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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
OXFORD TOWER APARTMENTS, LP, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
FRENCHIE’S HAIR BOUTIQUE AND
ROLANDE S. CHRISTOPHE,
Appellees No. 429 EDA 2019
Appeal from the Judgment Entered March 11, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): June Term 2018 1488
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 10, 2020
Appellant, Oxford Tower Apartments, LP, appeals from the March 11,
2019 judgment entered in favor of Appellees, Frenchie’s Hair Boutique
(“Frenchie’s”) and Rolande S. Christophe (“Ms. Christophe”), after a non-jury
trial on Appellant’s breach of contract action. After careful review, we affirm.1
Ms. Christophe is the owner of Frenchie’s, a limited liability corporation,
which sells hair extensions, clothing, and accessories. Ms. Christophe entered
into a three-year commercial lease with Appellant on September 6, 2016, for
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* Former Justice specially assigned to the Superior Court.
1 We note that Appellees have failed to file an appellate brief.
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a small retail storefront located at 7215C Rising Sun Avenue, Philadelphia,
Pennsylvania.
This action began on June 13, 2018, as an appeal from a decision
rendered in municipal court.2 A trial was initially scheduled for September 10,
2018, and a settlement conference was set for August 28, 2018. On July 3,
2018, Appellant filed a breach of contract action against Appellees, seeking
unpaid rent and possession of the property. After several continuances by the
court, a two-day non-jury trial began on December 3, 2018, and concluded
on December 11, 2018.
At trial, Appellant’s property manager, Toby Strumpf, testified regarding
Appellees’ rent arrears in the amount of $15,583.00, plus attorneys’ fees and
costs, and claimed that Ms. Christophe was still in possession of the keys to
the property. N.T. Trial (“N.T. Trial I”), 12/3/18, at 15. Ms. Strumpf stated
that she began contacting Ms. Christophe regarding Appellees’ rent arrears in
October of 2017, that a payment was subsequently received in November of
2017, and that no further payment was made until May of 2018. Id. at 17.
Ms. Christophe testified that she began experiencing problems with the
premises from the time she entered the lease, which interfered with the
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2 On December 27, 2017, Appellant filed a landlord/tenant complaint in the
Philadelphia Municipal Court at LT-17-12-27-6106. Appellant sought
possession of the premises and a monetary judgment for unpaid rent.
Appellees filed a counterclaim on May 7, 2018, seeking damages to recover
for losses incurred due to Appellant’s breach of contractual duties. On May
14, 2018, the municipal court granted Appellant possession and a judgment
in the amount of $1,713.83 for nonpayment of rent. As to the counterclaim,
the court awarded judgment in favor of Appellees in the amount of $5,139.75.
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running of her business, i.e., a lack of heat in the building, problems with the
front door of her store, and issues with the flooring. N.T. Trial (“N.T. Trial
II”), 12/11/18, at 40-46. Ms. Christophe stated that she often complained to
management for Appellant about these issues, but to no avail.
In addition to these ongoing problems, a sewage pipe erupted in the
store on December 19, 2017, which resulted in water and sewage throughout
the first floor of Frenchie’s, as well as a significant amount of water and
sewage in the basement where Appellees’ inventory was stored. N.T. Trial I
at 21-22; N.T. Trial II at 72. Appellant did not send a maintenance crew to
the store until December 27, 2017. After confirming the overflowing toilet,
Appellant hired Carpet Docs to extract the water and sanitize the flooring.
N.T. Trial I at 27, 31. It became apparent that the floors would have to be
replaced, which would require the clearance of the whole property. Thus,
Appellant asked Ms. Christophe to remove her things from the store. Id. at
37. An agreement was eventually reached that Ms. Christophe would remove
all of her belongings from the property by March 4, 2018; however, Ms.
Christophe did not move her things out until “about the 21st of March.” Id.
at 42-46. Appellant stated: “We immediately went in, sanitized, ripped up the
floor, put down a whole new floor, everything was cleaned. The basement
was cleaned…. That was sanitized as well. We … did whatever we needed to
do to get her back up and running.” Id. at 45. The work was completed on
March 29, 2018. Id. at 47.
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Contrary to Appellant’s claims, Ms. Christophe testified that she “had to
throw everything away” after the flood and that she was never able to reopen
Frenchie’s. N.T. Trial II at 50-51. Appellees lost everything as a result of the
water and sewage. Their computer was damaged by Appellant’s maintenance
workers during the initial clean up, so Ms. Christophe was unable to even
access customer information. Ms. Christophe indicated that she paid one
month’s rent in May of 2018, because Appellant had promised to fix the store
and she had hoped to resume her business. Id. at 52. Unfortunately, she
was never able to reopen the store because it smelled, and Appellant had
failed to fix the heat. Ms. Christophe eventually moved Appellees’ belongings
out of the property on June 27, 2018, and turned in her key.3 Id. at 54, 58.
