J-A01011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RITTENHOUSE 1603, LLC IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EUGENE BARBERA
Appellant No. 965 EDA 2018
Appeal from the Order Entered February 28, 2018
In the Court of Common Pleas of Philadelphia County
Civil Division at: December Term, 2014, No. 00080
BEFORE: OTT, STABILE, AND MCLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 24, 2019
Appellant, Eugene Barbera (“Appellant”), appeals from an order denying
his post-trial motions and entering judgment in favor of Rittenhouse 1603,
LLC (“Appellee”) in the amount of $142,624.38. We affirm.
Appellant owned a condominium at 202-10 Rittenhouse Square in
Philadelphia (“the Residence”). Appellant suffered financial hardships, and the
Residence went into foreclosure and was sold at sheriff’s auction.
Appellant and Lewis Katz (“Lewis”), Appellant’s longtime friend and
business associate, created a limited liability company (Appellee) that
purchased the Residence from a bank. Appellee’s operating agreement made
Lewis the managing member. Lewis contributed $235,000 in return for four
Class A voting units; Appellant contributed $1.00 for one Class B non-voting
unit. The operating agreement provided that any dispute between the parties
J-A01011-19
had to be resolved by Judicial Arbitration and Mediation Services, Inc.
(“JAMS”).
On December 12, 2013, Appellant assigned his Class B non-voting unit
to Lewis. On the same date, Appellee entered into an Occupancy Agreement
with Appellant, a separate document from the operating agreement. Under
the Occupancy Agreement, Appellant had the right to use and occupy the
Residence for a term commencing on December 23, 2013 and continuing until
thirty days after written notice of termination from Appellee. The Occupancy
Agreement did not require Appellant to pay rent. Instead, he was responsible
for paying all utilities, real estate taxes, special assessments, condominium
assessments and insurance. In addition, the Occupancy Agreement provided
that (1) the relationship was an occupancy at will, and (2) if Appellant
defaulted in his payments or violated any terms and conditions of the
agreement, he was responsible for paying all resulting costs, including
reasonable attorney fees.
On May 31, 2014, Lewis died in an airplane accident. As of that date,
Appellant had failed to make any payments due under the Occupancy
Agreement. Drew Katz, Lewis’s son, replaced Lewis as Appellee’s managing
member. On August 19, 2014, Appellee sent Appellant a written notice to quit
the premises and terminated the Occupancy Agreement. Appellant refused to
leave.
-2-
J-A01011-19
Appellee promptly filed an action in the Philadelphia Municipal Court
seeking Appellant’s eviction from the Residence (but not monetary damages).
On October 27, 2014, the Municipal Court entered judgment in favor of
Appellee. Appellant timely appealed to the Court of Common Pleas of
Philadelphia County (referred to below either as “court of common pleas” or
“trial court”).
On December 15, 2014, Appellee filed a paragraphed complaint in the
court of common pleas that included counts for specific performance of the
Occupancy Agreement, ejectment, trespass, breach of the Occupancy
Agreement and unjust enrichment. As remedies, Appellee sought possession
of the Residence, damages and attorney fees. Subsequently, Appellee
withdrew the trespass count.
Appellee also filed a motion for preliminary injunction demanding
immediate possession of the property. On February 3, 2015, the trial court
denied the motion for preliminary injunction, but at the same time, ordered
Appellant to escrow $925.11 per month to cover $566.36 in condominium fees
and $358.75 for monthly real estate taxes. Thereafter, Appellant complied
with the escrow order by depositing the requisite sum each month with the
prothonotary.
On May 28, 2015, at the beginning of trial, Appellant moved to transfer
the case to JAMS arbitration pursuant to the operating agreement. The trial
court continued trial to address the arbitration motion. On June 19, 2016, the
-3-
J-A01011-19
trial court denied the motion. Appellant appealed to this Court, which affirmed
in a memorandum on the ground that the Occupancy Agreement, not the
operating agreement, controlled the present dispute. Rittenhouse 1603,
LLC v. Barbera, 2068 EDA 2015 (Pa. Super., 12/16/16). On August 8, 2017,
the Supreme Court denied Appellant’s petition for allowance of appeal.
On November 15 and 20, 2017, the court of common pleas presided
over a bench trial. On November 20, 2017, the court entered a decision in
favor of Appellee on its claims of ejectment, breach of the Occupancy
Agreement and unjust enrichment. Pa.R.A.P. 1925 Opinion, 5/22/18, at 1, 5
(finding in favor of Appellee on ejectment claim); id. at 4-5, 7 (finding in favor
of Appellee for breach of contract and unjust enrichment). The court awarded
possession of the Residence to Appellee as well as counsel fees of $75,000.00,
costs (including condominium fees and taxes) in the amount of $16,924.33,
and rent in the amount of $50,700.00, for a total of $142,624.38.
