J-A07012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NINETY GAYLE AVENUE TRUST, JAN                   IN THE SUPERIOR COURT OF
ONDRA, TRUSTEE,                                        PENNSYLVANIA

                         Appellant

                    v.

S-2 PROPERTIES, 831 SLEEPY HOLLOW
RD., STE. E., PITTSBURGH, PA 15234,

                         Appellee                     No. 1841 WDA 2014


              Appeal from the Order Entered October 10, 2014
            In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2014-1625



BEFORE: BOWES, MUNDY AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                                FILED JULY 15, 2016

      Ninety Gayle Avenue Trust, Jan Ondra, Trustee, appeals the trial

court’s ruling that it must pay for rental owed with respect to a trailer that it

owns before it can take possession of that item. We affirm.

      Appellant instituted this action by filing a petition seeking issuance of a

rule to show cause directed to S-2 Properties located at 831 Sleepy Hollow

Road Ste E, Pittsburgh, PA 15234, as to why Appellant was not entitled to

immediate possession of a mobile home with a vehicle identification number

CHPA3892A8. It claimed the following. Appellant acquired title to the trailer

from LotsOfRealty.com on June 28, 2010.           The trailer in question was

located on land owned by Appellee, which owns a trailer park. The trailer
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had previously been occupied by Shari Cox, so Appellant instituted an action

to eject her on October 4, 2012.     The record indicates that the ejectment

complaint was not served in that the mobile home already was vacant.

      On March 17, 2014, Appellant went to the mobile home and

discovered that it was posted with a court order indicating that it could not

be entered.    Appellant discovered that, in a prior action instituted by

Appellee against Ms. Cox, Appellee had obtained a judgment for unpaid rent

that Ms. Cox owed while she was residing in the trailer.         The $1,720.20

judgment was entered on August 9, 2012, and, on September 26, 2012, the

same court issued an order of possession in favor of Appellee.

      Appellee responded to the rule by noting that the order granting it

possession was not appealed. Appellee further observed that it owned the

land upon which the mobile home was located, that Ms. Cox, when she lived

there, did not pay $1,720.20 in rental due for parking the trailer on its

property and that, after it obtained title to the trailer, Appellant likewise did

not pay rent to Appellee. Appellee presented a statement indicating that it

was owed $7,223.60 in rental fees. Since Appellee had an order granting it

possession and was owed rent, Appellee averred that Appellant could not

remove the trailer.

      After a hearing, the trial court denied Appellant’s rule.    It concluded

that Appellee had a possessory lien against the trailer and that Appellant

would be unjustly enriched if it was permitted to take possession of the

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mobile home without satisfaction of the unpaid rent. The court opined that

Appellee was entitled to payment for unsatisfied rental fees before Appellant

could remove its mobile home from Appellee’s real estate.            This appeal

followed.1 Appellant raises these issues on appeal:

             1. The trial court erred or abused its discretion in finding
       that S-2 Properties possessed a lien interest in the Petitioner[’s]
       mobile home.

             2. The trial court erred or abused its discretion in finding
       that Petitioner was responsible for rental payments and lot fees,
       particularly if owed Respondent by a former tenant.

Appellant’s brief at 1.

       We first must ascertain the appropriate principles to apply in this

matter. Appellant instituted this lawsuit by filing a petition for rule to show

cause; however, in that petition, Appellant was seeking to establish its title

to the mobile home in question.            Hence, this case is in the nature of a

replevin action, which a plaintiff brings to demonstrate his right to take

possession of personal property.          Wilson v. Highway Serv. Marineland,

418 A.2d 462, 464 (Pa.Super. 1980) (“The gist of the action of replevin is to

try the title to the chattels in question and the plaintiff's right to their



____________________________________________


1
  We note that “A motion for post-trial relief may not be filed to matters
governed exclusively by the rules of petition practice.” Comment, Pa.R.C.P.
227.1(c).




