Housing Authority of Pittsburgh v. Fields

772 A.2d 104, 2001 Pa. Commw. LEXIS 182

• Court: Commonwealth Court of Pennsylvania
• Decided: March 28, 2001
• Status: Published

Opinions

McGINLEY, Judge.

The Housing Authority of the City of Pittsburgh (Authority) appeals from an order of the Court of Common Pleas of Allegheny County (trial court) that denied the Authority’s motion for removal of a non-suit.¹

On November 15, 1996, the Authority leased a unit located at 338 Elmore Square in the housing community known as Addison Terrace² to Marcella Fields (Fields). Section IB of the Lease stated that the premises were for the exclusive use by Fields and the household members she listed: Marcella Fields, mother, Herkley Fields, son born 12/30/66, Andre Fields (Andre), son born 7/10/75, and Shaquela Fields, granddaughter born 7/7/85. Fields was required to pay rent of $50 per month based upon one-third of the total income earned by all of the residents in the unit.

Paragraph 8(1) of the Lease provides: Tenant shall not engage in and shall prevent any Household Member or guest under the Tenant’s control from engaging in:

(1) Any drug related criminal activity, including but not limited to, the presence of an illegal controlled substance in the unit or adjacent to the premises. The physical presence of the controlled substance rather than actual ownership of the drugs shall constitute a material breach of this agreement and amounts to grounds for immediate lease termination in compliance with Pennsylvania law.

(2) Any criminal activity that threatens the health, safety, or right to peaceful enjoyment of HACP [Authority] property by other Tenant or employees of Management.

Paragraph 13 of the Lease, entitled “Default by Tenant” provides in pertinent part that a tenant shall be in default if:

(2) Tenant, Household Member or guest neglects or fails to perform any of the promises, terms, provisions or conditions contained in this Lease, especially as it relates to the tenant’s Obligations contained in paragraph 8 of this lease.

On March 14, 1998, Andre was arrested and charged with possession of a controlled substance and possession of a controlled substance with intent to deliver and resisting arrest. This activity occurred in the courtyard immediately in front of Fields’ unit. He was convicted on February 1,1999.

On May 8, 1998, the Authority hand-delivered a notice of termination to Fields. The notice stated that a serious violation of a material term of the Lease had occurred because a member of her household was involved in drug-related criminal activity in the immediate vicinity of her unit. When Fields failed to vacate the premises, the Authority initiated the present landlord-tenant action on June 5, 1998, with a district justice. On June 17, 1998, the district justice entered judgment in favor of Fields. The Authority appealed to the trial court. On September 17, 1998, a board of arbitrators entered an award of possession in favor of the Authority. Fields appealed this decision to the trial court.

On August 31, 1999, the trial court conducted a bench trial. Todd Waller (Waller), police officer for the Authority, testified regarding the arrest of Andre. Notes of Testimony, August 31,1999, (N.T.) at 7-10; Reproduced Record (R.R.) at 138a-142a. On cross-examination, Waller admitted that Fields was not present at the time of Andre’s arrest and was not arrested. N.T. at 14-16; R.R. at 146a-147a.

Harriet Waller-Jethroe (Waller-Jeth-roe), property manager for the Authority at Addison Terrace, testified that Fields initialed the paragraphs of the Lease addressing drug-related criminal activity and that the provisions were read to her aloud. N.T. at 20-21; R.R. at 152a-153a. Waller-Jethroe testified that Andre was a Household Member in Fields’ unit. She further testified that Fields paid $50.00 per month in rent which was of her actual income, which was also an indication that her sons had no income.

Richard Morris (Morris), project manager for the Authority, testified that he coordinated the activities of the Authority’s criminal activity review process. According to Morris, Authority police report each incident and arrest on Authority property. N.T. at 30; R.R. at 162a. Morris testified the criminal activity review panel (review panel) reviewed each case to determine whether to evict. Morris testified the review panel decided to evict Fields and her family to reduce drug activity and because of the large amount of cocaine in Andre’s possession. N.T. at 32-33; R.R. at 164a-165a.

At the conclusion of Morris’ testimony, Fields’ attorney moved for a non-suit on the basis that the Authority failed to shoulder its burden to prove that Fields engaged in a material breach of the Lease because the Authority did not establish that Fields had knowledge of her son’s activities or that she reasonably should have anticipated her son’s activities on March 14, 1998. The trial court granted the motion for a non-suit. The Authority moved for removal of the non-suit. The trial court denied the motion and reasoned:

In any event, it is undisputed that ‘control’ over the Household Member is an issue at some point. The Court’s conclusion that it is part of Plaintiffs [Authority] prima facie case is based on the fact that leases are contracts. The mere fact that the provision in question attempts to comply with the federal funding regulations regarding publie housing does not bring the lease outside the realm of contract law. Under well-settled contract law principles, the Plaintiff always has the burden of proving both the contract and the breach.