Appellant filed timely post-trial motions, which the trial court denied on
February 27, 2018.1 On the same date, the court entered judgment in favor
of Appellee. Appellant filed a timely appeal to this Court, and both Appellant
and the trial court complied with Pa.R.A.P. 1925. Several days after
____________________________________________
1 During oral argument on post-trial motions, counsel for Appellant advised
that Appellant had vacated the Residence and surrendered his keys.
-4-
J-A01011-19
Appellant’s notice of appeal, the trial court ordered the release to Appellee of
$28,621.19 in funds escrowed with the prothonotary.2
Appellant raises four issues in this appeal:
1. Did the trial court err by awarding additional damages on a
claim for unjust enrichment where it had already awarded
damages based upon an express, written contract between the
parties based upon the same set of facts?
2. Did the trial court err by awarding attorneys’ fees where the
operative agreement containing the attorneys’ fee provision had
been terminated prior to the filing of the complaint?
3. Did the trial court err by awarding damages for rent where there
was no legally competent testimony or evidence supporting an
award of such damages?
4. Did the trial court err by concluding there was a meeting of the
minds establishing an agreement between the parties where the
agreement was missing pages and the signature pages are from
different documents?
Appellant’s Brief at 4.
Preliminarily, we address whether the lower courts had subject matter
jurisdiction over this action. The question of subject matter jurisdiction may
be raised at any time, by any party, or by the court sua sponte.3 Grimm v.
____________________________________________
2 The trial court stated in its Pa.R.A.P. 1925 opinion that it entered this order
upon stipulation of counsel. Id. at 6. Appellant does not challenge the release
of the escrowed funds in this appeal.
3 Shortly after the appeal from the Municipal Court to the court of common
pleas, Appellant filed a motion to transfer the case to the Standard Case Track
raising the issue of subject matter jurisdiction. Specifically, Appellant argued
that the Municipal Court lacked subject matter jurisdiction over this case. See
Appellant’s Motion To Transfer Case to Standard Case Track, at ¶¶ 5, 7 (filed
-5-
J-A01011-19
Grimm, 149 A.3d 77, 82 (Pa. Super. 2016). Subject matter jurisdiction
“relates to the competency of the individual court . . . to determine
controversies of the general class to which a particular case belongs.” Green
Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1268 (Pa. Super.
2015). “The want of jurisdiction over the subject matter may be questioned
at any time. It may be questioned either in the trial court, before or after
judgment, or for the first time in an appellate court, and it is fatal at any stage
of the proceedings, even when collaterally involved . . . .” In re Patterson’s
Estate, 19 A.2d 165, 166 (Pa. 1941). Moreover, it is “well settled that a
judgment or decree rendered by a court which lacks jurisdiction of the subject
matter or of the person is null and void . . . .” Com. ex rel. Howard v.
Howard, 10 A.2d 779, 781 (Pa. Super. 1940). We conclude that both the
Municipal Court and the court of common pleas had subject matter jurisdiction
over this action.
Appellee commenced this action in the Philadelphia Municipal Court,
whose jurisdictional statute provides in relevant part:
the Philadelphia Municipal Court shall have jurisdiction of the
following matters . . .
Matters arising under the act of April 6, 1951 (P.L. 69, No. 20),
known as The Landlord and Tenant Act of 1951 (68 P.S. §§
250.101—250.602). The judges of the Philadelphia Municipal
____________________________________________
1/14/15). On February 6, 2015, the court of common pleas denied Appellant’s
motion. Although Appellant has not renewed his subject matter jurisdiction
argument on appeal, we choose to raise it sua sponte to explain why each
court below properly exercised jurisdiction over this case.
-6-
J-A01011-19
Court shall have the power to enter judgments exceeding $5,000
in matters arising under this subsection. Appeals from a judgment
of the municipal court under this subsection shall be to the court
of common pleas in accordance with local rules of court
established by the administrative judge of the trial division. Those
rules shall not be inconsistent with [s]tatewide rules of procedure
as established by the Supreme Court.
42 Pa.C.S. § 1123(a)(3).
Under the Landlord and Tenant Act, landlords may seek the removal of
tenants from leasehold premises based on (1) termination of the term of the
lease, (2) breach of its conditions, or (3) the tenant’s failure to pay rent.
68 Pa.C.S.A. §§ 250.501, 250.503. A lease
may be defined as “[a] contract by which a rightful possessor of
real property conveys the right to use and occupy the property in
question for exchange of consideration, usu. rent.” Black’s Law
Dictionary 907 (8th ed.2004). While the parties need not use the
term “lease” in describing their agreement, a lease may be found
where it is “the intention of one party voluntarily to dispossess
himself of the premises, for a consideration, and of the other to
assume the possession for a prescribed period.” Morrisville
Shopping Center, Inc. v. Sun Ray Drug Co., [] 112 A.2d 183,
186 ([Pa.] 1955).
