Appeal from the Order Entered July 22, 2011, in the Court of Common Pleas of Luzerne County Civil Division at No. 15509-2010
The opinion of the court was delivered by: Ford Elliott, P.J.E
NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND ALLEN, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Joseph R. Reisinger appeals the order of July 22, 2011, granting summary judgment in favor of Mid-County Resources, LLC and granting appellee possession of the premises in question. We affirm.
Appellant resides at 444 South Franklin Street in the city of Wilkes-Barre, with a law office on the first floor (appellant is a licensed attorney). At one time, appellant owned the property; however, on August 6, 2009, 444 South Franklin Street, along with other properties owned by appellant, were put up for judicial tax sale. Appellant's petition for reconsideration of the order authorizing the sale was denied.
At the August 26, 2009 tax sale, appellee was the high bidder on 444 South Franklin Street, and paid the amount of the bid and transfer tax.
However, according to appellee, the county tax claim bureau failed to turn over the deed to the property, causing a complaint in mandamus to be filed. On July 26, 2010, the court of common pleas ordered the tax claim bureau to supply appellee with the deeds to five properties, including 444 South Franklin Street. On July 28, 2010, the bureau transferred ownership of the property to appellee by way of a deed filed to Luzerne County Record Book 3010 page 153725.
On September 22, 2010, a representative of appellee, via hand-delivered correspondence, informed appellant that appellee was the owner of the property, that appellant was to pay appellee the sum of $1,000 per month in rent, that he was delinquent for the months of August and September 2010, and that if the rent was not paid by October 1, 2010, appellee would proceed to ejectment. Appellant failed to make any payment, and on October 6, 2010, appellee delivered a copy of a "Ten (10) Day Notice to Quit for Failure to Pay Rent Upon Demand," demanding that $3,300 be paid for rent and late payments and further that possession of the premises be delivered by October 16, 2010.
Subsequently, on October 20, 2010, appellee filed a landlord/tenant complaint seeking possession of the premises. On November 5, 2010, a magisterial district judge entered judgment for appellee in the amount of $4,689 and granted appellee possession of the premises. On November 15, 2010, appellant appealed the judgment to the court of common pleas, requesting that a rule be issued upon appellee to file a complaint within 20 days or be subject to judgment of non pros.
Appellee filed a complaint on November 30, 2010, containing counts for eviction and recoupment of money damages, trespass, and ejectment. On December 30, 2010, appellee sent 10-day notice of intent to take a default judgment. After more than 10 days elapsed with no response from appellant, on January 11, 2011, appellee filed a praecipe for default judgment, and praecipe for writ of possession, and judgment was entered for appellee.
Appellant filed a timely petition to open and/or strike default judgment which was granted. Appellant filed an answer to the complaint and new matter; appellee filed a reply to new matter. On June 6, 2011, appellant filed a motion for summary judgment with a supporting brief; on July 6, 2011, appellee filed its own motion for summary judgment together with a brief in opposition to appellant's motion for summary judgment and in support of appellee's motion for summary judgment. On July 22, 2011, the trial court denied appellant's motion for summary judgment, granted appellee's motion for summary judgment, and granted possession of the property to appellee effective September 1, 2011 (to allow appellant sufficient time to relocate). The trial court also entered judgment in favor of appellee for a sum equal to the amount of the rent (calculated at $1,000 per month) from September 22, 2010 to September 1, 2011, less any funds received from the escrow account. The trial court ordered the release of all funds held in escrow to appellee, and denied appellant's petition for a stay of execution. This timely appeal followed.*fn1
Our scope of review of a trial court's order disposing of a motion for summary judgment is plenary. Accordingly, we must consider the order in the context of the entire record. Our standard of review is the same as that of the trial court; thus, we determine whether the record documents a question of material fact concerning an element of the claim or defense at issue. If no such question appears, the court must then determine whether the moving party is entitled to judgment on the basis of substantive law. Conversely, if a question of material fact is apparent, the court must defer the question for consideration of a jury and deny the motion for summary judgment. We will reverse the resulting order only where it is established that the court committed an error of law or clearly abused its discretion.
Grimminger v. Maitra, 887 A.2d 276, 279 (Pa.Super.2005) (quotation omitted). "[Moreover,] we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party." ...