J-A07012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NINETY GAYLE AVENUE TRUST, JAN IN THE SUPERIOR COURT OF
ONDRA, TRUSTEE, PENNSYLVANIA
Appellant
v.
S-2 PROPERTIES, 831 SLEEPY HOLLOW
RD., STE. E., PITTSBURGH, PA 15234,
Appellee No. 1841 WDA 2014
Appeal from the Order Entered October 10, 2014
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2014-1625
BEFORE: BOWES, MUNDY AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2016
Ninety Gayle Avenue Trust, Jan Ondra, Trustee, appeals the trial
court’s ruling that it must pay for rental owed with respect to a trailer that it
owns before it can take possession of that item. We affirm.
Appellant instituted this action by filing a petition seeking issuance of a
rule to show cause directed to S-2 Properties located at 831 Sleepy Hollow
Road Ste E, Pittsburgh, PA 15234, as to why Appellant was not entitled to
immediate possession of a mobile home with a vehicle identification number
CHPA3892A8. It claimed the following. Appellant acquired title to the trailer
from LotsOfRealty.com on June 28, 2010. The trailer in question was
located on land owned by Appellee, which owns a trailer park. The trailer
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had previously been occupied by Shari Cox, so Appellant instituted an action
to eject her on October 4, 2012. The record indicates that the ejectment
complaint was not served in that the mobile home already was vacant.
On March 17, 2014, Appellant went to the mobile home and
discovered that it was posted with a court order indicating that it could not
be entered. Appellant discovered that, in a prior action instituted by
Appellee against Ms. Cox, Appellee had obtained a judgment for unpaid rent
that Ms. Cox owed while she was residing in the trailer. The $1,720.20
judgment was entered on August 9, 2012, and, on September 26, 2012, the
same court issued an order of possession in favor of Appellee.
Appellee responded to the rule by noting that the order granting it
possession was not appealed. Appellee further observed that it owned the
land upon which the mobile home was located, that Ms. Cox, when she lived
there, did not pay $1,720.20 in rental due for parking the trailer on its
property and that, after it obtained title to the trailer, Appellant likewise did
not pay rent to Appellee. Appellee presented a statement indicating that it
was owed $7,223.60 in rental fees. Since Appellee had an order granting it
possession and was owed rent, Appellee averred that Appellant could not
remove the trailer.
After a hearing, the trial court denied Appellant’s rule. It concluded
that Appellee had a possessory lien against the trailer and that Appellant
would be unjustly enriched if it was permitted to take possession of the
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mobile home without satisfaction of the unpaid rent. The court opined that
Appellee was entitled to payment for unsatisfied rental fees before Appellant
could remove its mobile home from Appellee’s real estate. This appeal
followed.1 Appellant raises these issues on appeal:
1. The trial court erred or abused its discretion in finding
that S-2 Properties possessed a lien interest in the Petitioner[’s]
mobile home.
2. The trial court erred or abused its discretion in finding
that Petitioner was responsible for rental payments and lot fees,
particularly if owed Respondent by a former tenant.
Appellant’s brief at 1.
We first must ascertain the appropriate principles to apply in this
matter. Appellant instituted this lawsuit by filing a petition for rule to show
cause; however, in that petition, Appellant was seeking to establish its title
to the mobile home in question. Hence, this case is in the nature of a
replevin action, which a plaintiff brings to demonstrate his right to take
possession of personal property. Wilson v. Highway Serv. Marineland,
418 A.2d 462, 464 (Pa.Super. 1980) (“The gist of the action of replevin is to
try the title to the chattels in question and the plaintiff's right to their
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1
We note that “A motion for post-trial relief may not be filed to matters
governed exclusively by the rules of petition practice.” Comment, Pa.R.C.P.
227.1(c).
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immediate possession.”).2 “To be successful in a replevin action, the plaintiff
must show not only title, but also the exclusive right of immediate
possession of the property in question. ‘Exclusive’ right of possession means
only a right which excludes the defendant. Thus, a plaintiff in a replevin
action must show good title and right to possession as against the
defendant, but is not required to set up such a title or right as against the
whole world.” Ford Motor Credit Co. v. Caiazzo, 564 A.2d 931, 933
(Pa.Super. 1989) (citations omitted). Under Pa.R.C.P. 1082(a), “a claim to
possession based upon a lien on the property in question in a replevin action
may properly be set forth as a counterclaim in the replevin action.” Id.
In connection with its first contention, Appellant maintains that the
trial court incorrectly concluded that Appellee had a possessory lien in the
mobile home pursuant to 72 P.S. § 5971i,3 which provides that a tax sale
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2
No one has challenged the parties’ failure to abide by the rules of civil
procedure applicable to replevin actions. Due to the highly unusual manner
in which this action was instituted and proceeded, we have carefully limited
our analysis to a discussion of the merits of the precise issues raised in this
appeal.
