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[U] Duncan v. Farabaugh

Superior Court of Pennsylvania

November 19, 2013

JACK DUNCAN AND JEFF DUNCAN, Appellees
v.
RONALD FARABAUGH AND KAY FARABAUGH, Appellants

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered March 8, 2013, In the Court of Common Pleas of Allegheny County, Civil Division, at No. LT-12-000827.

BEFORE: FORD ELLIOTT, P.J.E., GANTMAN and SHOGAN, JJ.

MEMORANDUM

SHOGAN, J.

Pro se Appellants, Ronald and Kay Farabaugh, appeal from the judgment entered in favor of Jack Duncan and Jeff Duncan ("Landlord").[1]We affirm.

The trial court set forth the history of this case as follows:

This landlord-tenant dispute came before the Court as an appeal from the compulsory arbitration system in the Court of Common Pleas of Allegheny County. The matter was heard de novo by the Court sitting without a jury. The dispute arose from the claim by plaintiff-landlord Duncan for possession, unpaid rent and damages. Duncan's claim for possession asserted both that the lessees, Mr. and Mrs. Farabaugh, were substantially in arrears on rent payments and that they had violated explicit restrictions set forth in the written lease the parties had mutually executed. Among the lease violations asserted by Duncan were unapproved alterations of the property, possession of pets on the property and barring inspections of the property by the landlord. The lease term was one year, expiring on February 1, 2013.
The Farabaughs responded that the inspections attempted by Duncan were excessive to the point of denying the tenants peaceful possession of the leased premises, that the premises were rendered uninhabitable by Duncan's failed maintenance, and that Duncan had understood and agreed that the Farabaughs could keep a dog on the property. The Farabaughs demanded both possession and a rent reduction.
By non-jury verdict dated January 23, 2013, the Court found in favor of Duncan and against the Farabaughs on the matter of possession. More specifically, the written verdict awarded possession to Duncan based upon the Farabaughs' breach of lease conditions. The Court additionally found, and the verdict reflected, that the Farabaughs had failed to pay $4, 800.00 in rent. Accordingly, Duncan was awarded that amount.
Considerable docket activity occurred subsequent to the verdict, including an appeal from the non-jury verdict and an appeal from this Court's denial of the Farabaughs' motion for post-trial relief. Presently, the Farabaughs' appeal is predicated solely on the non-jury verdict; an amendment to the notice of appeal having been filed pursuant to a March 15, 2013 instruction from the Superior Court to the effect that a separate appeal must be filed for each Order of Court in dispute. To this Court's knowledge, the Farabaughs have not separately appealed the denial of the motion for post-trial relief.
Of course, an appeal cannot properly be taken directly from a non-jury verdict, an observation made by Duncan during the course of arguments regarding the Farabaughs' request for supersedeas. The verdict, however, was reduced to judgment on March 8, 2013, and, for that reason, the better course would seem to be to provide an opinion notwithstanding Duncan's contention that no proper appeal has been taken. Pa.R.A.P. 301, 902.

Trial Court Rule 1925(a) Opinion, 4/30/13, at 2-3.

On appeal, Appellants present fourteen questions, which we reproduce verbatim, as follows:

1. Did the Appellee have the right to evict and terminate the Lease for 3910 Meadowbrook Blvd. 15227
2. Did the Appellee provide habitable living conditions for the Appellants and allow the Appellants peaceful enjoyable living conditions?
3. Did the Appellee use Forcible measures in an effort to forcibly remove the Appellants?
4. Did the Appellee by way of Attorney Michael Fives Prematurely file Judgment on Verdict?
5. Did the Appellee by way of Attorney Michael Fives Prematurely file Writ of execution and Writ of Possession?
6. Was the Monies filed with the Writ of Execution correct?
7. Did the Appellants have a Supersedeas in Place at The Department of Court Records?
8. Should the Appellants be granted a Rent Reduction?
9. Should the Appellants be reimbursed for all the property retained by Sheriff Decker for the incorrect amount?
10. Should the Appellants be granted Punitive Damages?
11. Did the Appellee fraudulently have the Appellants pay Water and Sewage?
12. Should the Appellants be reimbursed for ½ of Water & Sewage Bill?
13. Did the Appellee fraudulently retain the Appellants Security Deposit?
14. Did the Trial Court commit a manifest abuse of discretion in entering a non-jury verdict in favor of Appellee and Against Appellants?