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immediate possession.”).2 “To be successful in a replevin action, the plaintiff

must show not only title, but also the exclusive right of immediate

possession of the property in question. ‘Exclusive’ right of possession means

only a right which excludes the defendant.           Thus, a plaintiff in a replevin

action must show good title and right to possession as against the

defendant, but is not required to set up such a title or right as against the

whole world.” Ford Motor Credit Co. v. Caiazzo, 564 A.2d 931, 933

(Pa.Super. 1989) (citations omitted).          Under Pa.R.C.P. 1082(a), “a claim to

possession based upon a lien on the property in question in a replevin action

may properly be set forth as a counterclaim in the replevin action.” Id.

       In connection with its first contention, Appellant maintains that the

trial court incorrectly concluded that Appellee had a possessory lien in the

mobile home pursuant to 72 P.S. § 5971i,3 which provides that a tax sale

____________________________________________


2
  No one has challenged the parties’ failure to abide by the rules of civil
procedure applicable to replevin actions. Due to the highly unusual manner
in which this action was instituted and proceeded, we have carefully limited
our analysis to a discussion of the merits of the precise issues raised in this
appeal.
3
    That provision pertains to tax sales and states:

       No sale shall be valid where the taxes and interest have been
       paid prior to said advertisement, or where the taxes, interest,
       and costs have been paid after advertisement and before sale, or
       when such taxes are not legally due and collectible. Every such
       sale shall discharge the lien of every obligation, claim, lien or
       estate with which said property may have or shall become
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      charged, or for which it may become liable, except no such
      sale shall discharge the lien of any ground rent, municipal
      claim or tax remaining unpaid or mortgage which shall have
      been recorded before such taxes became liens, by return and
      docketing, as herein provided, and which is or shall be prior to
      all other liens, except other mortgages, ground rents, municipal
      claims, and/or other taxes. Any real estate sold under this act
      may be redeemed by the owner, his heirs or legal
      representatives, or by any lien creditor, or his heirs, assigns or
      legal representatives, or by anyone interested in said real estate
      for the benefit of the owner thereof, at any time within two years
      after such sale, by the payment to the county treasurers of the
      full amount which the purchaser paid to said treasurer for taxes,
      interest, and costs and fifteen per centum of the amount of tax
      in addition thereto. In case the purchaser has paid any taxes of
      any kind whatsoever, assessed and levied against said property,
      the same shall be reimbursed to said purchaser before any
      redemption shall take effect. No sale of seated lands for taxes,
      under the provisions of this act, shall be prejudiced or defeated
      by proof that there was personal property to be found on the
      premises sufficient to pay the taxes assessed thereon, nor shall
      such sale be prejudiced by reason of the fact that such lands so
      assessed as seated lands were at the time unseated.

      When any real estate is so sold, no lien whatsoever against such
      real estate shall be deemed to be discharged during the period
      for redemption; but if such real estate is not redeemed, then all
      liens against the same, except such liens as are hereinbefore
      specifically saved, shall be deemed to be discharged from the
      date that the right of redemption expired.

      When any real estate is so redeemed by a lien creditor, or his
      heirs, assigns or legal representatives, or by any person
      interested for the benefit of the owner, the county treasurer
      shall issue to the person redeeming such real estate a
      certificate, stating the fact of such redemption, a brief
      description of the real estate redeemed, and the amount of the
      redemption money paid, which certificate may be entered in the
      office of the prothonotary of the county as a judgment against
      the owner of the real estate for the amount stated therein. The
(Footnote Continued Next Page)


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does not discharge a ground rent lien. Appellant observes that Appellee did

not obtain title to the mobile home through a tax sale and that Appellee was

not owed ground rent. We agree that the trial court should not have relied

upon this statute. First, the mobile home was not purchased at a tax sale.

