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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
SHARAE ELIZABETH RUSSELL, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SYREETA JOHNSON, :
:
Appellant : No. 880 EDA 2019
Appeal from the Order Entered February 12, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): September Term, 2018, No. 18-09-03706
BEFORE: GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 15, 2020
Syreeta Johnson (Tenant) appeals from the order entered on February
12, 2019, which granted her petition to release money from escrow and
ordered her to vacate the property owned by Sharae Elizabeth Russell
(Landlord). Upon review, we vacate the order of the trial court and remand
for proceedings consistent with this memorandum.
We provide the following background. On September 28, 2018, the
Philadelphia Municipal Court entered judgment in favor of Landlord and
against Tenant for possession of the residential property at issue, based
upon termination of the lease term. No monetary damages were awarded.
On the same day, Tenant pro se filed an appeal to the Court of Common
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* Retired Senior Judge assigned to the Superior Court.
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Pleas of Philadelphia County. Tenant was required to pay $825 per month
as a supersedeas.1 Also on September 28, 2018, Tenant ruled Landlord to
file a complaint.2
On October 9, 2018, Landlord filed a complaint. In the complaint,
Landlord claimed that Tenant did not return a copy of the lease to Landlord
until the hearing in the Philadelphia Municipal Court on September 28, 2018.
Landlord claimed that Tenant “doctored” the term of the lease.3 Complaint,
10/9/2018, at ¶ 4. Landlord claimed that despite the Municipal Court
judgment granting Landlord immediate possession, Tenant has “refused to
deliver possession” of the residential property to Landlord. Id. at ¶ 6. Thus,
Landlord requested possession.
On October 22, 2018, counsel entered an appearance on behalf of
Tenant. Counsel requested a jury trial, and filed preliminary objections to
the complaint. According to Tenant, the complaint was deficient because
Landlord failed to attach a copy of the lease, no verification was attached to
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1 Tenant paid this amount in a timely fashion each time it was due
throughout the course of this litigation.
2 Landlord claims she did not learn of this appeal until she appeared at the
court clerk to file a petition for a writ of possession. Complaint, 10/9/2018,
at ¶ 6.
3 According to Landlord, she provided Tenant a copy of the lease, and the
two had a verbal agreement for a month-to-month lease. When the lease
was returned to Landlord at the Municipal Court hearing, Tenant had written
a term of six months into the lease. Amended Complaint, 11/21/2018, at
¶ 4.
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the complaint, and the complaint otherwise failed to state a claim. On
November 16, 2018, the trial court sustained the preliminary objections and
dismissed the complaint without prejudice.
On November 21, 2018, Landlord filed an amended complaint.
According to Landlord, she provided a written lease to Tenant, but the lease
term was a verbal agreement and “was month to month because [Tenant]
claimed to be moving to Delaware in August 2018 and only needed housing
[in this property] for a few months.” Amended Complaint, 11/21/2018, at
¶ 4. Landlord attached to the amended complaint a lease, on which she
claimed Tenant “doctored” the term of the lease to make it six months. Id.;
see also id. at Exhibit A. According to Landlord, Tenant failed to pay
utilities as required, changed the locks in violation of the lease, and also
made reports to the Department of Licenses and Inspections regarding
concerns about the property.
A settlement conference occurred, at which no resolution was reached.
On November 26, 2018, Tenant filed a motion for extraordinary relief. She
requested additional time to file an answer and counterclaim so that she
could obtain documentation regarding alleged violations on the property.
Landlord opposed this motion. On December 3, 2018, the trial court granted
the additional time requested by Tenant, and set jury selection in this case
for April 8, 2019.
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On January 8, 2019, Tenant filed preliminary objections to the
amended complaint, claiming that Landlord’s amended complaint was
deficient because it asked for monetary damages in a case where Landlord
was only seeking possession. Also on January 8, 2019, Tenant filed an
emergency motion seeking to release her money from escrow. On January
10, 2019, the trial court issued a rule to show cause why the relief requested
by Tenant should not be granted. A hearing was scheduled for February 11,
2019. Meanwhile, on February 1, 2019, the trial court sustained Tenant’s
preliminary objections and again dismissed the amended complaint without
prejudice. The order provided Landlord twenty days to amend the
complaint. Order, 2/1/2019.
A hearing was held on the rule to show cause on February 11, 2019.
At that hearing, Tenant, through counsel, claimed that she “desperately
wants to get out” of the property, but she needed her escrow money back in
order to move.4 N.T., 2/11/2019, at 5. According to Tenant, she has a
“serious counterclaim,” but she has not yet filed it because the trial court
dismissed the amended complaint and no second amended complaint has
been filed. Id. However, according to Tenant, on February 10, 2019, she
“filed an affirmative case against [Landlord] for illegal lockout, violation of
lead law, and the Unfair Trade Practices Act.” Id.
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4 Tenant did not pay a security deposit or the last month’s rent when she
rented the property.
