J-A27003-18


                                   2019 PA Super 98

    SCIOLI TURCO, INC.                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    DENISE PRIOLEAU AND RASHEED F.             :
    PRIOLEAU AND ISIAH N. BURNS                :
    3206 PEARL STREET PHILADELPHIA,            :
    PA 19104 OPA/BRT: 241155400                :   No. 422 EDA 2018

                  Appeal from the Order December 20, 2017
     In the Court of Common Pleas of Philadelphia County Civil Division at
                      No(s): August Term, 2017 No. 1535

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

OPINION BY BOWES, J.:                                   FILED MARCH 29, 2019

       Scioli Turco, Inc. (“STI”) appeals from the order that denied its petition

for the appointment of a conservator pursuant to the Abandoned and Blighted

Property Conservatorship Act (“the Act”). We affirm.1

       On August 17, 2017, STI, a not-for-profit corporation, filed a petition to

have itself appointed conservator of 3206 Pearl Street (“the Property”) “to

take possession of, rehabilitate and/or demolish” the Property.         Petition,

8/17/17, at unnumbered 1. The petition identified Denise Prioleau, Rasheed

F. Prioleau, and Isiah Burns (“Owners”) as the owners of the Property. Id. at

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1 Although we disagree with the trial court’s basis for denying STI’s petition,
we may affirm on any basis apparent from the record.              See, e.g.,
Commonwealth v. Smith, 194 A.3d 126, 138 (Pa.Super. 2018) (“To the
extent our legal reasoning differs from the trial court’s, we note that as an
appellate court, we may affirm on any legal basis supported by the certified
record.”) (internal quotation marks omitted).
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¶ 9.    The petition alleged, inter alia, that the Property was open and

unsecured; presented a public nuisance; required major rehabilitation

including a new roof, new floors and walls, and updated plumbing and heating;

created a hazard through the accumulation of debris and uncut vegetation;

and had not been occupied for the prior twelve months. The petition further

averred that Owners had failed to take reasonable steps to secure the Property

and take necessary remedial measures. Id. at ¶¶ 16, 19-30.

       The trial court scheduled a hearing that was ultimately held on

December 13, 2017, at which Denise and Rasheed appeared pro se.            STI

presented evidence in support of its petition, including the testimony of Helma

Weeks, who had lived in the neighborhood for twenty years, and Ryan Spak,

who runs Project Rehab, a nonprofit program that had been monitoring the

Property since 2013. Ms. Weeks indicated that the Property appeared to be

dilapidated, unkempt, and unkept. N.T. Hearing, 12/13/17, at 10-11. She

also never noticed anyone living in the Property when she walked by it

approximately twice each month. Id. at 13. Mr. Spak viewed the outside of

the Property numerous times over the years, including three times in 2017.

He had seen the interior twice, the last time being in 2014. Mr. Spak testified

that the Property was a gutted shell in 2014, with exposed wires, portions of

the floor and roof completely rotted, water damage, and no windows. Id. at

37-42. Mr. Spak further stated that the Property was “blatantly vacant,” that

no one had been occupying the Property for the past year, and that “[i]f


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someone was living there it would violate every building code the City has.”

Id. at 25, 40, 42. Mr. Spak indicated the Property was “a beacon for all the

things that make a neighborhood unsafe.” Id. at 39. Mr. Spak acknowledged

that he had spoken with Mr. Prioleau about Mr. Prioleau performing the work

himself, and reminding him that, to do so, he would require permits. Id. at

46. Mr. Spak also testified that Owners, when he spoke to them in the early

summer of 2017, gave no indication that they had performed any work toward

accomplishing their goals in rehabilitating the Property. Id. at 25.

