J-A14033-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MARILOU WRIGHT, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : KEVIN MULLEN, : : Appellee : No. 1430 MDA 2014
Appeal from the Judgment Entered October 2, 2014, in the Court of Common Pleas of Centre County, Civil Division at No(s): 2013-4059
BEFORE: BENDER, P.J.E., JENKINS and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 17, 2015
Marilou Wright (Wright) appeals from the judgment entered on
October 2, 2014, against her and in favor of Kevin Mullen (Mullen). 1 We
affirm.
In May of 2010, Wright entered into a residential lease with Mullen.
The tenancy was uneventful until June 25, 2013, when Mullen discovered
that Wright’s pets had caused substantial damage to the floors of the rental
property. Subsequent to this discovery, and despite multiple attempts to
remedy the damage, the relationship between the parties deteriorated.
1 We note that Wright purported to appeal from the order denying her post- trial motion, which does not constitute an appealable order. Fanning v. Davne, 795 A.2d 388, 391 (Pa. Super. 2002) (providing appeal to Superior Court can only lie from judgments entered subsequent to trial court’s disposition of any post-verdict motions, not from the order denying post-trial motions). Accordingly, at the direction of this Court, the prothonotary entered judgment in this matter on October 2, 2014. We have corrected the caption accordingly.
* Retired Senior Judge assigned to the Superior Court. J-A14033-15
Ultimately, Wright moved out of the rental property on August 31, 2013,
nine months prior to the expiration of the lease. Mullen was able to repair
and re-lease the property on January 1, 2014, but demanded compensation
from Wright, as well as payment of rent, under the terms of the lease,
through May 31, 2014.
On October 17, 2013, Wright filed a declaratory judgment action
asking the court to declare, inter alia, “the respective rights and
responsibilities of the parties” under the lease. Action for Declaratory
Judgment, 10/17/2013, at 8. Mullen filed an answer and new matter with
counterclaim on February 4, 2014.
On May 29, 2014, after a three day bench trial, the trial court decided
in favor of Mullen and awarded a net of $11,974.11 in damages. The trial
court denied Wright’s post-trial motion. This appeal followed. Both Wright
and the trial court complied with the requirements of Pa.R.A.P. 1925.
Wright raises the following four issues for our review.
A. Did the [t]rial [c]ourt err in entering judgment in favor of [Mullen] and against [Wright] for rent, late fees and utilities by ignoring substantial evidence presented by [Wright]: (1) that [Mullen] breached the covenant of quiet enjoyment owed to [Wright]; (2) that [Wright] surrendered the premises on August 31, 2013 and [Mullen] accepted said surrender by removing the keys from the premises that day, canceling the fuel oil to the premises, and listing the property for lease on Craig’s List, or alternatively that [Mullen] repudiated the lease; and (3) that [Mullen] breached the lease and violated The Landlord and Tenant Act of 1951 by charging [Wright] an illegal security deposit under duress?
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B. Did the [t]rial [c]ourt err in entering judgment in favor of [Mullen] and against [Wright] for damages to the leased premises by ignoring substantial evidence establishing that the lease which was drafted by [Mullen] did not include a default/remedies provision authorizing [Mullen] to claim the damages which said court awarded to [Mullen] in its verdict?
C. Did the [t]rial [c]ourt err in entering as part of its gross damage award against [Wright] (before credits) the sum of $12,446.83, representing one-half of the Mammoth Restoration estimate given substantial evidence which established that: (1) [Mullen] has never paid Mammoth any money for any restoration work; (2) the Mammoth estimate was approximately three times as high as the Home Depot estimate that [Mullen] had originally asked [Wright] to pay; and (3) [Mullen] performed flooring repairs prior to re-leasing the premises on January 15, 2014 which were similar to the flooring repairs commissioned by [Wright] in August of 2013 for which [Wright] only paid Celestino Remodeling the sum of $905.00?