3
That provision pertains to tax sales and states:
No sale shall be valid where the taxes and interest have been
paid prior to said advertisement, or where the taxes, interest,
and costs have been paid after advertisement and before sale, or
when such taxes are not legally due and collectible. Every such
sale shall discharge the lien of every obligation, claim, lien or
estate with which said property may have or shall become
(Footnote Continued Next Page)
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(Footnote Continued)
charged, or for which it may become liable, except no such
sale shall discharge the lien of any ground rent, municipal
claim or tax remaining unpaid or mortgage which shall have
been recorded before such taxes became liens, by return and
docketing, as herein provided, and which is or shall be prior to
all other liens, except other mortgages, ground rents, municipal
claims, and/or other taxes. Any real estate sold under this act
may be redeemed by the owner, his heirs or legal
representatives, or by any lien creditor, or his heirs, assigns or
legal representatives, or by anyone interested in said real estate
for the benefit of the owner thereof, at any time within two years
after such sale, by the payment to the county treasurers of the
full amount which the purchaser paid to said treasurer for taxes,
interest, and costs and fifteen per centum of the amount of tax
in addition thereto. In case the purchaser has paid any taxes of
any kind whatsoever, assessed and levied against said property,
the same shall be reimbursed to said purchaser before any
redemption shall take effect. No sale of seated lands for taxes,
under the provisions of this act, shall be prejudiced or defeated
by proof that there was personal property to be found on the
premises sufficient to pay the taxes assessed thereon, nor shall
such sale be prejudiced by reason of the fact that such lands so
assessed as seated lands were at the time unseated.
When any real estate is so sold, no lien whatsoever against such
real estate shall be deemed to be discharged during the period
for redemption; but if such real estate is not redeemed, then all
liens against the same, except such liens as are hereinbefore
specifically saved, shall be deemed to be discharged from the
date that the right of redemption expired.
When any real estate is so redeemed by a lien creditor, or his
heirs, assigns or legal representatives, or by any person
interested for the benefit of the owner, the county treasurer
shall issue to the person redeeming such real estate a
certificate, stating the fact of such redemption, a brief
description of the real estate redeemed, and the amount of the
redemption money paid, which certificate may be entered in the
office of the prothonotary of the county as a judgment against
the owner of the real estate for the amount stated therein. The
(Footnote Continued Next Page)
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does not discharge a ground rent lien. Appellant observes that Appellee did
not obtain title to the mobile home through a tax sale and that Appellee was
not owed ground rent. We agree that the trial court should not have relied
upon this statute. First, the mobile home was not purchased at a tax sale.
Moreover, this action, contrary to Appellee’s position, simply does not
involve ground rent. Ground rent is defined as follows:
In Pennsylvania ground rent is a “perpetual rent reserved
to himself and his heirs, by the grantor of land in fee-simple,
out of the land conveyed. It is in the nature of an emphyteutic
[, i.e., in rem] rent.” Black's Law Dictionary (4th ed. 1968). Our
Supreme Court, in Pronzato v. Guerrina, 400 Pa. 521, 163
A.2d 297 (Pa. 1960), has further defined ground rent as: “an
incorporeal hereditament an interest in land distinct and
separate from the land out of which it issues. A ground rent is
created when the owner of land conveys his whole estate in fee
simple to another, reserving for himself a rent service; the
grantor has the ground rent estate and the grantee the
ownership of the land subject to payment of the ground rent.
Treasure Lake Prop. Owners Ass'n, Inc. v. Meyer, 832 A.2d 477, 482-
83 (Pa.Super. 2003) (citation omitted). In this case, Appellee did not sell
the lot in fee reserving for itself a rent service fee. Instead, it owned the
land and leased it for purposes of parking a mobile home on it.
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(Footnote Continued)
lien of any such judgment shall have priority over all other liens
against such real estate except such liens as would not have
been discharged had no redemption been made.
72 Pa.C.S. § 5971i.
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Despite the use of inappropriate legal precepts by the trial court and
Appellee, we note that Appellant instituted this case incorrectly by petition
for rule to show cause in lieu of a complaint raising a replevin cause of
action. Further, even though § 5971i is inapplicable, there is ample record
support for the trial court’s finding that Appellee obtained a possessory lien
against the mobile home.4 Appellant openly acknowledges that Appellee
obtained a judgment for unpaid rent against the former occupant of the
trailer, Sharon Cox, Appellee’s Exhibit 4, and it is not subject to question
that Appellee obtained an order for possession. Appellee’s Exhibit 5
(entering a “judgment for possession” in favor of Appellee on September 26,
2012).
Recognizing the existence of the judgment and order of possession,
Appellant asserts that it has the immediate right to exclusive possession of
the trailer by maintaining that the order of possession expired by its own
terms because Appellee took “no further action to evict or take possession of
the mobile home.” Appellant’s brief at 10. Appellant fails to quote the
language in the order of possession upon which it premises its position that
the order expired. Our independent review of the order indicates that the
order of possession states that the grant of possession was premised upon
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4
It is settled that an appellate court can affirm on any basis. Prieto Corp.
v. Gambone Const. Co., 100 A.3d 602 (Pa.Super. 2014).
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the money judgment not being satisfied by the time of eviction. Appellant
thus suggests that, pursuant to this language, since Ms. Cox never was
evicted, the order for possession expired.