Moreover, this action, contrary to Appellee’s position, simply does not

involve ground rent. Ground rent is defined as follows:

              In Pennsylvania ground rent is a “perpetual rent reserved
      to himself and his heirs, by the grantor of land in fee-simple,
      out of the land conveyed. It is in the nature of an emphyteutic
      [, i.e., in rem] rent.” Black's Law Dictionary (4th ed. 1968). Our
      Supreme Court, in Pronzato v. Guerrina, 400 Pa. 521, 163
      A.2d 297 (Pa. 1960), has further defined ground rent as: “an
      incorporeal hereditament an interest in land distinct and
      separate from the land out of which it issues. A ground rent is
      created when the owner of land conveys his whole estate in fee
      simple to another, reserving for himself a rent service; the
      grantor has the ground rent estate and the grantee the
      ownership of the land subject to payment of the ground rent.

Treasure Lake Prop. Owners Ass'n, Inc. v. Meyer, 832 A.2d 477, 482-

83 (Pa.Super. 2003) (citation omitted). In this case, Appellee did not sell

the lot in fee reserving for itself a rent service fee. Instead, it owned the

land and leased it for purposes of parking a mobile home on it.


                       _______________________
(Footnote Continued)

      lien of any such judgment shall have priority over all other liens
      against such real estate except such liens as would not have
      been discharged had no redemption been made.

72 Pa.C.S. § 5971i.




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       Despite the use of inappropriate legal precepts by the trial court and

Appellee, we note that Appellant instituted this case incorrectly by petition

for rule to show cause in lieu of a complaint raising a replevin cause of

action. Further, even though § 5971i is inapplicable, there is ample record

support for the trial court’s finding that Appellee obtained a possessory lien

against the mobile home.4          Appellant openly acknowledges that Appellee

obtained a judgment for unpaid rent against the former occupant of the

trailer, Sharon Cox, Appellee’s Exhibit 4, and it is not subject to question

that Appellee obtained an order for possession.            Appellee’s Exhibit 5

(entering a “judgment for possession” in favor of Appellee on September 26,

2012).

       Recognizing the existence of the judgment and order of possession,

Appellant asserts that it has the immediate right to exclusive possession of

the trailer by maintaining that the order of possession expired by its own

terms because Appellee took “no further action to evict or take possession of

the mobile home.”        Appellant’s brief at 10.   Appellant fails to quote the

language in the order of possession upon which it premises its position that

the order expired. Our independent review of the order indicates that the

order of possession states that the grant of possession was premised upon
____________________________________________


4
   It is settled that an appellate court can affirm on any basis. Prieto Corp.
v. Gambone Const. Co., 100 A.3d 602 (Pa.Super. 2014).




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the money judgment not being satisfied by the time of eviction. Appellant

thus suggests that, pursuant to this language, since Ms. Cox never was

evicted, the order for possession expired.

       We disagree with this position.         The record establishes that Ms. Cox

already had vacated the premises by the end of September, 2012, as

evidenced by the fact that Appellant’s own complaint in ejectment against

Ms. Cox could not be served in October 2012 because the mobile home was

vacant. Appellant’s Exhibit 1. Thus, Appellee did not have to proceed with

eviction. The money judgment was not satisfied when Ms. Cox voluntarily

abandoned the premises.          Since the money judgment was not satisfied at

any point and since the matter did not proceed to eviction, the language in

the order of possession was never implicated, and the order of possession

remained undisturbed. Additionally, Appellant’s claim that Appellee took no

further action to take possession of the mobile home is misguided. Appellee

already had possession of the mobile home since it was located on its land.

Appellee also posted the trailer with a court order stating that it could not be

entered. As there is record support for the trial court’s determination that

Appellee had a possessory lien with respect to the mobile home, the trial

court did not abuse its discretion in so concluding.5

____________________________________________


5
   Appellant maintains that Appellee was required to place the trailer in
storage after it was vacated. Appellant’s brief at 11. It relies upon the
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