D. Did the [t]rial [c]ourt err by failing to award [Wright] any damages other than a credit for the two security deposits in light of substantial evidence presented by [Wright] establishing that: (1) [Mullen] charged [Wright] an illegal security deposit of $1,500.00, (2) [Mullen] did not appropriately sequester the original security deposit as required by The Landlord and Tenant Act of 1951, and (3) [Mullen] did not properly account for either security deposit or related interest within thirty days of surrender and acceptance as required by said Act?
Wright’s Brief at 3-4 (answers omitted).
Our standard of review in a non-jury trial is well established:
We must determine whether the findings of the trial court are supported by competent evidence and whether the trial judge committed error in the application of law. Additionally, findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed absent error of law or abuse of discretion.
Davis ex rel. Davis v. Government Employees Insurance Company,
775 A.2d 871, 873 (Pa. Super. 2001) (quotations omitted).
-3- J-A14033-15
Additionally, we are mindful that “leases are in the nature of contracts
and are thus controlled by principles of contract law, including the well
settled rules of interpretation and construction.” Cusamano v. Anthony M.
DiLucia, Inc., 421 A.2d 1120, 1122 (Pa. Super. 1980). “Interpretation of a
contract, in this case a lease, poses a question of law.” Charles D. Stein
Revocable Trust v. General Felt Industries, Inc., 749 A.2d 978, 980
(Pa. Super. 2000). “Our standard of review over questions of law is de novo
and to the extent necessary, the scope of our review is plenary as this court
may review the entire record in making its decision.” Kripp v. Kripp, 849
A.2d 1159, 1164 n. 5 (Pa. 2004).
Following our review of the certified record, the parties’ briefs, and the
relevant law, we conclude that the opinion of the Honorable Bradley P.
Lunsford states findings of fact that are supported by the record, evidences
no abuse of discretion, and thoroughly and correctly addresses and disposes
of Wright’s issues and supporting arguments. Accordingly, we adopt the trial
court’s opinion, filed on October 31, 2014, as our own, and affirm the
disposition of Wright’s issues on the basis of that opinion. The parties shall
attach a copy of the trial court’s October 31, 2014 opinion in the event of
further proceedings.
Judgment affirmed.
-4- J-A14033-15
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/17/2015
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IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CIVIL DIVISION
MARILOU WRIGHT Plaintiff
vs. No. 2013-4059
KEVIN MULLEN Defendant
Attorney for Plaintiff: David D. Engle, Esquire. Attorney for Defendant: Andrew Rehmeyer, Esquire.
OPINION REGARDING MATTERS COMPLAINED OF ON APPEAL
LUNSFORD, J.
Presently before the court is Marilou Wright's (hereinafter "Plaintiff') appeal of a
decision rendered by this court on May 29, 2014.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2010 the Plaintiff entered into a residential lease with Kevin Mullen (hereinafter ' .
"Defendant"). The lease contained the following relevant provisions: I ·,
' . 4. Tenant will tell owner of all concerns and damages immediately.· ·· ·1
Tenant will keep house in a safe and sanitary condition. : .'. : :: ·. 5. Pets require owner's approval. :. .' -.-~- 6. Tenant allows owner to enter property for including, but not ~ · ·· : limited to, repairs and showing property to future tenants. Owner ~~ will normally give tenant advance notice by email when possible.
The Defendant agreed to allow the Plaintiff to keep her pets on the property. Plaintiff's
pets included four cats and one dog. The Plaintiff continuously lived on the property from June
201 O through August 2013. The Plaintiff signed a lease to continue living on the property from
June 1, 2013 through May 31, 2014. The Defendant did not enter or see the inside of the house
rented to the Plaintiff again until June 25, 2013.