Appellants' Brief at 8–9 (unnumbered pages).

Essentially, Appellants' fourteen questions challenge the validity of the non-jury verdict entered against them. Our standard and scope of review in an appeal from a non-jury verdict are well settled:

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 a 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.
Rissi v. Cappella, 918 A.2d 131, 136 (Pa.Super.2007) (citation omitted). "We will respect a trial court's findings with regard to the credibility and weight of the evidence unless the appellant can show that the court's determination was manifestly erroneous, arbitrary and capricious or flagrantly contrary to the evidence." Ecksel v. Orleans Const. Co., 360 Pa.Super. 119, 519 A.2d 1021, 1028 (1987) (citation omitted).

J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 410 (Pa.Super. 2012).

Initially, we are compelled to remind Appellants that, as pro se litigants, they are not entitled to any particular advantage because they lack legal training. Kovalev v. Sowell, 839 A.2d 359, 367 n.7 (Pa.Super. 2003). For example, Appellants' pro se status does not change the requirements regarding appellate procedure. Manack v. Sandlin, 812 A.2d 676, 683 (Pa.Super. 2002) (citation omitted). Furthermore, any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing. Kovalev, 839 A.2d at 367 n.7 (citing Rich v. Acrivos, 815 A.2d 1106, 1108 (Pa.Super. 2003)).

Here, Appellants' pro se brief falls woefully short of the requirements set forth in Chapter 21 of the Pennsylvania Rules of Appellate Procedure. Specifically, Appellants' statement of the scope of review and the standard of review does not provide either; it is merely argument. Also, Appellants' argument section does not comply with Pa.R.A.P. 2119(a), in that it is not "divided into as many parts as there are questions to be argued" and does not have "at the head of each part—in distinctive type or in a type distinctively displayed—the particular part treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Rather, Appellants' argument section is an attempt to re-litigate their case with bald assertions regarding their version of events. In further violation of Rule 2119(b), (c), (d), and (e), Appellants' brief lacks developed argument, citations to legal authority, and an analysis of the facts and relevant law.

Proceeding despite the deficiencies in Appellants' brief and viewing the evidence in the light most favorable to Landlord, as we must, we conclude that the findings of the trial court are supported by competent evidence and that the trial court did not err in applying the law. Thus, we discern no basis to disturb the non-jury verdict.

Appellants first argue that Landlord did not have the right to evict them and terminate their lease. Deferring to the trial court's determination that Appellants were not credible, we disagree. Before entering into the lease, Landlord advised Appellants that pets were not allowed. N.T., 1/22/13, at 6. The written lease prohibited pets without written consent. Id. at 14–15, Exhibit 2 (¶ 14). Appellants had a dog without written consent. Id. at 14–15, 35, 51, 71. Moreover, the written lease required monthly rent of $800.00. Id. at 17, Exhibit 2. Appellants did not pay the rent. Id. at 17–18, 63. Additionally, the written lease required Appellants to pay utilities. Id. at 12–13, 58, Exhibit 2 (¶ 24). Appellants did not pay utilities. Id. at 13, 58–58. The written lease also required Appellants to maintain and repair the property. Id. at 13–14, Exhibit 2 (¶ 13). Appellants did not maintain and repair the property. Id. at 15–16, 41–42, 48–51, 54, 60–62. Based on this record, therefore, we conclude Appellants are not entitled to relief.

Next, Appellants argue that Landlord did not provide habitable living conditions or allow them peaceful enjoyment. The trial court found otherwise:

Testimony from the building code officer for the Borough of Brentwood, in which the leased property is situated, testified that he had inspected the property in December 2011, found no violations and had issued an occupancy permit. . . . From all that had been presented by way of testimony and exhibit, a finding could not be made that [Landlord] had caused the premises to deteriorate to a condition of uninhabitability [sic].

