J-S13013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARY L. RISCH, JR., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GARY L. RISCH, SR.,
Appellee
GARY L. RISCH, SR.,
Appellee
v.
GARY L. RISCH, JR.,
Appellant No. 998 WDA 2014
Appeal from the Judgments entered August 6 and 7, 2014
In the Court of Common Pleas of Butler County
Civil Division at No(s):
No. AD 13-10219
No. AD 13-10402
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 17, 2015
Gary L. Risch, Jr. (Appellant) appeals from the judgments entered on
August 6 and 7, 2014, following a non-jury trial and the denial of his post-
trial motions. We affirm.
We adopt the following statement of facts, extracted from the trial
court’s findings:
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Gary L. Risch, Sr. (Appellee) and his father owned property located at
119 South Pike Road, Sarver, Pennsylvania (the Property). In 1999, with
the consent of Appellee and his father, Appellant began to operate a
landscaping business at the Property, known as Sarver Landscaping Supply.
Appellant and Appellee owned Sarver Landscaping Supply as general
partners. However, Appellee did not manage, operate or receive profits
from the partnership. Rather, Appellee provided financial support, real
estate for the business location, and several items for use in the business
operations.
Appellee acquired concrete barriers from a friend to arrange as bins in
which to store landscape product. Additional concrete was poured to form a
floor for the bins to prevent ground debris from mixing with the product.
The poured concrete adhered to the barriers such that their removal would
damage either the barriers or the Property.
Appellee’s father loaned Appellee and Appellant money to purchase a
Brechbuler truck scale for use in the business. Appellee and his father
intended the truck scale to increase the value of the Property. The truck
scale was bolted to a concrete slab; concrete ramps were constructed so
that trucks could access the scale; and electrical wiring was attached to the
scale and run through buried conduit into the business office.
Appellee acquired a mobile trailer from a friend. Once moved to the
Property, the trailer’s wheels, axles, and hitch were removed, and it was
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lowered onto concrete blocks. The trailer was used as an office for the
landscaping business; however, Appellee acquired the trailer to increase the
value of the Property.
In 2003, Sarver Landscaping Supply became a sole proprietorship,
owned and operated by Appellant. Appellant continued to operate the
business until December 2012.
From 1999 until April 2011, Appellee did not require Appellant to pay
rent for his use of the Property. However, in April 2011, Appellant and
Appellee entered into a lease agreement (the Lease). The period of the
Lease extended from April 1, 2011, to January 1, 2012, with a holdover
provision extending the period of the Lease on a month-to-month basis.
Appellant agreed to make monthly rental payments of $600. Other relevant
provisions of the Lease included: (1) a 5% late charge imposed on
delinquent rent; (2) an obligation to surrender possession of all fixtures and
furnishings connected with the Property; and (3) the prohibition of oral
modifications to its terms.
Appellant paid rent from April until October 2011. In December 2012,
Appellee posted an eviction notice on the office located on the Property,
whereupon Appellant ceased using the Property. Thereafter, Appellant
attempted to retrieve the concrete barriers and the truck scale, but Appellee
telephoned the police, who escorted Appellant from the Property. See Trial
Court Decision at 2-8.
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Litigation commenced in 2013. Appellant filed a complaint at docket
No. AD 13-10219, asserting claims in replevin, conversion, breach of
contract, and unjust enrichment. In a parallel action, Appellee filed a
complaint at docket No. AD 13-10402, seeking rent payments. In March
2013, these actions were consolidated, and a bench trial commenced.
Following trial, the Honorable Marilyn Horan issued a decision, finding that
the concrete barriers, the truck scale, and the trailer are the property of
Appellee. Moreover, Judge Horan found Appellant owed $8,190 in rent and
late fees to Appellee.1
Appellant filed post-trial motions, which were denied by the trial court.
Judgments were entered. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement.2 The trial court issued an opinion,
____________________________________________
1
Also at issue before the trial court at docket No. AD 13-10219, but
irrelevant to this appeal, were a wooden shed located on the Property and
several, additional items of personal property located at a garage owned by
Appellee. Judge Horan awarded possession of these items to Appellant.
2
On March 10, 2014, the trial court granted the parties’ joint motion to
consolidate. However, following trial and the resolution of Appellant’s post-
trial motions, the court entered three judgments, disposing of different
portions of the two, consolidated dockets. At No. AD 13-10219, the court
entered judgments on August 6, 2014 (awarding possession of the wooden
shed and several additional items to Appellant), and August 7, 2014
(awarding possession of the concrete barriers, truck scale, and trailer to
Appellee). At No. AD-10402, the court entered judgment on August 6, 2014
(awarding rent and late fees to Appellee). Appellant prematurely filed two
notices of appeal (one for each docket) on June 24, 2014, following the
denial of his post-trial motions. See Harvey v. Rouse Chamberlin, Ltd.,
901 A.2d 523, 525 n.1 (Pa. Super. 2006) (noting that orders denying post-
(Footnote Continued Next Page)
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incorporating the findings of fact, analysis, and conclusions of law set forth
in its decision.