In the instant case, there is no contention that Mrs. Fields herself was anything other than a model tenant. There is no contention that she had any reason to suspect that her son would engage in illegal conduct. Furthermore, under the undisputed wording of the lease in question, there is no breach unless the person whose conduct is at issue, Mrs. Fields’ adult son, is shown to be ‘under the Tenant’s control.’ Under the law of Pennsylvania, adults are not returned to their parents’ control simply by living with them. Plaintiff [Authority] presented no other evidence to suggest that this adult son was different from all other adult children.

Plaintiff’s [Authority] sole basis for asserting a breach is that Mrs. Fields is the mother of an adult son, not shown to have been under her control, who engaged in drug-related activity while living in Mrs. Fields’ home which she rented from Plaintiff [Authority]. Plaintiff [Authority] could certainly evict or bar the adult son from Mrs. Fields’ home. However, in order to remove Mrs. Fields herself from the apartment, Plaintiff [Authority] must present a pri-ma facie case that there was a breach of the lease by Mrs. Fields. Since evidence of all the elements necessary to prove that she breached the lease was not presented, the Court properly entered a non-suit and properly refused to lift it for the same reason. (Emphasis in original).

Trial Court Opinion, March 30, 2000, at 2-3.

The Authority contends that it presented evidence from which a reasonable factfinder could infer that Andre was under the control of Fields and, in the alternative, that the Authority is not required to prove that a Household Member is “under the control” of the tenant.³

A non-suit may be entered only when a plaintiff is unable to recover under any view of the evidence and where every doubt is resolved against its entry and all inferences are drawn most favorably to the plaintiff. The trial court must give the plaintiff the benefit of all favorable testimony and all reasonable inferences drawn from that favorable testimony. Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52 (1997).

The Authority contends that it was not required to prove that Andre was under his mother’s control in order to evict Fields.⁴ The Authority asserts that under the Anti-Drug Abuse Act of 1988 and subsequent amendments, Congress amended the United States Housing Act of 1937 to state:

Each public housing agency shall utilize leases which ....

(5) provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such premises by other tenants or any drug related criminal activity on or near such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy. (Emphasis added).

42 U.S.C. § 1437d(i)(5).⁵

Further, the Department of Housing and Urban Development regulation on tenant obligations, 24 C.F.R. § 966.4(f)(12)(i)(B) provides:

To assure that the tenant, any member of the household, a guest, or another person under the tenant’s control, shall not engage in:....

(B) Any drug-related criminal activity on or near such premises. Any criminal activity in violation of the preceding sentence shall be cause for termination of tenancy, and for eviction from the unit.

The Authority also contends that the term “under the tenant’s control” in the Lease only refers to guests not household members and that if any household member engages in the prohibited activity it is grounds for eviction.

In Delaware County Housing Authority v. Bishop, 749 A.2d 997 (Pa.Cmwlth.2000), this Court addressed a similar issue. Barbara Bishop (Bishop) resided in the Upland Terrace Public Housing Development (Terrace) in Delaware County with her two adult sons, Nathaniel Bishop and Ralph Walters. Nathaniel, though listed on the lease, did not reside at his mother’s residence for some time until moving back on September 17, 1995, after a fight with his girlfriend. Five days later, Nathaniel robbed and raped a sixty-eight year old woman who also lived in the Terrace. Nathaniel was convicted of burglary, robbery, rape, unlawful restraint and theft by unlawful taking or disposition and was sentenced to serve a prison term of thirteen years and four months to thirty years. Bishop, 749 A.2d at 998-999. On October 5, 1995, as a result of the robbery and rape, the Upland Borough Police Department executed a search warrant of Bishop’s apartment. The search uncovered cocaine and marijuana which belonged to Ralph Walters, then thirty-two years old. Walters pleaded guilty to drug possession and was placed into the Accelerated Rehabilitative Disposition Program. As a result of the criminal activity of the two adult sons, the Delaware County Housing Authority (DCHA) initiated eviction proceedings against Bishop for violating a paragraph of her lease which stated that tenants were obliged not to engage in criminal activity including drug-related criminal activity on or near the public housing premises and to have the tenant’s guests, any family member or other person under the tenant’s control refrain from such activity. The DCHA filed a complaint with a district justice who ruled against Bishop. Bishop appealed. A panel of arbitrators of the Court of Common Pleas of Delaware County (common pleas court) entered an award for Bishop. The DCHA appealed to the common pleas court and filed an action in ejectment for possession of the premises. The common pleas court ruled in favor of Bishop and subsequently denied the DCHA’s motion for a new trial. The Delaware County court based its decision in part on the lack of any evidence that Bishop was in control of her adult sons or that she was aware of their criminal activity. Bishop, 749 A.2d at 999.

