J-A29009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ADAM GRODIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LON FARR AND REBECCA DIRKSEN :
:
Appellants : No. 45 WDA 2019
Appeal from the Judgment Entered December 19, 2018
In the Court of Common Pleas of Allegheny County at No(s):
LT-18-000368
LT-18-000369
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 26, 2020
Appellants, Lon Farr and Rebecca Dirksen (collectively “Tenants”),
appeal from the December 19, 2018 judgment entered in favor of Appellee,
Adam Grodin (“Landlord”), and against Tenants, after a non-jury trial on
Landlord’s complaint for possession and recovery of back rent. 1 After careful
review, we reverse and remand for proceedings consistent with this
memorandum.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Tenants purport to appeal from the order dated December 13, 2018, denying
their post-trial motion; however, an appeal properly lies from the entry of
judgment following the trial court’s disposition of post-trial motions. See
Fanning v. Davne, 795 A.2d 388 (Pa. Super. 2002). Although Tenants
erroneously appealed from the order denying their post-trial relief, judgment
was subsequently entered on December 19, 2018, and their notice of appeal
relates forward to that date. See Pa.R.A.P. 905(a)(5). Hence, no
jurisdictional defects impede our review.
J-A29009-19
Landlord initiated this action on March 10, 2018, with the filing of a
landlord/tenant complaint in the magisterial district court, in which he sought
possession of real property and monetary damages for back rent under the
parties’ residential lease. On March 19, 2018, Tenants filed a counter-claim,
seeking return of their security deposit and first month’s rent held by Landlord.
By order dated March 22, 2018, the magisterial district judge entered
judgment in favor of Tenants. Landlord filed timely appeals of both his claim
and the counterclaim to the Court of Common Pleas of Allegheny County,
which were assigned two separate docket numbers (i.e., LT-18-000368 and
LT-18-000369, respectively). The two appeals were consolidated by court
order dated May 18, 2018, at docket number LT-18-000368.2
On May 31, 2018, a panel of arbitrators entered an award for Tenants
in the amount of $6,228.60. Landlord filed a timely appeal from the
arbitration award on June 29, 2018. A non-jury trial was scheduled for
September 7, 2018.
The evidence adduced at trial established that … Landlord,
at all relevant times[,] owned property located at 5549 Woodmont
Street, Pittsburgh, Pennsylvania, 15217. On January 13, 2016, …
Tenants executed a lease regarding the property with Landlord
that began on August 1, 2016, and ended on June 30, 2017. The
____________________________________________
2 We recognize that our Supreme Court recently held that “the proper practice
under Rule 341(a) is to file separate appeals from an order that resolves issues
arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). The Walker holding is not applicable in the instant matter,
however, as the aforementioned cases were consolidated prior to Landlord’s
filing of his notice of appeal.
-2-
J-A29009-19
monthly rent was $2,340.00, plus utilities, gas, electric, water and
sewer. On January 18, 2017, Tenants renewed the lease from
July 1, 2017, through June 30, 2018. The only change was that
rent increased to $2,440.00 a month. Landlord received a security
deposit of $2,440.00[,] and the last month’s rent of $2,440.00.
On July 9, 2017, [Mr.] Farr emailed Landlord to inform him
that Tenants purchased a new home and would vacate the
property on August 15, 2017. The parties agreed that Landlord
would attempt to either sell the property or lease it to a new
tenant[,] and Tenants would be relieved of their lease obligations
if this occurred. Landlord advertised the property for rent and
listed the property for sale with a real estate agent in August of
2017. Efforts to rent or sell the property were unsuccessful.
Tenants moved out of the property by the end of August,
2017, and had removed all of their possessions from the leased
premises by the end of December. Tenants continued to pay rent
through February of 2018.
In early February of 2018, Landlord canceled the realtor
agreement to sell the property because he had secured a new
tenant whose lease would begin on July 1, 2018. Landlord
changed the front door locks because it was possible that realtors
or others had keys to the property. Landlord did not inform
Tenants before he changed the locks and did not give them new
keys immediately afterwards. He believed Tenants could still
access their property by using their back door key and did not
know they were unable to enter the property. After Tenants
discovered that the locks had been changed, they contacted an
attorney to see if they could terminate the lease.