Trial Court Rule 1925(a) Opinion, 4/30/13, at 5. The record supports the trial court's findings. N.T., 1/22/13, at 38–40. Appellants' contrary claim lacks merit.

Appellants' third assertion is that Landlord used forcible measures to remove them. As the trier of fact, however, the trial court determined that "[t]he record in this matter failed to establish any basis for a verdict in favor of [Appellants]." Trial Court Opinion, 4/30/13, at 6. Deferring to the trial court's credibility determinations and based on the certified record, we discern no evidence of forcible measures being used against Appellants and, therefore, no basis to grant Appellants relief on their third issue

In their fourth issue, Appellants argue that Landlord's counsel prematurely filed judgment on the verdict because they had "30 days to file an appeal to the Superior Court after the filing of the Post Trial Denial and they were not given the time to file." Appellants' Brief at 18 (unnumbered pages). Appellants are incorrect. The non-jury verdict was entered on January 23, 2013. Appellants filed post-trial motions on January 29, 2013, which, following a hearing, the trial court denied on March 6, 2013. Landlord reduced the non-jury verdict to judgment on March 8, 2013. Appellants filed a timely notice of appeal on March 13, 2013, within the thirty-day period. As stated above, an appeal lies properly from the entry of judgment after the trial court disposes of post-verdict motions, not from the verdict or an order denying post-trial motions. Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa.Super. 1995). We discern no procedural error. Thus, Appellants are not entitled to relief on this issue.

Appellants' fifth issue challenges Landlord's filing of a writ of possession while their supersedeas was pending. However, Appellants' argument is based on a misapprehension of procedure. Having reduced the non-jury verdict to judgment on March 8, 2013, Landlord filed a writ of possession for the property and a writ of execution for the monetary award on March 11, 2013. Appellants filed their notice of appeal on March 13, 2013. In response to Landlord's writs, Appellants filed a pleading entitled "Motion for Emergency Relief from Writ of Possession and Writ of Execution and Application to Proceed with Supersedeas and Stay Pending Appeal" on March 27, 2013. The trial court denied Appellants' motion by memorandum and order, addressing the supersedeas issue as follows:

[Appellants] argue, in part, that an existing supersedeas, which they assert was granted in September 2012, never been [sic] terminated and precludes [Landlord] from execution on any judgment. Presumably, the supersedeas relied upon by [Appellants] is the September 25, 2012 Order of Court entered by Judge Hertzberg. That Order, however, prohibited [Landlord] from entering the leased premises pending outcome of the litigation. The non-jury verdict explicitly awarded possession to [Landlord] for breach of lease conditions by [Appellants]. Judge Hertsberg's Order did not survive the non-jury verdict.
To the extent [Appellants] rely upon any supersedeas pursuant to the rules of civil procedure regarding appeals from a district judge, their reliance is misplaced inasmuch as, the rent is acknowledged to have been in arrears and, in any event, the writ of possession was not based solely on failure to pay rent due. See, e.g. Johnson v. Bullock-Freeman 2013 PA.Super. 16.
[Appellants'] contention that [Landlord is] precluded from any execution pending an appeal has nonetheless been considered and rejected. The lease has expired. Moreover, [Appellants] have failed to post bond, a pre-requisite to supersedeas.
It should be added that, unfortunately, averments made by [Appellants] simply lack credibility. They refuse, for example, to acknowledge the term of the lease has expired, the failure to pay into escrow, and other matters that are indisputable.

Trial Court Opinion, 3/27/13, at 3.

Pennsylvania Rule of Appellate Procedure 1733 sets forth the "Requirements for Supersedeas on Agreement or Application" as follows:

(a) General rule. An appeal from an order which is not subject to Rule 1731 (automatic supersedeas of orders for the payment of money) shall, unless otherwise prescribed in or ordered pursuant to this chapter, operate as a supersedeas only upon the filing with the clerk of the court below of appropriate security as prescribed in this rule. Either court may, upon its own motion or application of any party in interest, impose such terms and conditions as it deems just and will maintain the res or status quo pending final judgment or will facilitate the performance of the order if sustained.