Forest Glen Condominium Association v. Forest Green Common
Limited Partnership, 900 A.2d 859, 865 (Pa. Super. 2006). Although the
Occupancy Agreement did not call for Appellee to pay “rent,” it constituted a
“lease” because it was a contract that permitted Appellant to use the
Residence in exchange for “consideration,” namely payment of utilities, real
estate taxes, special assessments, condominium assessments and insurance.
Id. Therefore, the Municipal Court had jurisdiction over Appellee’s complaint
seeking Appellant’s eviction under the Landlord and Tenant Act.
-7-
J-A01011-19
Next, the court of common pleas possessed subject matter jurisdiction
over Appellant’s appeal of the Municipal Court judgment against him. The
legislature authorizes aggrieved parties to appeal a Municipal Court landlord-
tenant judgment to the court of common pleas in accordance with “local rules
of court established by the administrative judge of the trial division.”
42 Pa.C.S.A. § 1123(a)(3). Here, following Appellant’s appeal to the court of
common pleas, Appellee filed a multi-count complaint alleging, inter alia,
ejectment, breach of the Occupancy Agreement and unjust enrichment.
Although Appellee did not allege these claims in the Municipal Court, Appellee
had the right to allege them in the appeal to the court of common pleas.
Philadelphia Local Rule *1001 provides that appeals from Municipal Court
landlord-tenant judgments “shall be in accordance . . . with the Rules of Civil
Procedure that would be applicable if the action being appealed was
initially commenced in the Court of Common Pleas.” Philadelphia Local
Rule *1001(f)(2)(ii). In turn, the statewide Rules of Civil Procedure provide
that “the plaintiff may state in the complaint more than one cause of action
cognizable in a civil action against the same defendant. Each cause of action
and any special damage related thereto shall be stated in a separate count
containing a demand for relief.” Pa.R.Civ.P. 1020(a). These authorities
permitted Appellee to prosecute actions in the court of common pleas that it
did not raise in the Municipal Court.
-8-
J-A01011-19
Turning to the arguments raised in this appeal, Appellant first contends
that because the trial court awarded damages for items covered in the
Occupancy Agreement (condominium fees and taxes), it could not also award
damages under the doctrine of unjust enrichment for items not covered in the
Occupancy Agreement (several years of rent that accrued after Appellee sent
the notice to quit). Appellant argues that Appellee cannot seek damages
under the unjust enrichment doctrine where an express written contract
governs the parties’ dealings.
We need not address whether an award for unjust enrichment is
improper, because we can uphold this award for a different reason. See
Zehner v. Zehner, 195 A.3d 574, 581 n.12 (Pa. Super. 2018) (appellate
court can affirm trial court’s ruling on any basis). Besides finding for Appellee
on the basis of unjust enrichment and breach of the Occupancy Agreement,
the trial court found for Appellee on its claim for ejectment. Notably, Appellee
requested damages in the prayer for relief on its ejectment claim. Damages
are available in an ejectment action against “holdover” tenants for the time
period in which the tenant wrongfully refuses to vacate the premises. Amoco
Oil Co. v. Burns, 408 A.2d 521, 524 (Pa. Super. 1979) (citing Doyle v.
Goldman, 180 A.2d 51 (Pa. 1962)). Appellant does not challenge the trial
court’s decision on ejectment in his appellate brief. Thus, the record supports
an award of rent for the holdover period to Appellee as damages in Appellee’s
ejectment action. We note that this award does not duplicate the award to
-9-
J-A01011-19
Appellee on its claim for breach of the Occupancy Agreement, since the award
on the ejectment claim was for rent while the award for breach of the
Occupancy Agreement was for condominium fees and taxes.
In his next argument, Appellant objects to the award of attorney fees
against him on the ground that the “[Occupancy Agreement] containing the
attorneys’ fee provision had been terminated prior to the filing of the
complaint.” Appellant’s Brief at 4. We disagree.4 Litigants bear responsibility
for their own costs and attorney's fees in the absence of express statutory
authorization for fee awards, contractual fee-shifting, or some other
recognized exception. Herd Chiropractic Clinic, P.C. v. State Farm Mut.
Auto. Ins. Co., 64 A.3d 1058, 1062 (Pa. 2013). In this case, the Occupancy
Agreement includes a fee-shifting provision requiring Appellant to pay
“reasonable attorneys’ fees” to Appellee “relat[ing] to [Appellee’s]
enforcement of the terms and conditions of this . . . Agreement.” The same
agreement includes a tenancy-at-will provision permitting Appellee to
terminate the lease at any time via written notice. Appellant breached the
Occupancy Agreement by failing to pay condominium fees and taxes and
violating the tenancy-at-will provision by refusing to vacate the Residence for
____________________________________________
4It does not escape our attention that this argument contradicts Appellant’s
previous argument contesting the unjust enrichment award. Appellant
objected to the unjust enrichment award on the ground that there was an
enforceable written agreement between the parties. In this argument,
however, Appellant claims that attorney fees are improper because the written
agreement is not enforceable.