Landlord received a letter from Tenants dated February 24,
2018, stating they considered the lease terminated as of February
11, 2018, when they were locked out of the premise[s]. It is
uncontroverted that after Landlord received the letter, he
immediately attempted to provide Tenants with keys for the new
locks, offering to personally deliver them to Tenants. Landlord
called Tenants, left messages[,] and communicated with them
through email, but Tenants refused to accept the new keys.
[The trial court] found it credible that Landlord did not
intend to lock Tenants out of the property. Landlord believed that
Tenants had a key to the back door deadbolt when he changed
the locks, and thought it was the only functioning back door lock.
-3-
J-A29009-19
Although Landlord expected Tenants to use the back door key
to access the property, Tenants never received the necessary back
door keys. Landlord had not provided Tenants keys to the
property when they took possession. [Mr.] Farr had received the
keys from the previous tenant, Brendan Meeder, whom he knew.
The testimony was unclear whether Tenants received a key for the
back door deadbolt, but [Mr.] Farr testified that he was able to
unlock the back door deadbolt. [Mr.] Farr stated:
[W]hen I was verifying that I could not get into the property
on February 11, I used the keys that I had and tried to use
it on both the deadbolt[,] as well as on the key lock on the
back. Neither of the keys I had would operate the knob
lock, but they would operate the deadbolt. So[,] it appeared
to be that it was two separately sized keys between the
deadbolt and the knob, which I would say [] would require
two different keys.
The back door had two locks, a handle lock and a deadbolt lock,
and Tenants definitely did not receive keys to both locks. Landlord
never gave [Mr.] Meeder a key for the back door handle lock
because he thought it was broken, so Tenants could not have
received one.
Trial Court Opinion (“TCO”), 4/15/19, at 1-3 (emphasis and citations to record
omitted; commas added to some numbers).
The trial court entered a verdict in favor of Landlord on September 13,
2018, and awarded him damages in the amount of $5,048.00. On September
21, 2018, Tenants filed a motion for post-trial relief. By order of court dated
December 13, 2018, the trial court modified the amount of damages to
$4,880.00, but otherwise denied Tenants’ motion. A judgment in the amount
of $4,880.00 was entered in favor of Landlord and against Tenants on
December 19, 2018. Tenants filed a timely notice of appeal on January 3,
2019. Herein, Tenants raise the following issues for our review:
1. Whether the trial court erred in concluding that [] Landlord’s
act of changing the locks on the front door to the leased
-4-
J-A29009-19
premises during the term of the lease was not a breach of the
explicit and implicit covenant of quiet enjoyment terminating
the Lease, and [] Tenants’ obligation to pay rent[?]
2. Whether the trial court erred in concluding that [] Landlord’s
act of changing the locks on the front door to the leased
premises during the term of the lease did not constitute a
constructive eviction of [] Tenants, in part because [] Landlord
did not intend to exercise possession[?]
3. Whether the trial court erred in concluding that Tenants failed
to present sufficient evidence that [] Landlord’s acknowledged
breach of the parties’ Lease was not material when [] Landlord
changed the locks to the front door in violation of the lease,
the covenant of quiet enjoyment[,] and[] the[] prohibition
against self-help evictions[?]
4. Whether the trial court erred by failing to find that Landlord’s
act of changing the locks and exercising possession of the
leased premises terminated Tenants’ obligation to pay rent and
entitled Tenants to the return of escrow monies?
See Tenants’ Brief at 9-10, 35 (unnecessary capitalization omitted).3
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
____________________________________________
3 We acknowledge that issue 4 is not listed within Tenants’ Statement of the
Questions Involved, as required under Pa.R.A.P. 2116; however, their brief
does include a separate argument section regarding this claim. Moreover, the
record reflects that this issue was properly preserved in Tenants’ motion for
post-trial relief, and it was addressed by the trial court in its Pa.R.A.P. 1925(a)
opinion. Based on the foregoing, we determine that Tenants’ omission of this
issue from their Statement of Questions Involved does not impede our ability
to conduct meaningful appellate review and, thus, we will address the merits
of this issue herein.
-5-
J-A29009-19
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).
Preliminarily, we observe that the parties’ lease agreement contains an
explicit warrant of Tenants’ quiet enjoyment of the property. See Lease
Agreement, 1/13/16, at 5 ¶22.4 Additionally, we note that “[i]n 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).
