
Appellant failed to correct the insect infestation after one-third of the lease period
passed.
Appellant also contends that this court erred by creating separate standards of
habitability between lower -income and higher -income rental housing, which would lead
to discriminatory standards for the warranty of habitability in the April 19, 2017, Opinion
and Order of Court. That contention is not borne out by the record in this case. Instead,
this court noted that the facts that this case presented were that the premises that
Appellee contracted for was not delivered in a habitable condition. That notation had no
impact on the ultimate conclusion that the apartment in question was infested with
insects and constituted a breach of the implied warranty of habitability.
Due to the facts determined after trial in this matter, this court properly concluded
that Appellant had notice of the insect infestation, had a reasonable opportunity to cure
the defect and was unable to cure the infestation within a reasonable time frame. The
insect infestation was such that Appellee was unable to utilize the property for its
intended purpose, human habitation. Appellant's argument that Appellee could have
3 See e.g. Plaintiff's Exhibits 3-10.
7 resided in the residence with his wife and toddler while it received exterminator
treatments was not persuasive to this court. This court especially concluded that
Appellee had reasonable concerns for the health and safety of his toddler by remaining
in the residence.
Further, this court did not find Appellant's argument persuasive that Appellee was
under some obligation to perform a detailed census of the insects present, or spend
time arranging for them to be photographed, rather than simply killing them and
disposing of them. Nor was it a compelling argument that the failure of Appellee to do so
should have been construed against him. Finally, Appellant's representative provided
testimony that an alternative residence would not be available for Appellee for at least
six weeks, or until roughly half of the lease period passed. In light of such, this court
properly found that the implied warranty of habitability was breached by Appellant and
that Appellee was entitled to recover damages.
b. Accord and satisfaction
Appellant's arguments regarding an accord and satisfaction were not compelling
to this court. As stated by the Supreme Court:
Our cases make clear that the burden was on the appellant to establish "accord and satisfaction." The same elements are necessary to show the existence, of an "accord and satisfaction" as to show the existence of any contract. There must be a "meeting of the minds." There must be consideration, which in the case of an accord and satisfaction, means that a reasonable dispute exists between the parties. As we explained in Law v. Mackie, 373 Pa. 212 at 221, 95 A.2d 656 (1953), citing Lucacher v. Kerson, 355 Pa. 79, 48 A.2d 857 (1946): "Where there is a dispute or disagreement between the debtor and creditor as to their respective rights, a payment tendered in full satisfaction of the other's claim operates as an accord and satisfaction if the payment is accepted and retained. On the other hand, in
8 the absence of such a controversy, the payment of a part of the amount due under a contract, even though accepted by the creditor as in full satisfaction of the debt, does not work a discharge of the entire indebtedness, for the reason that there is no consideration for the creditor's agreement that it should so oerate."
Brunswick Corp. v. Levin 442 Pa. 488, 491, 276 A.2d 532 (Pa. 1971) (internal citations
omitted in part, emphasis added).
In the instant case, this court found that Appellant failed to meet its burden to
establish an accord and satisfaction. First, there was not a reasonable dispute between
the parties. Appellee was not able to reside in the residence due to the heavy insect
infestation which Appellant was not able to cure within a reasonable amount of time, as
discussed above. Notably, the record reflects that Appellant had an extermination
treatment performed at the residence after it informed Appellee that the residence was
insect free.4 In order to create a dispute between the parties, Appellant argued that
Appellee breached the lease by vacating the residence. It would be patently
unreasonable for this court to accept Appellant's argument that Appellee breached the
lease, when the reason that Appellee left the residence was because the residence was
uninhabitable due to the insect infestation. To accept the Appellant's position, one
would have to find that after paying over $2,702.66 for what was described as an
upscale apartment for 90 days and having moved his family into the dwelling, the
Appellant was so unreasonable and arbitrary that he would abandon his business
activities, return home from North Carolina, undertake the incredible hassle of relocating
his family all because of some unfounded claim of insect infestation. As a matter of
fact, this Court found that explanation absurd. Because it would be unreasonable to
See, e.q., Defendant's Exhibit 2, at 3 (wherein exterminator services were invoiced for August 10, 2012), see also Plaintiff's Complaint at ¶37.
9 conclude that Appellee breached the lease, this court cannot find that there was a
reasonable dispute between the parties. Therefore, there cannot be an accord and
satisfaction in this case.
Second, it would-be unreasonabTe fc-- this court to accept Appellant's position
that there was some consideration that Appellant gave up in order for there to be a
meeting of the minds between the parties. Appellant's position for this argument is,
again, based on the unreasonable premise that Appellee breached the lease by leaving
an uninhabitable residence. Because the underlying dispute was inherently
unreasonable, Appellant's sole consideration was to offer to return a security deposit
that was already legally due and owing to Appellee. See Clg P.S. §250.512. Because the
security deposit was already due and owing to Appellee, Appellant gave up nothing in
consideration of an accord and satisfaction. Therefore, there was no accord and
satisfaction.
Finally, the payment offered by Appellant was not accepted and retained.
Appellee initially accepted the payment, then immediately rejected it, communicated
that rejection to Appellant and refused to cash Appellant's check. As such, this court
properly concluded that Appellant did not meet its burden to demonstrate the existence
of an accord and satisfaction, and should properly be affirmed on appeal.
c. Lost wages
On appeal, Appellant correctly contends that the $860.00 award for lost wages
and travel expenses was improper. At trial, counsel for Appellee agreed with Appellant's
objection that these damages were not properly available for consideration by this court
in this lawsuit. As such, the damages for lost wages and travel expenses should not
10 have been awarded. Therefore, this case should properly be remanded for a
modification of the damages awarded to Appellee by removing $860.00 from the
judgment entered against Appellant.
Conclusion
Appellee and Appellant contracted for the short-term rental of an apartment.
Upon moving into the apartment, Appellee discovered that it was infested with
millipedes and uninhabitable. After moving out, Appellant refused to return Appellee's
security deposit and rent, despite Appellee being unable to reside in the premises due
to the insect infestation. This court properly concluded that the insect infestation was of
a size and duration as to constitute a breach of the implied warranty of habitability, and
that the breach existed from day one of the lease. The record reflects that Appellee and
his wife killed in excess of one hundred insects over the course of two days without
diminishing the size and scope of the infestation, and the record reflects that the
premises was still receiving extermination treatments up to one month after Appellee's
scheduled move -in date. This court further concluded that there was no accord and
satisfaction present in this case, as there was no reasonable dispute between the
parties, no consideration offered on the part of Appellant, and no acceptance and
retention of the payment by Appellee. Finally, the amount of the damages awarded
should be modified to remove the improper inclusion of $860.00 in lost wages and travel
expenses for Appellee.
By the Court,
M. L. Ebert, Jr.,
11 ../uglas C. Lovelace, Jr., Esquire Attorney for Plaintiff
David J. Lanza, Esquire Attorney for Defendant