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HomeMy WebLinkAbout2006-6841 Civil BRUCE B. KISLAN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : LCL INCOME PROPERTIES, LP II : NEW YORK URBAN, INC., LCL : MANAGEMENT, LLC, AIMEE L. YORK : & SHERRI HOCKLEY, : DEFENDANTS : 06-6841 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR PARTIAL JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., May 13, 2008:-- Plaintiff, Bruce B. Kislan, was a tenant under a written lease for an apartment at the Fairmont Park Apartments in Cumberland County. Defendant, LCL Income Properties, LP II, owns and defendant LCL Management, LLC, manages the Fairmont Park Apartments. Defendant, Aimee L. York, was the property manager and defendant Sherri Hockley was the regional manager for Fairmont Park Apartments. On November 5, 2007, plaintiff filed an amended complaint against defendants containing a count for breach of implied covenant of quite enjoyment (tort), breach of implied covenant of quite enjoyment (contract), and trespass to chattels. Defendants filed an answer with new matter and a counterclaim. Plaintiff filed a reply to the new matter and counterclaim. Plaintiff filed a motion for partial judgment on the pleadings which was briefed and argued on April 16, 2008. 06-6841 CIVIL TERM The following averments in plaintiff’s complaint are not contested. In April, 2006, plaintiff contacted the rental office for Fairmont Park Apartments to report a leak in the ceiling of his apartment. While plaintiff was at work, defendants had workers enter the apartment to repair the leak. Defendants removed all of Kislan’s property from the apartment and barred him from re-entry. In new matter, defendants aver that when their workmen entered plaintiff’s apartment to fix the leak, they discovered that the condition of the apartment precluded them from working because of garbage and clutter. This material contained rodent feces, live mice, mold, garbage, and other filth which defendants concluded imposed such a risk and hazard to the health of plaintiff and other tenants that they removed all of plaintiff’s property and barred him from re-entering the apartment. Plaintiff replied to the new matter denying that his apartment contained rodent feces or droppings, was infested with mice or contained extensive amounts of mold and garbage or excess clutter or that the apartment constituted a health hazard. Pursuant to Pa. Rule of Civil Procedure 1034(a), plaintiff seeks a partial judgment on the pleadings as to liability on his count of breach of implied warranty of quite enjoyment (tort), claiming that defendants wrongfully evicted him from his apartment by self-help. Defendants maintain that it is an issue for a jury as to whether Smith v. Windsor, they properly used self-help to evict plaintiff. As set forth in 750 A.2d 304 (Pa. Super. 2000), we must confine our consideration to the pleadings and relevant documents. We must accept as true all well pleaded statements of fact, -2- 06-6841 CIVIL TERM admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that a trial would clearly be a fruitless exercise. While plaintiff disputes the facts pleaded by defendants as to the condition of his apartment, plaintiff maintains that, even accepting those facts pleaded by defendants as true, he is still entitled to a judgment on the pleadings. In other words, plaintiff maintains that even if the condition of his apartment were determined by defendants to pose a risk and hazard to the health of other tenants, defendants wrongfully exercised self-help in summarily evicting him. The Landlord and Tenant Act of 1951, 68 P.S. Section 250.101, which sets forth the procedure to be utilized to evict a tenant, provides at Section 250.602: All other acts and parts of acts, general, local and special, . It is inconsistent with or supplied by this act, are hereby repealed intended that this act shall furnish a complete and exclusive system in itself. (Emphasis added.) Neither party has found binding appellate precedent on whether a landlord may, Wofford v. under certain circumstances, exercise self-help in evicting a tenant. In Vavreck, 22 D.&C.3d 444 (Crawford County 1981), the trial court made the following review of this issue: It is clear that the common law of Pennsylvania permitted a -3- 06-6841 CIVIL TERM landlord to re-enter his leased dwelling for breach of a lease condition and to retake possession of it without the aid of any court of legal process: Mayer v. Chelten Avenue Building Corporation, 321 Pa. 193, 183 A. 773 (1936). Plaintiffs, however, initially contended that the adoption of the Landlord and Tenant Act of 1951 constituted a legislative decision to abolish the common law self-help remedy and to instead make the act the exclusive vehicle by which to repossess real property. Plaintiffs weave their interpretation of legislative intent from several threads provided in the act. The Historical Note to section 250.101 states that the Landlord and Tenant Act is: “An act relating to the rights, obligations and liabilities of landlord and tenant and of parties dealing with them and amending, revising, changing and consolidating the law relating thereto.” (Emphasis supplied.) Next, plaintiffs point to the “General repeal” found in section 250.602 which states that: “All other acts and parts of acts, general, local and special, inconsistent with or supplied by this act, are hereby repealed. It is intended that this act shall furnish a complete and exclusive system in itself.” (Emphasis supplied.) Finally, plaintiffs