Manufactured Home Community Rights Act, 68 P.S. 250.101, et seq. (the
“Act”). However, the section of the Act relied upon by Appellant has been
repealed. See 68 P.S. § 250.505 (Repealed by 2012, Oct. 24, P.L. 1267, No.
156, § 3(2), effective in 60 days [Dec. 24, 2012]). Instead, the Act does
not mandate that a vacant trailer be placed in storage; it merely permits
the owner of the real estate to take that action:

      (a) If a resident abandons a manufactured home, the
      manufactured home community owner or other authorized
      person may:

             (1)(i) enter the manufactured home and secure any
             appliances, furnishings, materials, supplies or other
             personal property in the manufactured home;

             (ii) disconnect the manufactured home from any
             utilities; and

             (iii) otherwise exercise ordinary care in relation to
             the manufactured home and personal property,
             including promptly disposing of perishable food and
             contacting an animal control agency or humane
             society to remove any abandoned pets.

             (2)(i) Move the manufactured home, any
             personal property inside the manufactured
             home and personal property located within the
             manufactured      home    community       that  is
             believed to belong to the resident to a storage
             area within the manufactured home community or
             to another location deemed necessary and proper
             without the requirement of obtaining a removal
             permit for the manufactured home from the local
             taxing authority which would otherwise be required
             under 53 Pa.C.S. § 8821(d) (relating to assessment
             of mobile homes and house trailers). Prior to
             moving the manufactured home and personal
             property, the community owner shall notify the
             former manufactured home resident by mail and by
             posting on the manufactured home and at any other
(Footnote Continued Next Page)


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      Appellant also challenges the trial court’s alternative conclusion that

Appellant, under the doctrine of unjust enrichment, was required to satisfy

unpaid rent before acquiring the mobile home.

          The elements of unjust enrichment are benefits conferred on
      defendant by plaintiff, appreciation of such benefits by
      defendant, and acceptance and retention of such benefits under
      such circumstances that it would be inequitable for defendant to
      retain the benefit without payment of value. Whether the
      doctrine applies depends on the unique factual circumstances of
      each case. In determining if the doctrine applies, we focus not
      on the intention of the parties, but rather on whether the
      defendant has been unjustly enriched.

      Moreover, the most significant element of the doctrine is
      whether the enrichment of the defendant is unjust.

Joyce v. Erie Ins. Exch., 74 A.3d 157, 169 (Pa.Super. 2013) (emphasis in

original; citation omitted).

      In this case, the allegations in Appellant’s complaint in ejectment

against Ms. Cox, which is an exhibit of record, establish that Appellant was

fully aware that the mobile home was located on land owned by Appellee.

Cf. State Farm Mut. Auto. Ins. Co. v. Jim Bowe & Sons, Inc., 539 A.2d
                       _______________________
(Footnote Continued)

             known address or by any other means by which
             notice may be achieved. The notice shall state that
             the manufactured home and personal property, if
             applicable, will be moved 60 days after the date of
             notice and shall inform the former resident of the
             new location of the manufactured home and
             personal property.

68 P.S. § 398.10.2 (emphases added).




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391 (Pa.Super. 1988) (owner of chattel not responsible for storage fees

under doctrine of unjust enrichment when fees were incurred prior to time

owner became aware of location of stored item). After it acquired title to the

mobile home in June 2010, Appellant did not make any effort to ascertain

whether Ms. Cox actually was satisfying her rental obligations. Then, as of

October 2012, Appellant knew that Ms. Cox had vacated the trailer as the

sheriff’s return for its unserved ejectment complaint set forth that fact.

Thereafter, Appellant did not have any reason to believe that Ms. Cox was

paying rent. It did not, from October 2012 to April 2014, when it instituted

this lawsuit, attempt to satisfy all the rent accruing after Ms. Cox left the

property.   Thus, the trial court did not abuse its discretion in holding that

Appellant would be unjustly enriched if it were permitted to remove the

trailer from Appellee’s land without paying the rent due and owing for the

period that Appellant owned the mobile home and it was located on

Appellee’s property.

      Order affirmed.

      Judge Mundy joined majority.

      Judge Jenkins concur in the result.




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J-A07012-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




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