On appeal, Appellant contends that the trial court abused its discretion
and or erred as a matter of law in (1) finding that there was not a waiver of
the Lease’s prohibition of oral modifications to its terms, and thus, holding
him liable for delinquent rent; (2) concluding that the concrete barriers,
truck scale, and trailer constitute fixtures; (3) relying on Appellee’s
intentions concerning the permanence of the truck scale and trailer; and (4)
failing to classify the concrete barriers, truck scale, and trailer as trade
fixtures. See Appellant’s Brief at 7-9.3
In addressing these issues, our review is limited to
a determination of whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in the application of law. 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
on appeal absent error of law or abuse of discretion. When this
Court reviews the findings of the trial judge, the evidence is
viewed in the light most favorable to the victorious party below
and all evidence and proper inferences favorable to that party
_______________________
(Footnote Continued)
trial motion are not appealable). Nevertheless, as judgments were entered
subsequently, we may address the appeals. Id. This Court only assigned
one docket number to the appeals.
3
Appellant also suggests that the trial court’s conclusion that the
aforementioned items are fixtures is against the weight of the evidence. Id.
at 8. Appellant did not raise a weight of the evidence claim in his post-trial
motion. Accordingly, we deem it waived. See Phillips v. Lock, 86 A.3d
906, 918-19 (Pa. Super. 2014) (citing In re Estate of Smaling, 80 A.3d
485, 490-91 (Pa. Super. 2013) (en banc)).
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must be taken as true and unfavorable inferences rejected. The
[trial] court’s findings are especially binding on appeal, where
they are based upon the credibility of the witnesses, unless it
appears that the court abused its discretion or that the court’s
findings lack evidentiary support or that the court capriciously
disbelieved the evidence. Conclusions of law, however, are not
binding on an appellate court, whose duty it is to determine
whether there was a proper application of law to fact by the
[trial] court. With regard to such matters, our scope of review is
plenary as it is with any review of questions of law.
Piston v. Hughes, 62 A.3d 440, 443 (Pa. Super. 2013) (quoting Shaffer v.
O’Toole, 964 A.2d 420, 422-23 (Pa. Super. 2009) (internal quotation
omitted)); see also Quimby v. Plumsteadville Family Practice, Inc.,
907 A.2d 1061, 1074 (Pa. 2006) (“A lower court's grant or denial of a
judgment n.o.v. will be disturbed only for an abuse of discretion or an error
of law.”) (citing Adamski v. Miller, 681 A.2d 171, 173 (Pa. 1996)).
Appellant first contends that the trial court erred in holding him liable
for delinquent rent. According to Appellant, in October 2011, he and
Appellee orally agreed that Appellant no longer needed to pay rent.
Appellant recognizes that the terms of the Lease prohibit oral modification of
its terms but suggests that the evidence compelled the court to recognize a
waiver of the prohibition. We disagree.
Appellant purports to raise a purely legal argument, citing in support
Universal Builders, Inc. v. Moon Motor Lodge, Inc., 244 A.2d 10, 15
(Pa. 1968) (“[I]t appears undisputed that [a] contract can be modified orally
although it provides that it can be modified only in writing.”); and Somerset
Cmty. Hosp. v. Mitchell, 685 A.2d 141, 146 (Pa. Super. 1996) (recognizing
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that parties’ conduct may establish the intent to waive a contract’s
requirement that amendments be made in writing). However, the basis of
the trial court’s decision rests firmly upon its factual finding that Appellee
never agreed to modify the terms of the Lease. See Trial Court Decision,
03/25/2014, at 13; see also Somerset Cmty. Hosp., 685 A.2d at 146 (“An
oral contract modifying a prior written contract, however, must be proved by
clear, precise and convincing evidence.”). The record supports this finding,
and thus, we will not disturb it on appeal. Piston, 62 A.3d at 443 (“The
[trial] court’s findings are especially binding on appeal, where they are
based upon the credibility of the witnesses[.]”).
Moreover, we do not find persuasive Appellant’s suggestion that
Appellee’s failure to demand rent negated his obligation to pay. See
Appellant’s Brief at 20-21. It is well settled that “[p]roof of failure to
rigorously enforce [contractual] rights” is not sufficient to establish a waiver
of such rights. Seinman v. La Charty Hotels Co., 50 A.2d 297, 298 (Pa.
1947) (“[M]ere indulgence without more is not a waiver[.]”).
In the second, third and fourth issues raised on appeal, Appellant
contends that he should be awarded possession of the concrete barriers,
truck scale, and trailer. Appellant advances two arguments. First, Appellant
asserts that these chattels are personal property, unattached or easily
removed from the Property. Moreover, according to Appellant, Appellee’s
intention to make either the truck scale or the trailer permanent fixtures of
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the Property is irrelevant. Second, Appellant argues in the alternative that,
to the extent the items may be fixtures, they are trade fixtures and, thus,
remain his personal property. Neither argument is persuasive.