On December 11, 2018, the trial court entered an order finding in favor
of Appellees and against Appellant. By order dated December 31, 2018, and
entered on the docket on January 2, 2019, the court vacated its December
11, 2018 order to amend the language and expressly granted Appellant
immediate possession of the premises. In addition, the court found in favor
of Appellees and awarded Ms. Christophe damages in the amount of
$7,500.00, “due to resulting damage from a lingering faulty plumbing
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3 Ms. Christophe clarified that the key she turned in was the key to the back
door, because after she had reported a problem with the front door, Appellant
had taken her front door key for repair and had never returned it to her. Id.
at 61.
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problem, which made the [lease] … unenforceable.” Trial Court Opinion
(“TCO”), 4/3/19, at 1.
On January 15, 2019, Appellant filed a post-trial motion for relief, which
was denied by the trial court on January 17, 2019. Appellant filed a timely
notice of appeal on January 30, 2019.4 Herein, Appellant presents the
following issues for our review, which we address out of order for ease of
disposition:
1. Did the trial court abuse its discretion and err as a matter of
law in its decision to not award any money damages to
[Appellant] where the evidence clearly indicated that
[Appellant] was entitled to relief?
2. Did the trial court abuse its discretion and err as a matter of
law in its inconsistent order which granted possession but
denied [Appellant’s] claims for [damages] and granted
[Appellees’] claims for damages?
3. Did the trial court abuse its discretion and err as a matter of
law in entering judgment in favor of [Appellees] on the
counterclaim[,] as the amount awarded is not supported by the
evidence of the law?
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4 Ordinarily, an appeal properly lies from the entry of judgment, not from the
order denying post-trial motions. See generally Johnston the Florist, Inc.
v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super. 1995) (en banc).
Nevertheless, a final judgment entered during pendency of an appeal is
sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and
Supply Co., 787 A.2d 1050 (Pa. Super. 2001). Although Appellant’s notice
of appeal was filed prematurely in the instant matter, judgment was
subsequently entered on March 11, 2019. Thus, Appellant’s notice of appeal
relates forward to March 11, 2019. See Pa.R.A.P. 905(a)(5) (stating that a
notice of appeal filed after a court’s determination but before the entry of an
appealable order/judgment shall be treated as if it was filed after the entry of
the appealable order/judgment and on the date of entry). Hence, no
jurisdictional defects impede our review.
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4. Did the trial court err as a matter of law in disregarding the
commercial lease contract?
5. Did the trial court abuse its discretion and err as a matter of
law by bifurcating the trial for eight days, thus separating the
direct testimony of [Appellant’s] witness from the remainder of
[t]he case and causing prejudice to [Appellant]?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
We apply the following standard of review to a non-jury trial verdict:
Our appellate role in cases arising from non[-]jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of the jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, [where] the issue … concerns a question of law, our
scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to facts of the case. The trial court, as the finder
of fact, is free to believe all, part or none of the evidence
presented. Issues of credibility and conflicts in evidence are for
the trial court to resolve; this Court is not permitted to reexamine
the weight and credibility determination or substitute our
judgment for that of the fact finder.
Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d
1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks
omitted).
Here, Appellant avers that the trial court abused its discretion and erred
as a matter of law in its decision to not award Appellant monetary damages.
Appellant presents this matter as a simple breach of contract action, in which
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it alleges that Appellees continued to remain in possession of the unit and
refuse to pay rent. Appellant’s Brief at 8. Appellant maintains that it was not
aware of any ongoing issues in the unit, that it promptly addressed any repairs
requested by Appellees, and that any delays in completing the repairs were
due solely to Ms. Christophe’s lack of cooperation. Based on the foregoing,
Appellant concludes that Appellees are obligated to pay the rent. Id. at 8,
12-13. The record clearly belies Appellant’s claim.
From the beginning of the lease, Ms. Christophe complained of issues
such as no heat in the building, which caused severe fogging on the glass front
door and the formation of ice on the inside of the window. TCO at 4; N.T.
Trial II at 40, 43. Her customers complained “[a]ll the time” about how cold
it was in the store. N.T. Trial II at 44. Ms. Christophe testified that she
repeatedly reported the heating problem to Appellant, beginning in November
of 2016, but that Appellant’s only response was to provide her with two small
space heaters. Id. at 40-41. Additionally, in late 2016, Ms. Christophe was
unable to use the key to open the front door of her business. Appellant took
her front door key in an attempt to fix it, but never returned it to her. Thus,
Ms. Christophe has been forced to enter her store through the back door ever
since. TCO at 4; N.T. Trial II at 44-46. Ms. Christophe also faced issues with
the flooring throughout the life of the lease. TCO at 4. She indicated that
Appellant was often nonresponsive to her complaints, that her phone calls
frequently went unanswered or messages were not returned, and that when
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she visited Appellant’s office in person on numerous occasions, she was unable
to find anyone in the office to help her. N.T. Trial II at 41-42, 46.
