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G & G Investors, LLC v. Phillips Simmons Real Estate Holdings, LLC

Superior Court of Pennsylvania

April 4, 2018

G & G INVESTORS, LLC Appellant
v.
PHILLIPS SIMMONS REAL ESTATE HOLDINGS, LLC 1262 POINT BREEZE AVENUE PHILADELPHIA, PA 19146 OPA/BRT: 871167750 Appellee

          Appeal from the Order Entered July 18, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2016 No. 1599

          BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J. [*]

          OPINION

          GANTMAN, P.J.

         Appellant, G & G Investors, LLC, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying Appellant's petition for a conservator of real property owned by Appellee, Phillips Simmons Real Estate Holdings, LLC 1262 Point Breeze Avenue Philadelphia, PA 19146 OPA/BRT: 871167750. We affirm.

         The relevant facts and procedural history of this case are as follows. Appellee owns an unoccupied building in Philadelphia, Pennsylvania ("Property"). On February 10, 2016, Appellant filed a petition pursuant to the Abandoned and Blighted Property Conservatorship Act, 68 P.S. § 1101, et seq. ("Act 135"), seeking to be appointed conservator of the Property. The court dismissed Appellant's petition without prejudice for procedural defects on March 11, 2016. On March 17, 2016, Appellant filed an amended petition for appointment of conservator. The court issued an order on March 21, 2016, to show cause and scheduled a hearing on Appellant's amended petition. On April 19, 2016, Appellant filed a petition for authorization to inspect the Property's interior. Appellee filed an answer and new matter to the amended petition, and Appellant filed a reply to new matter.

         On July 13, 2016, the court conducted a proceeding, at which both parties gave opening statements and presented testimony and other evidence, including photographs of the Property. The trial court opinion summarized the hearing as follows.

[Appellant] first offered testimony from David Feldman who was qualified as an expert as a realtor licensed in Pennsylvania and as a licensed architect. Mr. Feldman testified that he inspected the exterior of the Property and found certain deficiencies such as the building's "brick work appears to be pulling away from the building" ([N.T. Hearing, 7/13/16, at] 21); the boarded second-floor window was installed improperly, resulting in "a very large opening for [both] birds to get in and rain" ([Id. at] 25); looking through the windows of the first floor he saw debris and mouse or rat droppings. ([Id. at] 26-27). Mr. Feldman later qualified his testimony, stating he was not certain that what he saw were animal droppings. ([Id. at] 41). The photos of the Property presented by [Appellant] and identified by Mr. Feldman did not reflect an exterior of an "abandoned and blighted" property.
Lastly, Mr. Feldman testified that the condition of the Property has a negative effect on neighbors. By his own admission, Mr. Feldman drew his conclusion based on "generalities" and did not speak to any neighbors on the block or the surrounding area. ([Id. at] 31). He did not testify as to the specific effect the alleged conditions of this Property had on the surrounding neighborhood, such as reduction in value, or inability to obtain insurance.
[Appellant]'s second witness was Mariano Mattei. Mr. Mattei's father owns [real property] located next to and abutting the Property at issue. His property is being renovated for use as a pizza shop but was not in operation as of the hearing. Mr. Mattei testified that [he] believed his property sustained water damage due to the conditions of the Property in question. However, when asked "what facts do you have to establish that the water you're testifying to today comes from [the Property]", Mr. Mattei admitted, "I have no facts." ([Id. at] 56). …
[Appellant]'s third witness was Anthony Gioielli, co-owner of [Appellant]. Mr. Gioielli testified that he'd seen the back door to the Property unsecured. ([Id. at] 62). Although Mr. Gioielli identified a photo of the back door which appeared to be open1, Mr. Mattei stated he never saw the back door open as it was in the photo. ([Id. at] 53). [Mr. Gioielli] further testified that he had seen people throw trash into the gated front entrance ([Id. at] 63), however none of the photos offered into evidence by [Appellant] reflected trash in the area in question. The front of the Property appeared secured with gates covering large glass display windows. Th[e Property] appeared to be a corner commercial [p]roperty with glass display windows on both sides of the corner front entrance. Finally, Mr. Gioielli admitted that he had approached [Appellee] prior to filing this action and offered to buy the Property. ([Id. at] 68). Mr. Gioielli testified that he owned properties in [the] area, he was an investor that "flipped" properties and that this Property had affected his investment properties. He was not specific as to how these properties were affected.
1 Exhibit P-1H shows the back door to the Property open. The integrity of the door is not compromised, and there appears to be a lock-box attached to the doorknob. There is no indication from the photo that the Property is subject to unauthorized entry.
[Appellee]'s first witness was Lionel Simmons, co-owner of [Appellee]. Mr. Simmons testified that [in] 2009 he obtained a permit from the City of Philadelphia to make repairs on the Property and started work on new stairs, and repair and replacements of joists. ([Id. at] 76). He admitted that at some point he stopped work due [to] a legal dispute that arose with a co-owner which could have clouded the title. Mr. Simmons testified that currently the Property is "gutted out", with the electric and plumbing removed. ([Id. at] 77). [Appellee] introduced photographs of the interior to show the status of the Property renovations and were consistent with [Mr. Simmons'] description that the Property had been "gutted out." …
[Appellee]'s second witness was Christopher Sample, chief of staff to District Councilmember Kenyatta Johnson. Mr. Sample confirmed that the Councilman's office had not received any complaints about the Property, which is located in his district.
At the conclusion of testimony, [Appellee] moved to dismiss the action due to [Appellant]'s failure to satisfy the requirements of [Section] 1105 of [Act 135]. [Appellant] requested that the court first allow an interior inspection of the Property pursuant to [its] Petition to Inspect. The court denied [Appellant]'s request and granted [Appellee]'s oral [m]otion to dismiss or deny the [p]etition.

(Trial Court Opinion, filed December 28, 2016, at 2-4, unpaginated).

         On July 14, 2016, the court issued an order denying Appellant's amended petition, with notice to the parties on July 18, 2016. Appellant filed no post-trial motion. Appellant did file a timely notice of appeal on August 17, 2016. The court ordered Appellant on August 19, 2016, to file a concise statement of errors complained of appeal per Pa.R.A.P. 1925(b); Appellant timely complied on September 9, 2016.

         Appellant raises three issues for our review.

[WHETHER] THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING APPELLANT'S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION OF THE PENDING PETITION ACTION PURSUANT TO 68 P.S. [§] 1101 ET SEQ., [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO VERMIN OR DEBRIS IN THE PREMISES AND AFTER HEARING IT DETERMINED THAT TWO OF THREE REQUIRED CRITERIA WERE MET[?]
[WHETHER] THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION OF THE PENDING PETITION ACTION PURSUANT TO 68 P.S. [§] 1101, ET SEQ., [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO ...

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