On appeal, this Court agreed that the provision of the lease limited eviction to situations where the tenant had control over the person committing the criminal activity. Bishop, 749 A.2d at 1000. This Court further determined based on the congressional intent in directing housing authorities to insert clauses in their leases that the term “under the Tenant’s control” modified both guests and members of the tenant’s household. Bishop, 749 A.2d at 1001-1002. This Court affirmed and held:

For the foregoing reasons, we refuse to hold a tenant strictly hable for unforeseeable criminal acts committed, without the tenant’s knowledge, by family members who are not under the tenant’s control. Here, because Bishop had no knowledge of her sons’ criminal conduct, because her sons were not under her control, and because Bishop reasonably could not have foreseen her sons’ criminal conduct, Bishop’s eviction would be contrary to Congress’ intent in enacting 42 U.S.C. § 1437dffi(5).

Bishop, 749 A.2d at 1002.

Recently in, Rucker v. Davis, 237 F.3d 1113 (9th Cir.2001), the Ninth U.S. Circuit Court of Appeals addressed this same issue. In Rucker, the Oakland Housing Authority commenced separate unlawful detainer actions in Alameda County Municipal Court against four tenants, Pearlie Rucker (Rucker), Willie Lee (Lee), Barbara Hill (Hill) and Herman Walker (Walker), and collectively, (the tenants) for separate violations of the lease provision that obligated the tenant to “assure that tenant, any member of the household, or another person under the tenant’s control, shall not engage in ... [a]ny drug-related criminal activity on or near the premises.... ” Rucker’s mentally disabled daughter who lived with her was found in possession of cocaine three blocks from the apartment. Rucker asserted that she regularly searched her daughter’s room for evidence of drug and alcohol use and had never found any such evidence. Lee, seventy-one, and Hill, sixty-three, each had grandsons living with them. The grandsons were caught smoking marijuana together in the apartment complex parking lot. Walker, a disabled seventy-five year old, required an in home caregiver. The caregiver was found with cocaine in Walker’s apartment. Rucker, 237 F.3d at 1115-18.

The tenants commenced an action in federal district court and alleged that 42 U.S.C. § 1437d(i)(6) did not authorize the eviction of innocent tenants. The district court granted the tenants a preliminary injunction and enjoined the actions in state court and the enforcement of HUD’s regulation and the corresponding provision of the lease against innocent tenants. On appeal, a panel of the Ninth Circuit of the U.S. Court of Appeals reversed. The Ninth Circuit granted review en banc. Rucker, 237 F.3d at 1117-18.

The Ninth Circuit affirmed the district court’s order that granted the preliminary injunction. The Ninth Circuit reviewed the language of 42 U.S.C. § 1437d©(6) and concluded:

Section 1437d©(6) is not a picture of clarity and may be subject to varying interpretations. When read in conjunction with the remainder of § 1437d(i) and other provisions enacted at the same time, however, it appears that Congress did not intend subsection (6) to apply to the eviction of innocent tenants. Any doubts that persist about Congress’s intentions, however, are firmly resolved by the legislative history and the principles of statutory construction. ...

Rucker, 237 F.3d at 1123.

The Authority contends that it presented evidence from which a factfinder could reasonably infer that Andre was under the control of Fields. However, the evidence presented only established that Andre was listed on the Lease, that he was Fields’ son, and arguably, that he had no income. After giving the Authority the benefit of the doubt on all evidence, the trial court correctly concluded that the Authority did not shoulder its burden.

Accordingly, we affirm.

ORDER

AND NOW, this 28th day of March, 2001, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is affirmed.

1 . Currently, there is a vacancy among the commissioned judges of this Court. Consequently, an even number of commissioned judges voted on this en banc opinion, and a tie vote resulted. Therefore, this opinion is filed as circulated pursuant to Section 256(b) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa.Code § 67.29(b).

2 . Addison Terrace consists of 800 units which serve as the residences of approximately 680 families and senior citizens.

3 .In reviewing a trial court’s refusal to remove a non-suit, this Court must assess the evidence in the light most favorable to the appellants, resolving every conflict in their favor, and giving them the benefit of every reasonable inference. Marlowe v. Lehigh Township, 64 Pa.Cmwlth. 587, 441 A.2d 497 (1982).

4 . We have foregone the sequence of the Authority’s arguments.

5 . In 1998, 42 U.S.C. § 1437d(Z)(5) was unchanged but was redesignated as 42 U.S.C. § 1437d(Z)(6).