APPENDIXD
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On June 25, 2013, the Defendant was on the premises to fix an electrical outlet on the
porch. Finding that the outlet was not working, the Defendant opened the door to enter the
property and check the breaker. Upon opening the door, Defendant could see that the house was
in disarray and he could smell animal excrement emanating from it. The Defendant could also
see the floors were damaged. The Defendant then called the Plaintiff and requested that she meet
him at the property to discuss the problem. The two parties had a discussion, which lasted
approximately fifty minutes, on what needed to be done to get the house into habitable
conditions. The Plaintiff agreed to clean the place. Sometime in July 2013, the Plaintiff paid the
Defendant $1,500.00
The Plaintiff eventually hired a contractor to refinish the damaged floors. The Defendant
found out about this a few days after work on the floors began. The Defendant then asked the
contractor to stop work and vacate the property. The Defendant wanted to decide how to fix the
damaged floors and get his own estimate. From June 25, 2013 through August 31, 2013, the two
parties' relationship deteriorated. The Plaintiff notified the Defendant on her intentions to break
the lease and move out. The Defendant advised that Plaintiff would still owe him rent for the
remainder of the lease. After August 31, 2013 the Plaintiff was no longer living on the
Defendant's property. After the Plaintiff had moved out, the Defendant obtained an estimate
from Mammoth Restoration for new flooring and eliminating the pet odor in the apartment. The
estimate was for a little over $25,000.00 and included new flooring as well as cleaning out the air
ducts where it appeared the cats had urinated and vomited. The Defendant did not retain
Mammoth Restoration.
The Defendant made enough repairs as necessary to the house to be able to rent it again.
He found a new tenant and entered into a lease that began on January 1, 2014. He offered the
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lease to the new tenant for $100.00 less than his lease with the Plaintiff because of the condition
of the property. The Defendant still wishes to eliminate the odor in the house and have new
floors installed by Mammoth Restoration.
After a three day bench trial this court decided in favor of the Defendant and awarded
$11,974.11 in damages, accounted as follows: $1,250.00 for September rent; $90.00 for late fees;
$81.38 for September utilities/electric; $50.00 for water, garbage, recycling, and sewage;
$200.00 for cleaning; $12,446.83 for one half of all restoration repairs; $545.90 for duct
cleaning; $60.00 for replacing window blinds; $2,750.00 credited for "security deposits." The
Plaintiff appeals this decision.
DISCUSSION
Four issues are raised with regard to the Plaintiff's appeal.
1. The Plaintiff contends that this court erred in entering judgment in favor of the Defendant for rent and late fees because substantial evidence was ignored regarding the Plaintiff's right to quiet enjoyment, surrender of the premises, and the Defendant charging an illegal security deposit. 2. The Plaintiff contends that this court erred in entering judgment in favor of the Defendant for rent and late fees because the lease drafted by Defendant did not include a default provision authorizing the Defendant to claim the damages. 3. The Plaintiff contends that this court erred in entering judgment in favor of the Defendant for fees associated with Mammoth Restoration. 4. The Plaintiff contends that this court erred by not awarding the Plaintiff damages and only credited her security deposits towards the Defendant's damages.
I. Quiet Enjoyment/Surrender/Illegal Security Deposit
The Plaintiff contends that this court erred-in entering judgment in favor of the Defendant
for rent and late fees because it ignored evidence presented by the Plaintiff, which included proof
that the Defendant had breached the covenant of quiet enjoyment, proof that the Plaintiff
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surrendered the premises, and proof that the Defendant breached the lease and violated
Pennsylvania law.
First, the Plaintiff claims that there was substantial evidence presented that the Defendant
had breached the covenant of quiet enjoyment owed to the tenant However, there was no
evidence of this presented to the court. The Plaintiff claimed that the Defendant had entered her
property on multiple occasions and had testified under oath about specific days in particular.