- 10 -
J-A01011-19
several years after Appellee sent him a written notice to quit. The ensuing
litigation in the Municipal Court and court of common pleas constitutes
Appellee’s “enforcement” of the agreement, thus entitling Appellee to attorney
fees under the fee-shifting provision in the Occupancy Agreement.
Appellant insists that Appellant cannot obtain attorney fees because
Appellee did not initiate suit before terminating the Occupancy Agreement.
We agree with Appellee that the Occupancy Agreement does not require a
pre-termination lawsuit as the predicate for attorney fees. The agreement
simply states that Appellee can obtain attorney fees for “enforcing the terms
and conditions” of the agreement—precisely what Appellee did here.
Next, Appellant argues that Appellee’s claim for rent fails because
Appellee failed to identify the appropriate amount of monthly rent with
competent evidence. We disagree.
Appellee identified the amount of monthly rent through testimony of
Nancy Zemlak, chief financial officer of the Katz Family Office. The trial court
overruled Appellant’s objections to Zemlak’s competence to testify on this
subject. We review challenges to the trial court’s evidentiary rulings for an
abuse of discretion. U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 391–92
(Pa. Super. 2015). “[D]ecisions on admissibility are within the sound
discretion of the trial court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a ruling on evidence to
- 11 -
J-A01011-19
constitute reversible error, it must have been harmful or prejudicial to the
complaining party.” Id.
The owner of property may testify regarding the property’s value. “[A]n
owner may not be familiar with the general prices of property in the
neighborhood, nor may he possess all the qualifications that would be required
of others who testify as to value. Nevertheless, because he is an owner with
general knowledge of his property, he is a competent witness.”
Westinghouse Air Brake Co. v. Pittsburgh, 176 A. 13, 15 (Pa. 1934);
Welsh v. City of Phila., 16 Phila. 130, 142 (Pa. Ct. Com. Pl. 1987) (citations
omitted) (“Pennsylvania cases hold that a property owner may testify about
the fair market value of her property, and need not be held to the standard of
an appraiser. So long as an owner has personal knowledge of the property
and an understanding as to how it could be used, the testimony is
admissible”). Further, “values of land may be shown by persons generally
acquainted with the property whose knowledge and experience qualify them
to form a judgment as to value.” Westinghouse Air Brake Co., 176 A. at
15. In addition, where, as here, a corporate body owns the property, it “[is]
certainly in a position through its officers[] to know the value of its properties”
and present testimony regarding that value. Graham Farm Land Co. v.
Commonwealth, 70 A.2d 219, 221 (Pa. 1950) (admitting tax return
evidencing property valuation completed by corporation’s president); Faith
United Presbyterian Church v. Redevelopment Auth., 298 A.2d 614, 616
- 12 -
J-A01011-19
(Pa. Cmwlth. 1972) (high ranking officer of church qualified as “owner” who
could testify as to value of property in eminent domain proceedings).
Zemlak, chief financial officer of the Katz Family Office, handles all
business dealings of Lewis’s estate, including Appellee’s business affairs.
Zemlak testified extensively concerning her background and her management
of real estate assets of Lewis’s estate. She also testified about her personal
knowledge of the Residence and her review of comparable properties. Based
on this knowledge, she testified that the fair market value of the Residence
was $500,000.00, and its fair rental value was $1,300.00 per month. The
trial court acted within its discretion by determining that (1) Zemlak’s
connection with Appellee, the owner of the Residence, and (2) her knowledge
and experience, qualified her to testify as to the Residence’s fair market value
and fair rental value. Cf. Graham Farm Land Co., 70 A.2d at 221; Faith
United Presbyterian Church, 298 A.2d at 616.
Finally, Appellant argues that the Occupancy Agreement was
unenforceable because he did not see or understand the Occupancy
Agreement before signing it. Appellee claimed on the stand that he did not
receive a copy of the agreement or know what he was signing, but that he
simply followed Lewis’s direction to sign it. The trial court, as fact finder, was
not required to accept this self-serving testimony as true, and its verdict
demonstrates that it did not find Appellant credible. Appellant’s failure to read
the contract “is an unavailing excuse or defense and cannot justify an
- 13 -
J-A01011-19
avoidance, modification or nullification of the contract or any provision
thereof.” Olson Estate, 291 A.2d 95, 98 (Pa. 1972). There is no evidence
that Appellant lacked command of the English language, signed the agreement
under duress, or was defrauded into signing the agreement. Accordingly, this
argument fails.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/19
- 14 -