note that section 350.103, entitled “Provisions excluded from Act” does not list the remedy of self-help among those practices and procedures not modified or repealed by the act’s adoption. Accordingly, on the basis of the foregoing sections, plaintiffs conclude that the adoption of the Landlord and Tenant Act of 1951 legislated out of existence a landlord’s common law self-help repossession remedy. To the contrary, we find no real or implied legislative intent in 1951 to abolish the landlord self-help doctrine. Close scrutiny of the Landlord and Tenant Act of 1951 reveals that when enacted, it was intended to be a codification and consolidation of four existing landlord and tenant statutes only and did not also consolidate existing principles of common law. The 1951 act indicates a desire to consolidate the four unwieldy earlier acts which were over-technical, difficult to apply and sometimes ineffective in providing the remedy intended. See M. Stern, Trickett on the Law of Landlord and Tenant in Pennsylvania, (Revised Third Edition 1973), Vol. 2, page 4. Because the concept of self-help eviction enjoyed judicial approval during the tenure of the prior landlord and tenant repossession statutes (see Overdeer v. Lewis, 1 Watt & S. 90 1841), it is unrealistic to conclude that the legislature, in 1951, when consolidating those prior acts, impliedly outlawed the use of self-help evictions in the absence of any expressed clear intent to do so. Indeed, one commentator, in reviewing the -4- 06-6841 CIVIL TERM landlord’s use of the statutory provisions to recover possession contained in the 1951 act, states that: “. . . [T]here exists the additional remedies of ejectment and self-help. . . . The landlord may also regain possession through self-help where the lease has expired or where there is a provision in the lease which provides for a forfeiture in the case where rent is due and unpaid or where a covenant which provides for surrender of possession has been breached.” (Richardson, The Pennsylvania Landlord and Tenant Act of 1951, 13 U. Pitt L. Rev. 414 (1952).) (Emphasis supplied.) Accordingly, we find that the legislature did not intend, in 1951, to legislate self-help evictions out of existence. (Footnote omitted.) The trial court then concluded that self-help evictions could not be utilized in O’Brien v. Jacob Engle Foundation, Inc., cases involving non-payment of rent. In 47 D.&C.3d 557 (Cumberland County 1987), this court in a case of a dispute involving Lenair v. Campbell, rent, cited 31 D.&C.3d 237 (Phila. Co. 1984), a case involving a tenant who was behind in his rental payments: “Appellate decisions in this Commonwealth support the conclusion that the legislature envisioned the Act as a complete and exclusive remedy for a landlord seeking to vindicate his rights. See e.g., Ewing v. Oliver Realty, 305 Pa. Super. 486; 451 A.2d 751, 56 (1982), Peitzman v. Seidman, 285 Pa. Super, 228, 427 A.2d 196 (1981). Moreover, in an analogous situation, the Pennsylvania Supreme court clearly expressed its view that self-help shall not be employed where judicial procedures are available.” Berman v. City of Philadelphia, 425 Pa. 13, 228 A.2d 189 (1967). Berman v. City of Philadelphia, In 425 Pa. 13 (1967), the Philadelphia Department of Licenses and Inspection issued a Use and Zoning permit whereby appellants were granted permission to use a trailer on a lot as a bail and bondman’s office. In reliance upon this permit appellants entered into a lease. Subsequently, the -5- 06-6841 CIVIL TERM Department revoked the permit. Appellants filed a complaint in equity averring that the executive department of the City of Philadelphia was about for forcibly evict them from their premises. A trial court refused to issue a preliminary injunction. The Supreme Court of Pennsylvania reversed, stating: “We conclude that the failure of the court below to insist that the police resort to the available legal machinery rather than forcibly evicting appellants, thereby insuring the dignity of the legal process, did amount to an abuse of discretion.” Kuriger v. Cramer, In 1985, the Superior Court of Pennsylvania in 345 Pa. Super. 595 (1985), although stating that the issue that needed to be resolved did not require the court to reach the appellant’s contention that the Landlord Tenant Act “and rules implementing it constitute the exclusive means by which a landlord may recover possession for leased premises, for whether or not appellee used wrongful means in resorting to self-help instead of to the remedies provided for by the Act, he did not ‘evict’ appellant from the leased premises,” stated in a footnote: No Pennsylvania appellate decision has addressed the question of self-help whether a landlord’s use of , rather than legal process, to evict a tenant may give rise to a cause of action in trespass by the tenant against the landlord. We note, however, that other jurisdictions have recognized such a cause of action. See, e.g., Mendes v. Johnson, 389 A.2d 781, 787 (D.C.App.) (1978) (“A tenant has a right not to have his or her possession interfered with except by lawful process, and violation of that right gives rise to a cause of action in tort.”); Malcolm v. Little, Del., 295 A.2d 711, 714 (1972) (“The right … not to have peaceable possession interfered with except by lawful process, [if violated] gives rise to [a] cause of action in tort.”) We note further that in Pennsylvania landlords have been self-help evictions enjoined from proceeding with on the basis that their exclusive remedy was an action in ejectment, or by summary process as -6- 06-6841 CIVIL TERM provided for by the Pennsylvania Landlord and Tenant Act, 68 Pa.C.S. et seq. 250.101 and the related Pennsylvania Rules of Civil Procedure for District Justices, 501-82. See Wofford v. Vavreck, 22 D. & C.3d 444, 450- 52 (1981), and authorities cited therein. (Emphasis added.) Peitzman v. Seidman, In 285 Pa. Super. 