However, the Defendant presented e-mail correspondences between the parti(~~ where he
specifically asked when to meet with the Plaintiff at the property on those particular days, as well
as other e-mails notifying the Plaintiff he would be on the property on other days. There is an
implied covenant of quiet enjoyment in every lease of real property. Branish v. NHP. Property
Mgmt. Inc., 694 A.2d 1106, 1107 (Pa. Super. 1997); Lichterfels v. Bridgeview Coal Co., 531
A.2d 22, 25 (Pa. Super. 1987). However, implied covenants are only to be applied where there
are no contractual terms in the lease that contradict them. See John B. Conomos, Inc. v. Sun Co.,
Inc. (R&M), 831 A.2d 696, 706 (Pa. Super. 2003) (the court states that unequivocal contract
terms hold a superior position to any terms implied by the courts); Jacobs v. CNG Transmission
C01p., 772 A.2d 445 (Pa 2001).
The Plaintiff signed a lease with the Defendant reserving to the Defendant the right to
enter the property for repairs where he wHI give advance notice when possible. Every instance
presented to the court of the Defendant entering the property had to do with repairs.
Additionally, because Plaintiffwas the primary cause for the damage to the apartment, she
cannot claim constructive eviction by the Defendant's actions. See Versatile Metals. Inc. v.
Union Corp., 693 F. Supp. 1563, 1569 (E.D. Pa. 1988) (applying Pennsylvania law). Because of
the lack of evidence presented that the Defendant breached the Plaintiffs right to quiet
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enjoyment, the Plaintiffs agreement to a decreased right to quiet enjoyment, and the Plaintiff
being the cause of the damage to the property, this court held that the Defendant did not breach
the Plaintiff's right to quiet enjoyment.
Next, the Plaintiff claims that there was substantial evidence presented that the Plaintiff
surrendered the premises and the Defendant accepted that surrender by removing the keys from
the premises that day, canceling the fuel oil to the premises, and listing the property for lease on
www.craigslist.com. Whether a land lord accepts a tenant's surrender of a premise is based on a
determination of the landlord's intent. Ona! v. BP Amoco Corp., 275 F. Supp. 2d 650 (E.D. Pa.
2003),judgment affirmed 134 Fed. Appx. 515 (Jd Cir. 2005) (applying Pennsylvania law). The
burden is on the tenant to show by clear and convincing evidence that the landlord's actions
constitute acceptance of surrender. Stonehedge Square Ltd. Partnership v. Movie Merchants,
Inc., 685 A.2d 1019 (Pa. Super, 1996). This can be done by showing the landlord's actions were
adverse to reoccupation of the property by the tenant and to a renewal of the relations created by
the lease. Ona/ v. BP Amoco Corp., 275 F. Supp. 2d 650.
While the Plaintiff was willing to surrender the property, the Defendant was not willing
to accept her surrender. The Defendant specifically told the Defendant through e-mail that he
was not accepting her surrender and expected her to pay through the entire term of the lease,
even if she vacated the premises. The Defendant's act of accepting the keys the Plaintiff left at
the property is not clear and convincing evidence that the Defendant accepted the surrender,
especially with his unequivocal statement to the Plaintiff that he was not accepting the surrender.
The Defendant's actions are more akin to that of protecting of the property from third parties,
than as a dominion of control contrary to the Plaintiffs interest in the :property. See Boesch v.
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Ericsson, 9 Pa. D. & C. 4th 20, 1990 WL 323045 (C.P. 1990) (Landlord changing properties
locks after the premise was burglarized not considered an acceptance of surrender).
Additionally, the Defendant's actions of canceling the fuel to the premises and listing the
property on www.craigslist.com were not adverse to the reoccupation of the property. The act of
canceling the fuel was not an act adverse to reoccupation of the property because if the Plaintiff
did decide to move back into the property the fuel could be turned back on. The Defendant had a
duty to mitigate damages, and his cancelling of the fuel was of benefit to the Plaintiff because if
he had not cancelled it she would have been Hable for its costs. Further, the advertising of the
apartment on craigslist was not an acceptance of the Plaintiff's surrender. The advertisement was
only online for a short amount of time. The Defendant took the posting down and waited a month
to see if the Plaintiff would re-enter the premise. When he was satisfied she would not re-enter,
he decided he should enter into a new lease to mitigate damages. It was October when the
Defendant decided to do a quick fix of the floor and enter into a new lease as soon as possible. It
is at this point that this court found that the Defendant accepted the Plaintiffs surrender of the
property. Based on the Defendant's express statement that he did not accept the Plaintiff's
surrender at that time and the Defendant not taking any actions until it was clear the Plaintiff was
not reentering the premises in October, this court assessed .the Plaintiff the full cost of the
September rent and utilities.