The legal implication of the covenant [for quiet enjoyment],
express or implied, is that the lessor will permit the tenant to
enjoy fully the demised premises subject to any rights of the
lessor…. The covenant is breached when a tenant’s possession is
impaired by the acts of the lessor or those acting under him….
The impairment of the lessee’s possession need not be total, but
the utility of the premises must be substantially decreased by the
____________________________________________
4 The lease agreement provides, in relevant part:
22. QUIET ENJOYMENT: Lessor hereby warrants the quiet
enjoyment of Tenant in the leased premises.
Id.
-6-
J-A29009-19
landlord’s interference with a right or privilege which is necessary
to the enjoyment of the premises….
Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 967-
68 (Pa. Super. 2015) (internal quotation marks and citations omitted).
Constructive eviction is one species of a violation of the lessee’s right to
quiet enjoyment. Id. at 973. See also 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 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).
Instantly, Tenants claim that Landlord’s act of changing the locks on the
front door of the leased premises during the term of their lease constituted a
breach of the covenant of quiet enjoyment, as well as a constructive eviction.
Tenant’s Brief at 19, 24. They argue that when Landlord changed the locks,
he effectively terminated their ability to gain access to the leased premises,
which they were “entitled to fully enjoy…, including access … through the front
door, without interference from [] Landlord.” Id. at 23. In support of their
argument, Tenants note that this Court has “consistently held that the
covenant of quiet enjoyment is breached not only if the landlord asserts
-7-
J-A29009-19
possession and changes the locks, but merely interferes with access.” Id. at
22 (citing Pollock, 369 A.2d at 461). Moreover, Tenants contend that they
have “presented clear and convincing evidence that [] Landlord substantially
interfered with their possession of the leasehold[,] and[] that they abandoned
the leasehold after [] Landlord’s actions.” Id. at 27-28.
Landlord acknowledges that he changed the locks during the term of
Tenants’ lease without giving them advanced notice; however, he maintains
that this act did not amount to a breach of the covenant of quiet enjoyment
or a constructive eviction, as he did not intend to lock out Tenants. Landlord’s
Brief at 6, 24. Landlord states that he was under the impression the prior
tenant had given Tenants keys to the back door and, thus, he thought they
would still have access to the premises. Id. at 23-24. After learning that
Tenants did not possess back door keys, Landlord testified that he would have
provided them with new keys had he been asked. TCO at 8.
The trial court recognized that the parties’ lease was still in effect at the
time Landlord changed the front door locks and that, although he expected
Tenants to use the back door key to access the property, Tenants never
received the necessary keys. See id. at 3 (noting that “Landlord never gave
[the prior tenant] a key for the back door handle lock because he thought it
was broken, so Tenants could not have received one”). Despite these findings,
the trial court ruled in favor of Landlord, and reasoned: “Tenants were only
locked out because Landlord did not realize they did not have access through
the back door. Tenants were not denied access. All they had to do was
-8-
J-A29009-19
contact Landlord[,] and he would have provided them [with] new keys.” Id.
at 8. After careful review, we deem the trial court’s ruling in favor of Landlord
to be an error of law, as we determine that the record clearly supports the
finding of a breach of the covenant of quiet enjoyment and a constructive
eviction.
Our Supreme Court has in-depthly examined the pertinent law of this
Commonwealth regarding violations of the covenant of quiet enjoyment and
as to what constitutes constructive eviction.
“[I]t is settled in [Pennsylvania] 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.” Kelly v. Miller, … 94
A. 1055, 1056 ([Pa.] 1915)…. In Kelly, this Court held that the
covenant was breached when the landowner closed several
openings joining the leased premises, a theater, with other
adjoining premises that were owned or otherwise leased by the
tenant. The [C]ourt found that by obstructing access to the
adjoining premises, which were not encompassed in the relevant
lease, the landowner denied the tenant direct access to rooms
necessary to the functioning of the theater such as storage rooms,
dressing rooms, and bathrooms. We concluded that these actions
interfered with the tenant’s possession of the leased premises
even though they did not evict the tenant from the theater
building covered by the lease.
From Kelly, the Superior Court has concluded repeatedly that a
breach of the covenant can be demonstrated through constructive
eviction, if the tenant establishes that the utility of the premises
has been substantially decreased. See Branish[ v. NHP Prop.