In addition to all of these issues, in the winter of 2017, the sewage pipe
erupted, “resulting in sewage and fecal matter throughout the first floor and
the basement of the property[,] rendering the rented property completely
useless.” TCO at 4. Ms. Christophe testified that the eruption of the sewage
pipe occurred on December 19, 2017, but that Appellant failed to come to
inspect the damage until December 27th. N.T. Trial II at 46, 49. Video
footage, taken by Ms. Christophe on either December 27th or December 28th,
was produced at trial as evidence of significant water in the basement. Id. at
72. Appellees argued that, based upon the emergency events that occurred
in late 2017 and early 2018, and Appellant’s failure to remedy the property,
they were constructively evicted from the premises. See id. at 80. The trial
court agreed. TCO at 4.
“In every lease of real property there will be implied a covenant of quiet
enjoyment.” Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. 1976). Acts
of a landlord that substantially interfere with the tenant’s anticipated use of
the premises constitute a breach of this covenant. Id. at 461. Constructive
eviction is one species of a violation of the lessee’s right to quiet enjoyment.
Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 973
(Pa. Super. 2015). Kohl v. PNC Bank Nat. Ass’n, 912 A.2d 237, 249 (Pa.
2006) (noting that this Court has concluded repeatedly that a breach of the
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covenant of quiet enjoyment can be demonstrated through constructive
eviction).
To constitute a constructive eviction, the interference by a
landlord with the possession of his tenant or with the tenant’s
enjoyment of the demised premises must be of a substantial
nature and so injurious to the tenant as to deprive him of the
beneficial enjoyment of a part or the whole of the demised
premises, … to which the tenant yields, abandoning the possession
within a reasonable time.
Sears, 126 A.3d at 968 (quoting Kuriger v. Cramer, 498 A.2d 1331, 1338
(Pa. Super. 1985)) (emphasis omitted). “[P]roblems that might not
constitute a constructive eviction were they isolated, rare, and promptly
addressed by the landlord may rise to a constructive eviction when they
persist, remain unremedied, and substantially interfere over time with the
tenant’s quiet enjoyment of the leasehold.” Id. at 976-77.
Here, Appellees presented testimony regarding numerous ongoing
problems that hindered their ability to conduct business and that remained
unremedied by Appellant, despite Appellees’ frequent complaints. Appellant
argues that the holding in Sears is not applicable to the instant matter, as it
suggests Appellees never surrendered the premises. However, the record
clearly contradicts Appellant’s claim. Ms. Christophe attempted to reopen her
store, but was unable to due to “the foul odor of waste emanating from the
floor.” N.T. Trial II at 80. As a result, Ms. Christophe removed Appellees’
belongings from the premises and surrendered the key to Appellant. N.T. Trial
I at 54, 58. The trial court concluded that “Appellees presented a greater
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weight of evidence and, by a preponderance of the evidence[,] [it] found for
… Appellee[s].” TCO at 4.
Appellant questions the trial court’s finding that Ms. Christophe’s
complaints regarding ongoing issues went unanswered by Appellant and
essentially asks this Court to reassess the credibility of the witnesses.
Appellant’s Brief at 13. However, it is well-settled that we cannot substitute
our judgment for that of the trier of fact. See Commonwealth v. Holley,
945 A.2d 241, 247 (Pa. Super. 2008). The trial court was free to believe
certain witnesses and to disbelieve the testimony of other witnesses, as “[t]he
trier of fact has the unique opportunity to see and hear subtleties of answers
and movements of witnesses and parties not viewable from the cold record.”
Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). The trial
court concluded that the evidence presented supported a finding in favor of
Appellees. TCO at 4. We deem the trial court’s determination to be well-
supported by the record, and we discern no abuse of discretion.
Next, we address Appellant’s claim that the trial court’s “ruling granting
[it] possession of the property and simultaneously finding that constructive
eviction occurred is inconsistent.” Appellant’s Brief at 15. Appellant asserts
that there is no constructive eviction if the tenant continues in possession of
the whole of the premises. Id. at 14 (citing Kuriger, 498 A.2d at 1338).