Finally, the Plaintiff alleges that there was substantial evidence presented that the
Defendant breached the lease and violated the Pennsylvania Landlord and Tenant Act by
charging the Plaintiff an illegal security deposit. A landlord cannot require a sum in excess of
two months' rent to be deposited in escrow for the payment of damages during the first year of
any lease and one month's rent in subsequent years. 68 P.S. § 250.51 l(a)-(c). Plaintiff paid one
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month's rent in a security deposit at the beginning of the lease term in 2010. She paid no security
deposit in 2011 or 2012. Both parties agreed that the Plaintiff gave the Defendant $1,500.00 in
July, 2013. On the first day of the bench trial, Plaintiff stated that she was seeking to have her
"security deposit returned plus the additional fifteen hundred dollars» which she claims she felt
pressured to give Defendant. Tr. 3/27/14 at 14. This court did award Plaintiff credit for her
security deposit and the additional $1,500.00. Although Plaintiff claims she was pressured to
give Defendant the additional $1,500.00, she sent him an e-mail on July 25, 2013 indicating that
she would be "happy" to give him "another month's deposit" to "evidence her commitment to
clean up the property." Tr. 5/29/14 at 18¥ 19. This court notes that $1,500. 00 amounts to $250. 00
more than one month's rent. Although Plaintiff may have felt some pressure to give the money to
Defendant, in large part, that was because she had allowed the property to fall into a very
unsanitary condition as evidenced by her acknowledgment in the same e-mail wherein she
apologized-for allowing the "house to get in disarray." It was clear the $1,500.00 was provided
because of the condition of the property: the mess which Defendant described as "boarding," the
offensive pet odors, and the damage to the oak flooring, in an attempt to ensure good faith in
moving forward to clean up the property and to avoid the Defendant initiating an eviction action.
Because this court awarded Plaintiff a credit for her $1,250.00 security deposit and the additional
$1,500.00 paid to Defendan1 in July 2013, this court contends there was no error.
fl. Default Provision Authorizing Damages
The Plaintiff contends that this court erred in entering judgment in favor of the Defendant
for rent and late fees because it ignored evidence presented by the Plaintiff that the Defendant
did not include a default provision authorizing the Defendant to claim damages which this court
awarded in its verdict. While there was no provision expressly defining what the Plaintiff would
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have to pay for if the property were damaged, this court awarded damages based on real property
and contract principles.
A landlord may commence an action for injuries to a leased property if actions were
taken that affect his reversionary interest. A tenant is liable for damages caused by malicious,
abnormal, or unusual use. Pugh v. Holmes, 384 A.2d 1234 (Pa. Super. 1978) (citing Marini v.
Ireland, 265 A.2d 526 (N.J. 1970). Additionally, the injury must be actual permanent harm that
affects the value of the landlord's reversionary interest. Deleone v. Azad, Inc., 52 Pa. D. & C. 2d
727, 1971 WL 14207 (C.P. 1971). The Plaintiff owned four cats and one dog, and allowed them
to urinate and vomit throughout the property, not just in litter boxes. Cat urine is notorious for its
noxious odor which is very hard to eliminate as well for as being a health risk. This court found
that the Plaintiff allowing her cats to behave this way and not providing more sanitary conditions
was an unusual use of the property. The cat urine caused actual permanent harm on the
Defendant's reversion as demonstrated by him having to charge less money to get another tenant
to lease the premises. For those reasons this court found that the Plaintiff was liable to the
Defendant for the restoration of the floors, cleaning, duct cleaning, and the replacement of
window blinds even though there was no default provision authorizing the damages.