Chattels used in connection with real estate can fall into one of
three categories. First, chattels that are not physically attached
to realty are always personalty. Second, chattels which are
annexed to realty in such a manner that they cannot be removed
without materially damaging either the realty or the chattels are
always fixtures. The third category consists of those chattels
that are physically connected to the real estate but can be
removed without material injury to either the land or the
chattels. When a chattel falls into the third category, its status
as a fixture or as personalty depends upon the objective intent
of the [owner] to permanently incorporate [the] chattel into real
property, as evidenced by the proven facts and surrounding
circumstances entered into evidence.
Lehmann v. Keller, 684 A.2d 618, 621 (Pa. Super. 1996) (internal
quotation marks and citations omitted). Regarding the third category of
chattels, the “permanence” required is not great.
Just because they have been and can be moved does not mean
the intention was not to make them permanent. It is sufficient if
the item is intended to remain where affixed until worn out, until
the purpose to which the realty is devoted is accomplished or
until the item is superseded by another item more suitable for
the purpose.
Custer v. Bedford Cty. Bd. Of Assessment & Revision of Taxes, 910
A.2d 113, 117 (Pa. Cmwlth. 2006) (quoting In re Sheetz, Inc., 657 A.2d
1011, 1014 (Pa. Cmwlth. 1995)).
Regarding the concrete barriers, the trial court found that (1) Appellee
acquired the barriers from a friend and (2) removing them would damage
the concrete floor of the bins. See Trial Court Decision at 3. Explaining its
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finding, the court specifically credited the testimony of Appellee. Id. at 11.
The record supports this finding, and we will not disturb it on appeal. See
Piston, 62 A.3d at 443. Based on this finding, the court determined that
the concrete barriers are fixtures, as “they cannot be removed without
materially damaging the [P]roperty.” Trial Court Decision at 11, 14. We
discern no legal error. See Lehmann, 684 A.2d at 621.
As for the truck scale, the trial court found that (1) it was attached to
a concrete slab on the Property with 8 bolts; (2) concrete ramps were
installed to access the scale; (3) electrical wiring was attached to the scale
and ran through buried conduit into the business office; and (4) at the time
of installation, Appellee intended the scale to increase the value of the
Property. See Trial Court Decision at 4. Explaining its findings, the court
specifically credited the testimony of Appellee. Id. at 11. The record
supports these findings, and we will not disturb them on appeal. See
Piston, 62 A.3d at 443.
Finally, the trial court found that (1) Appellee acquired the trailer to
improve the value of the Property; (2) the trailer’s wheels, axles, and hitch
were removed, and it was lowered onto blocks; (3) the trailer was used as
an office; and (4) the original axles and hitch are no longer available. See
Trial Court Decision at 4. Explaining its findings, the court specifically
credited the testimony of Appellee. Id. at 10. The record supports these
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findings, and we will not disturb them on appeal. See Piston, 62 A.3d at
443.
Based on these findings, the court determined that the truck scale and
trailer are fixtures. Trial Court Decision at 14. We agree. Appellant
suggests that the trial court erred as a matter of law when it considered
Appellee’s objective intent regarding the status of the truck scale and trailer.
See Appellant’s Brief at 17, 25-28. Clearly, though, Appellant is incorrect,
as these items fall into the third category of chattels. Accordingly, we
discern no legal error by the trial court. Lehmann, 684 A.2d at 621;
Custer, 910 A.2d at 117.
Turning briefly to Appellant’s alternative argument, the law regarding
trade fixtures is well settled in Pennsylvania:
[W]here a tenant attaches to real estate fixtures and equipment
necessary for the operation of its business, such items become
‘trade fixtures', and a presumption arises that the tenant is
entitled to remove them during or at the termination of its lease.
Cattie v. Joseph P. Cattie & Bros., Inc., 168 A.2d 313, 314 (Pa. 1961).
Once again, the premise of Appellant’s arguments is factual.
According to Appellant, when Sarver Landscape Supply became a sole
proprietorship in 2003, he became sole owner of the contested chattels.
Thereafter, Appellant continued to use them in the operation of his business.
Accordingly, Appellant asserts, he should be entitled to remove them from
the Property. See generally Appellant’s Brief at 29-30. However,
Appellant neglects to account for the trial court’s express findings that (1)
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Appellee acquired each of the contested chattels (or participated
substantially in their acquisition) and (2) Appellee intended their acquisition
to improve the value of the Property.
We discern no legal error in the trial court’s conclusion:
With respect to [Appellant’s] argument, that the trailer, truck
scale, and concrete barriers constitute fixtures, and thus belong
to [Appellant], the current situation is distinct[ly] different from
those cases whereby a tenant installs, on its own, trade fixtures
in which the landlord otherwise has no ownership interest. In
this case, the owner of the [P]roperty, [Appellee], participated in
the acquisition of each of the [contested] items. He procured
these items for the business and also for the premises in
general. Therefore, although these items were used in the
Sarver Landscape Supply business, said items were not intended
to be installed as trade fixtures[.] [R]ather, these items were
installed as permanent improvements to the [P]roperty.
Trial Court Decision at 12.
For the above reasons, we affirm the judgments of the trial court.
Judgments affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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