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According to Landlord, she called “the state” on Tenant because
Tenant “was running an illegal daycare.” Id. at 6. Landlord also claimed she
never locked Tenant out of the property. The trial court pointed out that
these living arrangements are “not working out.” Id. at 9. Landlord agreed
and stated that she had asked Tenant what it would take for her to leave the
property. Id. The trial court provided the “solution.” Id. The trial court
told the parties it would give Tenant her escrow money and then Tenant
would move out.5
Tenant then argued to the trial court that the issue of escrow money is
separate from the possession issue, and despite the fact that Tenant “wants
to move out of there more than anybody,” she wants to pursue her own
claims against Landlord. Id. at 13. The trial court then asked Tenant for a
“drop-dead date” for Tenant to move because it did not believe that once
Tenant received the escrow money, she would actually move, despite the
fact that Tenant was also claiming the property was unfit and she did not
want to live there. Id. at 14. Tenant then asked for the escrow money plus
additional money to move out. Id. at 16. Once Tenant recognized that the
trial court was going to give Tenant the escrow money, but also order
Tenant to move out, Tenant requested that she have until March 1, 2019, to
move. The trial court entered an order to that effect. In addition, Tenant
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5 According to Tenant, she offered that solution previously, and Landlord
refused. N.T., 2/11/2019, at 12.
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requested that the order “specifically state that there is no prejudice to
[Tenant] filing affirmative claims against [Landlord] in a separate action.”
Id. at 19. The trial court agreed and added such language to the order,
which was entered on February 12, 2019.
Tenant timely filed a notice of appeal, and both Tenant and the trial
court complied with Pa.R.A.P. 1925. On appeal, Tenant sets forth several
issues for our review, but her primary concern is her claim that the trial
court “exceeded its authority when … [it] sua sponte ordered [Tenant] to
evacuate the property.” Tenant’s Brief at 10.
Before we reach the merits of this appeal, we must determine whether
the order appealed from is an appealable order, as that impacts our
jurisdiction. We may consider issues related to our jurisdiction sua sponte.
See Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017).
Tenant claims that the order appealed from is a final order pursuant to
Pa.R.A.P. 341. See Tenant’s Brief at 1. “Rule 341 is fundamental to the
exercise of jurisdiction by this [C]ourt.” Prelude, Inc. v. Jorcyk, 695 A.2d
422, 424 (Pa. Super. 1997) (en banc). See also 42 Pa.C.S. § 742 (“The
Superior Court shall have exclusive appellate jurisdiction of all appeals from
final orders of the courts of common pleas….”). “Generally, [a]n appeal may
be taken only from a final order, unless otherwise permitted by rule or
statute. A final order is one that disposes of all the parties and all the
claims, is expressly defined as a final order by statute, or is entered as a
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final order pursuant to the trial court’s determination.” K.M.G. v. H.M.W.,
171 A.3d 839, 842 (Pa. Super. 2017) (internal citations and quotation marks
omitted).
Instantly, the trial court did not make a determination that this was a
final order, and there is no statute defining it as a final order; so, this order
is only appealable pursuant to Pa.R.A.P. 341 if it disposes of all claims and
all parties. Although Tenant points out that there is no pending complaint in
this case, see Tenant’s Brief at 13, the amended complaint was dismissed
without prejudice. “By granting a party leave to amend, the trial court has
not finally disposed of the parties or their claims. For finality to occur, the
trial court must dismiss with prejudice the complaint in full.” Mier v.
Stewart, 683 A.2d 930 (Pa. Super. 1996). In other words, Landlord may
still file a second amended complaint, and Tenant may file counterclaims to
that complaint.6 Thus, the order appealed from is not a final order pursuant
to Pa.R.A.P. 341.
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6 We recognize that the trial court provided Landlord 20 days to file a second
amended complaint, and that 20-day-period has long since passed.
However, the fact that Landlord has not yet filed an amended complaint
does not render the order dismissing the complaint and permitting leave to
amend a final order. As set forth by Judge R. Stanton Wettick, it is up to
Tenant to request the trial court “enter a judgment of non pros for failure to
prosecute” “[u]pon expiration of the 20 day period.” Malone v. Smith, 18
Pa. D.& C. 3d 682 (Allegh. Co. 1981); see also Hionis v. Concord Twp.,
973 A.2d 1030, 1035 (Pa. Cmwlth. 2009) (“There is precedent to support
the trial court’s proposition that its order could not become final until a
procedural step is taken, such as receiving a judgment of non pros.”).
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Our analysis does not end here. We now consider an alternate basis
upon which this Court may exercise jurisdiction. Pennsylvania Rule of
Appellate Procedure 311(a)(4) provides for the right to appeal interlocutory
orders which grant or deny injunctions. Pa.R.A.P. 311(a)(4).7 Arguably, the
portion of the trial court’s order which ordered that Tenant vacate the
property was a grant of injunctive relief in favor of Landlord. In Overland
Enterprises, Inc., v. Gladstone Partners, LP, 950 A.2d 1015, 1019 (Pa.