The Plaintiff and the Defendant entered into a contract when they signed the residential
lease starting on June 1, 2013. Because this court did not find a breach of any covenants on the
Defendant's part, the Plaintiff was obligated to pay monthly rent, utilities, and late fees as
stipulated by the contract. The Defendant reasonably began to mitigate his damages in October.
Therefore, this court found that the Plaintiff was liable to the Defendant for September rent,
utilities, and late fees,
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lll. Damages for Mammoth Restoration Estimate
The Plaintiff contends this court erred in entering judgment in favor of Defendant for fees
associated with Mammoth Restoration. Specifically the Plaintiff claims damages should not be
awarded for this because the Defendant never paid to Mammoth Restoration, no work was done
by Mammoth Restoration, the estimate was higher than a previous Home Depot estimate
furnished, and the Defendant performed flooring repairs similar to the one Plaintiff performed
previously and only paid $905.00.
The Plaintiff should be charged for half of the Mammoth Restoration estimate. A
Mammoth Restoration employee, admitted as an expert, testified to what he believed the
Defendant would have to pay to completely eliminate the cat urine odor from the house as well
as fix the floors. The Plaintiff provided no expert testimony to dispute the Mammoth Restoration
estimate. While the Plaintiff provided some estimates, they were only estimates for how much it
would cost to refinish the floors. One of the Plaintiffs estimates included the Defendant's initial
estimates to just refinish the floors with Home Depot. Subsequently, the Defendant decided that
the cat urine odor needed to be eliminated completely, which required replacing the floors. The
other estimate the Plaintiff provided was one for $905.00 that she paid to have the floors
refinished. However, the Mammoth Restoration estimate was for completely new floors as well
as for a chemical treatment of the property to eliminate the cat urine odor. Also, the Plaintiff's
estimate of $905.00 for the refinished floors is misleading. That money was only for a partially
completed project before the Defendant decided he wanted to pick the company that would redo
the floors. The Defendant asserts that the actual cost of refinishing the floors prior to re-leasing
the property cost considerably more than that. However, the Defendant is not claiming damages
for the temporary solution; he is claiming damages for a permanent solution for eliminating the
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problem. Additionally, this court is not giving the Defendant a windfall. The Defendant still
bears the cost of the other half of the Mammoth Restoration, this accounts for the depreciated
condition the floors were in prior to their damage--the oak flooring was original to the house. For
these reasons, th.is court found that the Defendant was entitled to damages for one half of the
Mammoth Restoration estimate.
IV. Damages awarded
The Plaintiff contends this court erred by failing to award the Plaintiff any damages other
than a credit for two security deposits in light of substantial evidence presented establishing that
the Defendant charged the Plaintiff an illegal security deposit of $1,500.00, the Defendant did
not appropriately sequester the original security deposit as required by the Pennsylvania
Landlord and Tenant Act, and the Defendant did not properly account for either security deposit
within thirty days of surrender and acceptance es required by the Pennsylvania Landlord and
Tenant Act.
With respect to the Plaintiff's first claim that of an illegal security deposit of $1 ,500.00
this court addressed this issue above.
With respect to the Plaintiffs second claim that the Defendant did not properly sequester
the original security deposit as required by the Pennsylvania Landlord Tenant Act, this court
finds the claim meritless on appeal. This claim was not addressed in the Plaintiff's original
complaint. Therefore, it would not be proper to determine this issue on appeal. Finally, the
Plaintiff alleges that the Defendant did not properly account for either security deposit within the
thirty days of surrender. However, no evidence was provided that the Defendant did not account
for this money. Therefore, this court found that the money the Plaintiff had already paid the
Defendant should be credited towards the final judgment.
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Therefore, this Court contends that it did not commit and error oflaw or abuse its
discretion in entering judgment in favor of the Defendant and against the Plaintiff.
Date: JO f 3 I J J t/
Bradley P. Lunsford, Judge
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