Pa.R.A.P. 1733(a) (emphasis supplied).

Upon review of the record and Rule 1733(a), and deferring to the trial court's credibility determination, we discern no error in the trial court's assessment and disposition of Appellants' challenge. The trial court awarded Landlord possession of the leased premises, and Appellants failed to obtain a valid supersedeas to stay execution of the judgment for possession. Thus, Appellants are not entitled to relief.

Turning to questions six through ten, we note that Appellants present an array of words and phrases, which amount to bald, unsustainable assertions. Upon review, we conclude that questions six through ten are waived because Appellants' discussion of those issues is "so substantially truncated as to deprive us of grounds for review." Creazzo v. Medtronic, Inc., 903 A.2d 24, 28 (Pa.Super. 2006) (citing Pa.R.A.P. 2101, 2119(a), and Borough of Mifflinburg v. Heim, 705 A.2d 456, 467 (Pa.Super. 1997)).

Appellants' eleventh and twelfth issues allege that Landlord wrongly held them responsible for the entire water and sewage bill. According to Appellants, because they rented only one-half of the duplex, but the meter was for the entire duplex, they were entitled to judgment on their counterclaim for one-half of the water and sewage bill. In the context of this case, we disagree.

The relevant rule of civil procedure provides that a "defendant may set forth in the answer under the heading 'Counterclaim' any cause of action cognizable in a civil action which the defendant has against the plaintiff at the time of filing the answer." Pa.R.C.P. 1031(a). Here, the trial court stated, "No counterclaim was filed to [Landlord's] complaint." Trial Court Opinion, 4/30/13, at 4. The record confirms that Appellants did not set forth in their answer to Landlord's complaint a counterclaim for one-half of the money they paid for water and sewage pursuant to Rule 1031(a). Rather, they included a "Counter-claim Made by the Defendants" in their pretrial statement. Pre-trial Statement, 1/15/13, at 4-6. Appellants' filing does not comport with Pa.R.C.P. 1031. Thus, Appellants are not entitled to relief.

Next, we observe that Appellants' last two issues, concerning Landlord's retention of their security deposit and the trial court's entry of a verdict against them, do not appear in the argument section of their appellate brief. Hence, the issues are abandoned. See Sternlicht v. Sternlicht, 822 A.2d 732, 736 n.3 (Pa.Super. 2003) (treating as abandoned issue properly preserved but not presented in appellate brief).

Finally, we address Appellants' "Motion of Objection to Official Transcript, " which they filed in this Court on May 31, 2013. Therein, Appellants objected to discrepancies between the written requests for the official January 22, 2013 and March 4, 2013 transcripts and the actual transcripts regarding the names of the court reporters. Additionally, Appellants complain that there are "many little statements that are incorrect" in the March 4, 2013 transcript. Motion, 5/31/13. Therefore, Appellants "object to the transcripts be [sic] entered into the Record." Id.

We reject Appellants' motion for two reasons. First, Appellants have failed to establish any prejudice caused by the fact that the name of the court reporter on the transcript requests differs from the name of the court reporter on the actual transcripts. Our review of the certified record confirms that the January 22, 2013 and March 4, 2013 transcripts contain the notes of testimony from the non-jury trial and the post-trial hearing, respectively, notwithstanding any error in the name of the court reporter identified on the paperwork. Second, Appellants have failed to identify what, if any, discrepancies exist in the March 4, 2013 transcript, and what, if any, prejudice resulted from the discrepancies. Hence, no relief is due.

In sum, we discern no error in the trial court's verdict and no merit to Appellants' objection to the transcripts. Thus, we affirm the judgment entered in favor of Landlord, and we deny Appellants' motion.

Judgment affirmed.

Motion of Objection to Official Transcript denied.

Judgment Entered.


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