J-A07023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CINDY LOU FRAZIER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOLENE SOLOMON
Appellee No. 593 WDA 2015
Appeal from the Order March 10, 2015
In the Court of Common Pleas of Clarion County
Civil Division at No(s): 985-2013
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 25, 2016
Appellant, Cindy Lou Frazier, appeals from the March 10, 2015 order,
directing that certain property be returned to Appellee, Jolene Solomon, and
her former boyfriend, Dale Wentling. After careful review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
[Appellant] as landlord and [Appellee] as
tenant entered into a residential lease agreement
dated January 1, 2013, under which [Appellee]
rented the residence at 1395 Tylersburg Rd., Leeper,
PA for a period of one year to commence January 1,
2013, and ending on December 31, 2013.
[Appellee] was incarcerated in the county jail
for 14 days in July 2013 on a matter unrelated to
this case. While [Appellee] was in jail[, Appellant]
initiated a landlord-tenant proceeding against
[Appellee] with a Magisterial District Judge. While in
jail[, Appellee] was served with a notice of the
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hearing scheduled before the Magisterial District
Judge on July 31, but was served with no other
papers with regard to this matter.
Sometime prior to July 22[, Appellant] changed
the locks on the residence and the garage with the
furnishings and other personal property of [Appellee]
and her boyfriend Dale Wentling locked inside.
At the [M]agisterial District Judge hearing on
July 31, 2013, [Appellant] received judgment for
rent arrears of $4500; damage to [the] property of
$2538.78; costs of $156.50 and service fees of
$60.05 for a total of $7,255.33. On August 23,
2013, [Appellee] appealed that judgment to the [trial
court]. On September 10, 2013, [Appellant] filed
the complaint in this matter. On September 19,
2013, [Appellee] filed an answer and counterclaim
for the personal property being held by [Appellant].
The matter was heard by a board of arbitrators on
March 27, 2014, and the arbitrators awarded
[Appellant] $4,264.21 including costs. [Appellee]
did not appeal the judgment. On November 19,
2014[, Appellant] filed a motion for aid in execution,
asking the [trial] court to award ownership of the
1979 Chevrolet Monte Carlo which was part of the
property taken by [Appellant] when the locks were
changed on the rented property. [Appellant] further
requests the [trial] court to award title to a boat
licensed by the Pennsylvania Fish and Boat
Commission. [Appellant]’s motion for aid in
execution was scheduled for [a] hearing before th[e
trial c]ourt on December 30, 2014. At the time of
that hearing [A]ttorney [Chad] Rosen[, Esquire
(Attorney Rosen)] appeared on behalf of Dale
Wentling[,] who was [Appellee]’s boyfriend at the
time of the rental of the property and claimed that
Mr. Wentling owned the Chevrolet Monte Carlo as
well as other personal property including various
tools etc. which were still in [Appellant]’s possession
and that [Appellant] refused to permit Mr. Wentling
to obtain possession of the same. At that time there
was no formal motion for Mr. Wentling to intervene
in the proceeding and the [trial] court encouraged
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the parties to discuss the matter and attempt to
resolve it amicably. The parties agreed to a motion
by [Appellee] to continue the matter to permit
further discussion. On January 26, 2015, [Appellant]
filed a motion to reschedule the hearing on the
motion for aid in execution, and on March 10, 2015,
the hearing was held. Mr. Wentling, through
counsel, asked to intervene which was not opposed.
The [trial c]ourt found [Appellant] was illegally
holding property of [Appellee] and Mr. Wentling and
ordered [Appellant] to return the property to them.
Trial Court Opinion, 7/1/15, at 1-3.1 On April 9, 2015, Appellant filed a
timely notice of appeal.2
On appeal, Appellant raises one issue for our review.
I. May a landlord and tenant lawfully agree to
include the following language in their contract
lease agreement:
“13. The tenant hereby gives Landlord, in
addition to the lien given by law, a lien upon all
property situated upon said premises, including
all furniture and household furnishings,
whether said property is exempt from
execution or not, for the rent agreed to be paid
hereunder, for any damages caused by Tenant,
and for court costs and attorney’s fees incurred
under the terms hereof[?]”[]
Appellant’s Brief at 2.