While this is true, Appellant’s argument that the theory of constructive eviction
is unavailable to Appellees is based on the faulty conclusion that Appellees did
not vacate the premises. Id. at 15. The record supports, for the purpose of
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finding constructive eviction, a determination that Appellees did vacate the
premises. See N.T. Trial II at 57-58, 61 (noting that Ms. Christophe removed
Appellees’ belongings from the premises at the end of June 2018, placed the
key to the back door of the store—her only key to the premises at the time—
in an envelope, and returned the key through the slot in Appellant’s office
door). Based on the foregoing, Appellant’s claim is meritless.
Appellant further argues that the trial court erred in finding that the
lease was unenforceable. However, the argument section of Appellant’s brief
consists merely of general statements unsupported by any analysis of relevant
legal authority whatsoever. See Appellant’s Brief at 19-21. “The Rules of
Appellate Procedure state unequivocally that each question an appellant raises
is to be supported by discussion and analysis of pertinent authority.” Coulter
v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014); see also Pa.R.A.P.
2119(a) (stating that the appellant’s brief “shall have …such discussion and
citation of authorities as are deemed pertinent”). “Appellate arguments which
fail to adhere to these rules may be considered waived, and arguments which
are not appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Coulter, 94 A.3d at 1088 (citation omitted). This
Court will not act as counsel, and will not develop arguments on behalf of an
appellant. See id. at 1088-89 (stating that mere issue spotting without
analysis or legal citation to support an assertion precludes appellate review of
a matter). Accordingly, we deem this issue to be waived.
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To the extent that Appellant suggests that the amount awarded by the
trial court to Appellees was an abuse of discretion and is not supported by the
record, we note:
The duty of assessing damages is within the province of the fact-
finder and should not be interfered with unless it clearly appears
that the amount awarded resulted from partiality, caprice,
prejudice, corruption or some other improper influence…. So long
as the verdict bears a reasonable resemblance to the damages
proved, it is not the function of the court to substitute its judgment
for that of the [fact-finder].
Epstein v. Saul Ewing, LLP, 7 A.3d 303, 315 (Pa. Super. 2010) (citation
omitted). “In cases of breach of the covenant of quiet enjoyment, or where
the tenant is deprived of the beneficial enjoyment of the premises, … damages
can be awarded for losses which can be proved.” Pollock, 369 A.2d at 462.
“The general rule … is that [the] lessee may recover … for all losses which he
can prove he has actually sustained, or which he will necessarily sustain, under
the circumstances, as a result of the unlawful eviction.” Id. Moreover, it is
well-settled that “any wrongful act of the landlord which results in an
interference of the tenant’s possession, in whole or in part, is an eviction for
which the landlord is liable in damages to the tenant.” Kohl, 912 A.2d at 248-
49 (quoting Kelly v. Miller, 94 A. 1055, 1056 (Pa. 1915)).
Here, Appellees’ counterclaim asserts damages in the amount of
$5,000.00 in lost profits and $6,928.54 in lost inventory. Appellee produced
exhibits at trial containing documentation for these amounts. See N.T. Trial
II at 55-57. Contrary to Appellant’s claim, the trial court’s award of $7,500.00
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to Appellees is supported by the record and, thus, we discern no abuse of
discretion.
Lastly, Appellant argues that the trial court abused its discretion and
erred as a matter of law by bifurcating the trial. Appellant suggests that the
“splitting of the trial was prejudicial to [its] case[.]” Appellant’s Brief at 22.
In response to Appellant’s claim, the trial court opined:
From the beginning of testimony, [] Appellant’s counsel, Ms.
Baylarian, informed the [c]ourt that she was “scheduled
elsewhere at one o’clock in the afternoon.” Throughout the day,
both parties were less than candid to the [c]ourt about the time
they needed. After [] Appellant rested and before [] Appellees
put on their case[,] the [c]ourt status the matter [sic]. Once
again, [] [Ms. Baylarian] announced to the [c]ourt that she ha[d]
[]to be in Municipal Court at one o’clock, which was her only
concern.[] After hearing from [] Appellees that they were not in
opposition to continuing the matter, the [c]ourt decided it was in
the best interest to bifurcate the remaining portion of the case.
After reviewing and comparing schedules, the [c]ourt and both
parties agreed to December 11, 2018. This date fell on a pre-
planned off[-]week for the [c]ourt and yet, the [c]ourt
accommodated the requested date of the parties. At no point did
[] Appellant complain of possible prejudice against [its] witness in
accepting the new date to complete the trial.
TCO at 5-6 (citations to record omitted). Appellant’s claim of prejudice
contains nothing more than bald assertions and fails to demonstrate any
actual prejudice. Moreover, we emphasize that the trial court continued the
trial to accommodate Appellant’s counsel’s schedule. We deem Appellant’s
claim to be wholly without merit.
Accordingly, we affirm the March 11, 2019 judgment entered in favor of
Appellees.
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/20
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