      Mr. Prioleau testified that he has an associates degree in architectural

design and is certified as a contractor. Id. at 60. He conceded that there

were licensing and inspection violations against the Property, that he had not

applied for any permits to perform work on it, and that the Property was not

insured at the time of the hearing. Id. at 55-56, 61. However, he stated that

he was informed that he did not require permits to do the work himself, and

had begun gutting the inside in 2015 and working on the exterior one week

before the conservatorship petition was filed. Id. at 53-54, 56. Mr. Prioleau

provided photographs, all taken on or after September 23, 2017, to show his

efforts on the exterior, but he had none of the interior. Id. at 66-69, 75. He

indicated that it would take him approximately one year to complete all of the

work himself. Id. at 72.

      Mr. Prioleau further testified that he visited the Property every day

between acquiring it in 2012 and the filing of the conservatorship petition. Id.


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at 53. He stated that he had been living there for three or four years, sleeping

there three nights per week.         Id. at 63. Mr. Prioleau used the Property’s

address on his driver’s license and for his voter registration. Id. at 63-64. He

indicated that the Property had running water until he turned it off to replace

a cracked line, and that he used a generator for electricity until he had the

electric turned on three months prior to the hearing. Id. at 59, 64, 74.

       Upon receiving all of the evidence, the trial court took the matter under

advisement. On December 20, 2017, the court entered an order denying the

petition because “the Property at issue has been and remains occupied and

therefore [is] not subject to” the Act. Order, 12/20/17. STI filed a post-trial

motion for reconsideration,2 which the trial court denied by order of January

16, 2018. STI filed a timely notice of appeal on January 19, 2018. The trial

court did not order STI to file a statement of errors complained of on appeal,

but did author an opinion pursuant to Pa.R.A.P. 1925(a).

       This Court dismissed STI’s appeal after it failed to appear for scheduled

oral argument.      Upon STI’s timely filing of an application to reinstate the



____________________________________________


2 Motions for post-trial relief filed pursuant to Pa.R.C.P. 227.1 are required to
preserve issues on appeal following a hearing on a petition under the Act. See
G & G Inv’rs, LLC v, Phillips Simmons Real Estate Holdings, LLC, 183
A.3d 472 (Pa.Super. 2018). STI’s filing, styled a “Motion for Reconsideration,”
rather than a “Motion for Post-trial Relief,” requested that the trial court
reconsider its decision because Mr. Prioleau’s occupation of Property did not
qualify as legal occupation. This Court has held that such a filing qualifies as
a motion for post-trial relief under Pa.R.C.P. 227.1. See Gemini Equip. Co.
v. Pennsy Supply, Inc., 595 A.2d 1211, 2014 (Pa.Super. 1991).

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appeal, this Court granted panel reconsideration by order of January 23, 2019.

Accordingly, we now consider the following question presented by STI: “Did

the trial court err[] by finding the Property was ‘legally occupied’ pursuant to

[the Act] where the Property’s condition, unsafe violations, and/or illegal use

made it incapable of legal occupation?” STI’s brief at 7.

       We begin with the applicable standard of review.

       Our review in a non-jury case is limited to whether the findings of
       the trial court are supported by competent evidence and whether
       the trial court committed error in the application of law. We must
       grant the court’s findings of fact the same weight and effect as
       the verdict of a jury and, accordingly, may disturb the non-jury
       verdict only if the court’s findings are unsupported by competent
       evidence or the court committed legal error that affected the
       outcome of the trial.

G & G Inv’rs, LLC v. Phillips Simmons Real Estate Holdings, LLC, 183

A.3d 472, 478 (Pa.Super. 2018)

       The trial court held that STI failed to establish the first condition for the

appointment of a conservator provided by the Act: that, as of the date of the

filing of the petition, “[t]he building has not been legally occupied for at least

the previous twelve months.”           68 P.S. § 1105(d)(1).    In construing this

language, the trial court initially focused upon the definition of “occupy” – “to

live or stay in (a place).” Trial Court Opinion, 2/20/18, at unnumbered 53

(quoting Black’s Law Dictionary (10th ed. 2014) (cleaned up). The trial court



____________________________________________


3 It appears that the trial court’s opinion is missing one or more pages. Our
citations are based upon the number of pages in the filed document.

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found credible Mr. Prioleau’s testimony that he utilizes the Property as a

residence, sleeping there three nights per week, and thus concluded that he

occupied it within the meaning of the Act. Id. at 6-7.