Super. 2008) (emphasis in original), this Court pointed out that “[i]nasmuch
as possession of the former leasehold had passed to [the landlord] as a
result of the eviction process, the present injunction constitutes a
mandatory preliminary injunction in that it requires [the landlord] to
surrender its possession of the former leasehold to [the former tenant] for
its business use.” Similarly, in this case, the trial court ordered Tenant to
surrender possession of the property to Landlord. Thus, we conclude that
the order is appealable pursuant to Pa.R.A.P. 311(a)(4) as a preliminary
injunction.
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7 Tenant has neither sought nor been granted permission for an interlocutory
appeal pursuant to Pa.R.A.P. 312; and this order does not satisfy the
requirements for being a collateral order pursuant to Pa.R.A.P. 313(b) (“A
collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and
the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.”). The central issue
in this order is possession of the property, which is the main issue in the
case.
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We now turn to the merits of this appeal. 8 On appeal, Tenant sets
forth numerous specific arguments, but all can be boiled down to her
contention that the trial court was without the authority to order that she
vacate the property. See Tenant’s Brief at 10 (arguing the trial court
“exceeded its authority when … [it] sua sponte ordered [Tenant] to evacuate
the property”). According to Tenant, she was denied various rights by the
trial court, including notice that the hearing on her rule to show cause could
result in eviction. Id. at 17.
A trial court has broad discretion to grant or deny a
preliminary injunction. When reviewing a trial court’s grant[ing]
or refusal of a preliminary injunction, an appellate court does not
inquire into the merits of the controversy, but rather examines
only the record to ascertain whether any apparently reasonable
grounds existed for the action of the court below. We may
reverse if the trial court’s ruling amounted to an abuse of
discretion or a misapplication of law.
***
Pennsylvania Rule of Civil Procedure 1531(a) sets forth the
procedure governing preliminary injunctions:
A court shall issue a preliminary or special
injunction only after written notice and hearing
unless it appears to the satisfaction of the court that
immediate and irreparable injury will be sustained
before notice can be given or a hearing held, in
which case the court may issue a preliminary or
special injunction without a hearing or without
notice. In determining whether a preliminary or
special injunction should be granted and whether
notice or a hearing should be required, the court
may act on the basis of the averments of the
pleadings or petition and may consider affidavits of
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8 Landlord did not file a brief on appeal.
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parties or third persons or any other proof which the
court may require.
Pa.R.C.P. 1531(a)[.] Accordingly, a court will ordinarily issue a
preliminary injunction only after written notice and hearing. A
preliminary injunction may be granted without notice and a
hearing only when there exists a need for unusual haste so that
a clear right may be protected from immediate and irreparable
injury. In that event, the court must make a finding that relief is
necessary and must be awarded before the defendant can be
notified. If the court then fails to conduct a hearing within five
days, the injunction is deemed dissolved.
WPNT Inc. v. Secret Commc’n Inc., 661 A.2d 409, 410-11 (Pa. Super.
1995) (internal citations omitted).
Here, while both parties appeared at the hearing on the rule to show
cause regarding the release of the escrow money, neither party had notice
that the trial court was going to consider the issue of possession. Moreover,
neither Landlord nor Tenant testified at the hearing.9 Only argument from
Tenant’s attorney and Landlord, because of her pro se status, was
considered. In WPNT, this Court held that it was reversible error for the
trial court to grant a “preliminary injunction solely on the basis of the
pleadings and arguments of counsel.” Id. at 411. We reach the same
conclusion here. We recognize the trial court was attempting to reach a fair
result, and offer a resolution that would be best under these circumstances.
However, our rules simply do not authorize the trial court sua sponte to
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9 The trial court posits that “[o]n February 11, 2019, the [trial court] heard
full testimony from [Tenant] and [Landlord].” Trial Court Opinion,
6/20/2019, at 6. However, the notes of testimony belie that conclusion.
See N.T., 2/11/2019.
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grant a preliminary injunction without a hearing. To do so amounts to an
abuse of discretion by the trial court, which requires us to vacate the order
of the trial court.10
Order vacated. Case remanded. Jurisdiction relinquished.
PJE Gantman concurs in the result.
Judge Murray concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/20
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10 On remand, the trial court may want to consider whether the issue of
possession is moot. “This Court has observed, [a]n issue before a court is
moot if in ruling upon the issue the court cannot enter an order that has any
legal force or effect.” Lico, Inc. v. Dougal, 216 A.3d 1129, 1133 (Pa.
Super. 2019) (internal quotation marks omitted). “[C]ases presenting
mootness problems involve litigants who clearly had standing to sue at the
outset of the litigation. The problems arise from events occurring after the
lawsuit has gotten under way - changes in the facts or in the law - which
allegedly deprive the litigant of the necessary stake in the outcome….”
Graziano Const. Co. v. Lee, 444 A.2d 1190, 1193 (Pa. Super. 1982). If
Tenant has vacated the property, the issue regarding injunctive relief may
be moot.
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