228 (1981), a tenant held over following the expiration of the term of a lease. The tenant then filed a complaint in equity to enjoin and restrain the landlord from refusing to renew their lease. The landlord filed preliminary objections to the complaint seeking a demurrer on the basis that the tenant had a full, complete, and adequate statutory remedy at law under the Landlord Tenant Act. A demurrer was entered and the Superior Court of Pennsylvania affirmed, stating “that the Landlord and Tenant Act of 1951, like its predecessors, provides a complete remedy at law . . . .” Turnway Corporation v. Soffer, Defendants cite 461 Pa. 447 (1975), in support of their contention that there are situations when a landlord may retake possession of a leased premises without first complying with the provisions of the Pennsylvania Turnway Landlord and Tenant Act of 1951. , however, involved an abandoned premises not a leased premises. The Supreme Court stated: “An abandonment of the premises by the tenant is a relinquishment which, as a matter of law, justifies immediate repossession by the landlord.” The noted commentator Ronald M. Friedman, in Pennsylvania Landlord-Tenant Law and Practice (Bisell supplemented into 2008), states: [t]he recent trend of court decisions has been that the landlord does not have the right to exercise the remedy of self-help repossession of the -7- 06-6841 CIVIL TERM leased premises, even when that right is reserved in the lease agreement. Several reasons for the denial of self-help remedies are advanced. First, the Landlord-Tenant Act is intended to be the sole source of rights, remedies and procedures for landlords and tenants, and nowhere in the Act is the right of self-help granted to either party. Second, though the right of self-help has not been denied by the Act, public policy considerations render self-help remedies illegal. Without self-help, the potential of violent confrontations may be avoided when the landlord takes steps to repossess the leased premises. Third, by permitting self- help remedies, the purpose of the tenant’s enforcement of the implied warranty of habitability would be thwarted. Based upon the trend of recent court decisions, it seems reasonably clear that the future of self- help eviction as a landlord’s remedy while the tenant continues to occupy the leased premises is in doubt. (Footnotes omitted.) * * * Seeking an injunction against a tenant may be appropriate when the tenant engages in conduct which poses an immediate threat of harm either to the leased premises or other tenants and their property and there is no adequate remedy through traditional means of a suit in assumpsit or for recovery of possession. For example, if the tenant engages in a hazardous activity such as the manufacture of explosives, or storage of toxic or radioactive materials at the leased premises, the landlord need not await an explosion or contamination before attempting to assert a remedy against the tenant. In such situations, the landlord may be able to enjoin the tenant’s conduct to remove the threat before damage occurs. Injunctions may also be used as a remedy when the tenant is laying waste to the leased premises or when the tenant is harassing other tenants. Injunctions could be considered appropriate for any situation where there is a potential of damage or injury and conventional legal remedies such as civil actions and suits for and recovery of possession are not adequate to protect the landlord because they cannot be implemented quickly. In the present case, defendants could have sought injunctive relief. It is also apparent that they could have contacted the Codes Enforcement Officer of the municipality in which Fairmont Park Apartments is located in order to have a -8- 06-6841 CIVIL TERM determination made as to whether plaintiff’s apartment posed a health hazard sufficient to warrant an administrative order barring his entry. After a review of all of the authorities, we are satisfied that as a matter of law defendants illegally exercised self- help in evicting plaintiff from his apartment. Accordingly, the following order is entered. -9- 06-6841 CIVIL TERM ORDER OF COURT IT IS ORDERED AND NOW, this day of May, 2008, that the motion of plaintiff for partial judgment on the pleadings as to liability on his count for breach of implied covenant of IS GRANTED. quite enjoyment (tort), By the Court, Edgar B. Bayley, J. Jeffrey C. Clark, Esquire For Plaintiff Jennifer A. Yankanich, Esquire For Defendants :sal -10- BRUCE B. KISLAN, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : LCL INCOME PROPERTIES, LP II : NEW YORK URBAN, INC., LCL : MANAGEMENT, LLC, AIMEE L. YORK : & SHERRI HOCKLEY, : DEFENDANTS : 06-6841 CIVIL TERM IN RE: MOTION OF PLAINTIFF FOR PARTIAL JUDGMENT ON THE PLEADINGS BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT IT IS ORDERED AND NOW, this day of May, 2008, that the motion of plaintiff for partial judgment on the pleadings as to liability on his count for breach of implied covenant of IS GRANTED. quite enjoyment (tort), By the Court, Edgar B. Bayley, J. Jeffrey C. Clark, Esquire For Plaintiff Jennifer A. Yankanich, Esquire For Defendants :sal