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1
We note the trial court opinion does not contain pagination. Therefore, we
have assigned each page a corresponding page number for ease of review.
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Instantly, Appellant argues the trial court erroneously concluded
Appellee’s and Wentling’s due process rights were violated without first
considering whether paragraph 13 of the lease applied. Id. at 10.
Appellant’s sole argument is that the trial court “fail[ed] to analyze the
issues presented under paragraph 13 of the lease contract.” Id. Appellant
asks for this Court to vacate and remand with instructions for the trial court
to consider whether paragraph 13 precludes its due process conclusion. Id.
At the outset, we observe that a claim as to whether a person’s
constitutional rights were violated and questions pertaining to the
interpretation of a contract present questions of law, for which our standard
of review is de novo, and our scope of review is plenary. Wirth v.
Commonwealth, 95 A.3d 822, 835 (Pa. 2014); Clarke v. MMG Ins. Co.,
100 A.3d 271, 275 (Pa. Super. 2014), appeal denied, 117 A.3d 294 (Pa.
2015).
At the March 10, 2015 hearing, Appellant attempted to argue that
paragraph 13 of the lease applied. The exchange that occurred was as
follows.
[Appellant’s counsel]: … The order of possession
gives [Appellant] the right to take property on the
land. Second, paragraph 13 of the lease [Appellee]
said she gives a lien --
[Wentling’s counsel]: I’m going to object. That
was never placed into evidence, the lease.
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[Appellant’s counsel]: The lease is of [sic] the file.
It’s part of it, and it’s actually attached to my
pleading as well, I believe.
[Wentling’s counsel]: There was no evidence
concerning --
[Appellant’s counsel]: It’s in the file.
[Wentling’s counsel]: There’s no evidence in the
record, that [paragraph] 13 wasn’t discussed at all
today, Your Honor.
The Court: All right. That’s sustained.
N.T., 3/10/15, at 56-57.
The record reveals the trial court did not consider paragraph 13 of the
lease because it sustained Wentling’s objection that the lease was not placed
into evidence.3 See id. Appellant’s brief is devoid of any argument that
challenges the trial court’s ruling on Wentling’s objection. Therefore,
Appellant has waived this issue. See generally Pa.R.A.P. 2119(a); In re
Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure
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3
We do note the trial court addressed the issue of distraint generally at the
March 10, 2015 hearing, leaving aside whether paragraph 13 of the lease in
this case required a different result. See generally N.T., 3/10/15, at 60-
61. The trial court noted that we had previously held that the distraint
statute, 68 P.S. § 250.302, was unconstitutional under the Due Process
Clause of the Fourteenth Amendment. Id. at 60. As this Court explained in
Allegheny Clarklift, Inc. v. Woodline Indus. of Pa., Inc., 516 A.2d 606
(Pa. Super. 1986), Section 250.302 deprived a tenant of notice and an
opportunity to be heard, which strikes at the very core of the procedural
component of the Due Process Clause. Id. at 608. As a result, the trial
court concluded that Section 250.302 could not be used to support
Appellant’s seizure of Appellee and Wentling’s property in this case, as it
would violate their due process rights. N.T., 3/10/15, at 61.
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to cite relevant legal authority constitutes waiver of the claim on appeal[]”)
(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013). Instead,
Appellant only argues the merits of the issue, that is, whether paragraph 13
affects the trial court’s conclusions in its order. Appellant’s Brief at 8-10.
Since Appellant has waived all argument regarding Wentling’s objection, and
we may not raise the issue sua sponte, we are precluded from reaching the
merits of Appellant’s claim. See, e.g., Estate of Haiko v. McGinley, 799
A.2d 155, 161 (Pa. Super. 2002) (stating, “[i]t is not this Court’s function or
duty to become an advocate for the appellant[]”).
Based on the foregoing, we conclude Appellant’s issue raised on appeal
does not warrant relief, as Appellant has waived any challenge to the trial
court’s reason for not considering the merits of the same. Accordingly, the
trial court’s March 10, 2015 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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Frazier, C. v. Solomon, J.
Combined Opinion