Mgmt., Inc.], 694 A.2d 1106 [(Pa. Super. 1997)] (finding breach
of covenant of quiet enjoyment where landowner threatened
eviction if tenant’s boyfriend visited tenant at the property);
Jonnet Dev. Corp. v. Dietrich Indus., Inc., … 463 A.2d 1026,
1033 ([Pa. Super.] 1983) (noting that earlier cases required
physical disposition or actual disturbance but that “the great
weight of authority now is that a constructive eviction” will
-9-
J-A29009-19
suffice);[5] Checker Oil Co. of Del.[, Inc. v. Harold H. Hogg,
Inc.], 380 A.2d [815,] 819 [(Pa. Super. 1977)] (holding
landowner’s erection of guardrail blocking access from public
highway to tenant’s gasoline station constituted breach of
covenant of quiet enjoyment because the alteration deprived
tenant of a “valuable feature of the plot” and “substantially
reduced its utility”); Pollock…, … 369 A.2d [at] 458 … (collecting
cases and finding breach of covenant where landowner erected
mini-mall around formerly easily accessible dry-cleaning
establishment because the structural alteration substantially
decreased the utility of the property)….
Kohl v. PNC Bank Nat. Ass’n, 912 A.2d 237, 249 (Pa. 2006).
The application of these principles is further illustrated in Kuriger v.
Cramer, 498 A.2d 1331 (Pa. Super. 1985), where the heating system in the
appellant’s mobile home rental operated erratically throughout the winter and
eventually broke down altogether. After the appellee failed to take action to
fix the heating system, the appellant withheld rent. The appellee then
responded by shutting off heat and water to the mobile home. The Kuriger
Court opined that in such cases where “a landlord withholds heat, in breach
of a lease covenant, our courts have found a constructive eviction that gives
rise to an action for damages by the tenant.” Id. at 1338. The Court
____________________________________________
5 See also Weighley v. Muller, 1912 WL 4709, at *4 (Pa. Super. Jan. 1,
1912) (recognizing that the weight of authority no longer requires “physical
dispossession or actual disturbance in the possession of the tenant” to
constitute a breach of the covenant for quiet enjoyment; a constructive
eviction is sufficient); McSorley v. Allen, 1908 WL 3684, at *2 (Pa. Super.
Jan. 1, 1908) (“Physical expulsion is not … necessary to constitute an eviction.
Any act of a landlord which deprives his tenant of that beneficial enjoyment
of the premises to which he is entitled under a lease, will amount in law to an
eviction….”).
- 10 -
J-A29009-19
concluded, however, that the theory of constructive eviction was not available
to the appellant in Kuriger, only because she remained in possession of the
property. “However much the tenant may be disturbed in the beneficial
enjoyment of the premises by the landlord’s wrongful act, there is no
constructive eviction if he continues in possession of the whole of the
premises. Possession must be given up by the tenant in consequence of the
landlord’s acts[.]” Id. (internal quotation marks and citations omitted).
Instantly, Tenants have clearly abandoned possession of the leasehold.
After discovering that the locks on the leasehold had been changed, Tenants
informed Landlord via certified letter that they considered the lease to be
terminated, and they returned all keys in their possession to him. Tenants’
Brief at 15-16. Moreover, after analyzing the relevant principles and case law,
we conclude that Landlord’s interference with Tenants’ enjoyment of the
leasehold was certainly substantial, as it not only limited or altered their
access to the premises, but completely deprived them of their means to enter
the leasehold.
Additionally, we determine that the trial court erred in placing undue
emphasis on Landlord’s intention regarding the changing of the locks. 6 This
precise issue was addressed in Morley v. Morley, 424 A.2d 524 (Pa. Super.
____________________________________________
6 The trial court opined: “Landlord did not intentionally keep Tenants from
accessing the property, and [he] wanted to provide new keys as soon as he
learned Tenants were locked out…. Landlord’s changing the locks was not a
constructive eviction, since Tenants could have entered simply by contacting
Landlord for new keys.” TCO at 7.
- 11 -
J-A29009-19
1981), where the appellant returned to her rental home after an extended
visit with an ill parent, only to find that the appellee had changed the locks.