We disagree with this position. The record establishes that Ms. Cox
already had vacated the premises by the end of September, 2012, as
evidenced by the fact that Appellant’s own complaint in ejectment against
Ms. Cox could not be served in October 2012 because the mobile home was
vacant. Appellant’s Exhibit 1. Thus, Appellee did not have to proceed with
eviction. The money judgment was not satisfied when Ms. Cox voluntarily
abandoned the premises. Since the money judgment was not satisfied at
any point and since the matter did not proceed to eviction, the language in
the order of possession was never implicated, and the order of possession
remained undisturbed. Additionally, Appellant’s claim that Appellee took no
further action to take possession of the mobile home is misguided. Appellee
already had possession of the mobile home since it was located on its land.
Appellee also posted the trailer with a court order stating that it could not be
entered. As there is record support for the trial court’s determination that
Appellee had a possessory lien with respect to the mobile home, the trial
court did not abuse its discretion in so concluding.5
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5
Appellant maintains that Appellee was required to place the trailer in
storage after it was vacated. Appellant’s brief at 11. It relies upon the
(Footnote Continued Next Page)
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(Footnote Continued)
Manufactured Home Community Rights Act, 68 P.S. 250.101, et seq. (the
“Act”). However, the section of the Act relied upon by Appellant has been
repealed. See 68 P.S. § 250.505 (Repealed by 2012, Oct. 24, P.L. 1267, No.
156, § 3(2), effective in 60 days [Dec. 24, 2012]). Instead, the Act does
not mandate that a vacant trailer be placed in storage; it merely permits
the owner of the real estate to take that action:
(a) If a resident abandons a manufactured home, the
manufactured home community owner or other authorized
person may:
(1)(i) enter the manufactured home and secure any
appliances, furnishings, materials, supplies or other
personal property in the manufactured home;
(ii) disconnect the manufactured home from any
utilities; and
(iii) otherwise exercise ordinary care in relation to
the manufactured home and personal property,
including promptly disposing of perishable food and
contacting an animal control agency or humane
society to remove any abandoned pets.
(2)(i) Move the manufactured home, any
personal property inside the manufactured
home and personal property located within the
manufactured home community that is
believed to belong to the resident to a storage
area within the manufactured home community or
to another location deemed necessary and proper
without the requirement of obtaining a removal
permit for the manufactured home from the local
taxing authority which would otherwise be required
under 53 Pa.C.S. § 8821(d) (relating to assessment
of mobile homes and house trailers). Prior to
moving the manufactured home and personal
property, the community owner shall notify the
former manufactured home resident by mail and by
posting on the manufactured home and at any other
(Footnote Continued Next Page)
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Appellant also challenges the trial court’s alternative conclusion that
Appellant, under the doctrine of unjust enrichment, was required to satisfy
unpaid rent before acquiring the mobile home.
The elements of unjust enrichment are benefits conferred on
defendant by plaintiff, appreciation of such benefits by
defendant, and acceptance and retention of such benefits under
such circumstances that it would be inequitable for defendant to
retain the benefit without payment of value. Whether the
doctrine applies depends on the unique factual circumstances of
each case. In determining if the doctrine applies, we focus not
on the intention of the parties, but rather on whether the
defendant has been unjustly enriched.
Moreover, the most significant element of the doctrine is
whether the enrichment of the defendant is unjust.
Joyce v. Erie Ins. Exch., 74 A.3d 157, 169 (Pa.Super. 2013) (emphasis in
original; citation omitted).
In this case, the allegations in Appellant’s complaint in ejectment
against Ms. Cox, which is an exhibit of record, establish that Appellant was
fully aware that the mobile home was located on land owned by Appellee.
Cf. State Farm Mut. Auto. Ins. Co. v. Jim Bowe & Sons, Inc., 539 A.2d
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(Footnote Continued)
known address or by any other means by which
notice may be achieved. The notice shall state that
the manufactured home and personal property, if
applicable, will be moved 60 days after the date of
notice and shall inform the former resident of the
new location of the manufactured home and
personal property.
68 P.S. § 398.10.2 (emphases added).
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391 (Pa.Super. 1988) (owner of chattel not responsible for storage fees
under doctrine of unjust enrichment when fees were incurred prior to time
owner became aware of location of stored item). After it acquired title to the
mobile home in June 2010, Appellant did not make any effort to ascertain
whether Ms. Cox actually was satisfying her rental obligations. Then, as of
October 2012, Appellant knew that Ms. Cox had vacated the trailer as the
sheriff’s return for its unserved ejectment complaint set forth that fact.
Thereafter, Appellant did not have any reason to believe that Ms. Cox was
paying rent. It did not, from October 2012 to April 2014, when it instituted
this lawsuit, attempt to satisfy all the rent accruing after Ms. Cox left the
property. Thus, the trial court did not abuse its discretion in holding that
Appellant would be unjustly enriched if it were permitted to remove the
trailer from Appellee’s land without paying the rent due and owing for the
period that Appellant owned the mobile home and it was located on
Appellee’s property.
Order affirmed.
Judge Mundy joined majority.
Judge Jenkins concur in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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