The appellee originally testified that he only changed the locks “because the
old locking or latching mechanism … just disintegrated. The front door knob
came off in [his] hand[.]” Id. at 525. Later, the appellee admitted that “he
changed the locks on the front door to maintain his privacy, and, [he] had
continued to exclude the appellant from the jointly-owned residence….” Id.
at 525-26. On appeal, we concluded that the appellee’s act in changing the
lock on the dwelling, “for whatever reason” and his failure to provide the
appellant with a new key constituted a constructive eviction. Id. at 526
(emphasis added). Our decision in Morley was based on the appellee’s
actions and their effect on the appellant – not on the intent behind those
actions.
Similarly, in the case at hand, we must look to Landlord’s actions and
their effect on Tenants, and not to Landlord’s intentions. Regardless of
whether he intended to lock out Tenants, by changing the locks on the front
door, Landlord prevented Tenants from accessing the leasehold. This Court
has consistently found constructive eviction where access to the premises was
merely altered or limited in such a way that the utility of the premises was
substantially decreased. Thus, we must certainly conclude that constructive
eviction has been established where, as here, Landlord’s actions completely
denied Tenants’ access to the property, and where Tenants abandoned the
premises as a result.
- 12 -
J-A29009-19
Given our determination that Landlord’s actions constituted a breach of
the covenant of quiet enjoyment and constructive eviction, we need not reach
the merits of Tenants’ claim regarding whether a breach of contract occurred.
Our disposition of Tenants’ first two claims renders this issue moot.
Finally, we address Tenants’ claim regarding whether the trial court
erred in finding that they owe past due rent to Landlord, and that they are not
entitled to a refund of their security deposit. The trial court opined that
Tenants’ obligation to pay rent was not terminated when Landlord changed
the locks and, thus, concluded that Tenants still owed rent for the months of
March through June of 2018. The court further indicated that Tenants were
not entitled to a refund of their security deposit, as the funds were being used
to offset the amount of rent owed to Landlord. TCO at 5-6. 7
To the contrary, based on our finding of constructive eviction in the
instant matter, Tenants’ obligation to pay rent was clearly suspended. “If the
tenant is entitled to the beneficial enjoyment of the premises under the terms
of his lease, and if he is deprived of this by the act of the landlord, it amounts
to an eviction, and will suspend the rent….” Sears, 126 A.3d at 967 (quoting
Weighley, 1912 WL 4709, at *4) (emphasis added). See also Hoeveler v.
Fleming, 1879 WL 11614, at *2 (Pa. Oct. 15, 1879) (noting “that an eviction
____________________________________________
7The trial court noted that Tenants did not pay rent beyond February of 2018,
and that the lease extended through June 30, 2018. Id. It calculated that
Tenants owed a total of $9,760.00 for past due rent (4 months at
$2,440.00/month) less the escrow funds ($2,440.00 for the security deposit
and $2,440.00 for the prepaid last month’s rent), “resulting in an award of
$4[,]880[.00] to Landlord.” Id. at 6.
- 13 -
J-A29009-19
of a tenant by the landlord of [the] demised premises suspends the rent”);
McCandless v. Findley, 1925 WL 5084, at *2 (Pa. Super. Jan. 1, 1925);
McSorley, supra.
Not only did Landlord’s actions release Tenants from their obligation to
pay rent, but we note that Tenants may also be entitled to recover damages
from Landlord. It is well-settled in Pennsylvania 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.” Pollock, 369 A.2d at 460 (citing Kelly, 94 A. at 1056) (emphasis
added). “Recovery for breach of [the] covenant [of quiet enjoyment] has
been allowed in Pennsylvania where a landlord has evicted the tenant by
locking up the leased premises and denying the tenant access[.]” Id. (citing
Minnich v. Kauffman, 108 A. 597 (Pa. 1919); Stein v. McGinley, 186 A.
231 (Pa. Super. 1936)). “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. at 462 (quoting Minnich, 108 A. at 598).
Accordingly, we reverse the judgment in favor of Landlord, and we
remand this matter to the trial court for the purpose of determining the
amount of Tenants’ damages, if any, and to enter the same in judgment for
Tenants.
Judgment reversed. Case remanded. Jurisdiction relinquished.
- 14 -
J-A29009-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
- 15 -