      The trial court then determined that Mr. Prioleau’s occupation of the

Property was legal because the legislative findings and purpose codified at 68

P.S. § 1102 “demonstrate an intent for the term ‘legally occupied’ to

distinguish properties abandoned by their owners and/or occupied by

unauthorized entrants and vagrants, from properties occupied with their

owners or with their owners’ consent.”        Trial Court Opinion, 2/20/18, at

unnumbered 6. Therefore, because Mr. Prioleau both owned and resided at

the Property, he “legally occupied” it for the twelve months preceding the filing

of STI’s petition. Id. at 6-7.

      As the trial court’s factual findings are supported by the record, we are

bound by them. G & G Inv’rs, supra at 478. Accordingly, we accept that

Mr. Prioleau regularly spent nights at the Property, and reject STI’s evidence

that the Property was vacant. However, we are not bound by the trial court’s

legal conclusion that such activity established that the Property was “legally

occupied” by Mr. Prioleau. Rather, the construction of the language of the Act

is a question of law that we consider de novo. Generation Mortg. Co. v.

Nguyen, 138 A.3d 646, 649 (Pa.Super. 2016) (“[T]o the extent that we must

interpret a statute to resolve Appellant’s issues, our standard of review is de

novo and our scope of review is plenary.”).


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      The Statutory Construction Act provides that legislative intent controls

the construction of statutes. In effectuating the intent of the legislature, the

following principles apply.

      (a) The object of all interpretation and construction of statutes is
      to ascertain and effectuate the intention of the General Assembly.
      Every statute shall be construed, if possible, to give effect to all
      its provisions.

      (b) When the words of a statute are clear and free from all
      ambiguity, the letter of it is not to be disregarded under the
      pretext of pursuing its spirit.

1 Pa.C.S. § 1921. “Only if we determine that the statutory text is ambiguous

may we look to considerations beyond the text such as the mischief to be

remedied by the statute or what gave rise to its enactment.” Whitmoyer v.

Workers’ Comp. Appeal Bd. (Mountain Country Meats), 186 A.3d 947,

954 (Pa. 2018).        “[I]n determining whether language is clear and

unambiguous, we must assess it in the context of the overall statutory

scheme, construing all sections with reference to each other, not simply

examining language in isolation.” Id. “A term is ambiguous if, when it is read

in context, it has more than one reasonable interpretation. Snyder Bros.,

Inc. v. Pennsylvania Pub. Util. Comm’n, 198 A.3d 1056, 1073 (Pa. 2018).

      The Statutory Construction Act further offers the following guidance in

interpreting words and phrases.

      (a) Words and phrases shall be construed according to rules of
      grammar and according to their common and approved usage;
      but technical words and phrases and such others as have acquired
      a peculiar and appropriate meaning or are defined in this part,


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      shall be construed according to such peculiar and appropriate
      meaning or definition.

      (b) General words shall be construed to take their meanings and
      be restricted by preceding particular words.

1 Pa.C.S. § 1903. “Courts also must not interpret a statute in a manner that

leads to an absurd result.” C.B. v. J.B., 65 A.3d 946, 953 (Pa.Super. 2013).

      Our first task is to determine whether the phrase “legally occupied” is

ambiguous.    As discussed above, the trial court interpreted the phrase to

indicate that the property at issue is lived in by an owner or someone who has

the owner’s permission. See Trial Court Opinion, 2/20/18, at unnumbered 5-

7. STI agrees that the term “legally occupied” means that “the presence of

vagrants or trespassers should not serve to disqualify a conservatorship

action, but rather justify it.” STI’s brief at 14. However, it contends that the

limitation of the construction to mean only presence by one with authority is

unwarranted by the language.

      STI argues that the term “legally occupied” also means that the

condition of the property must be such that the law allows it to be occupied

by anyone.    In other words, STI’s interpretation of the phrase would also

prohibit a finding of legal occupation if the property at issue has “been

designated so unsafe and hazardous that occupation cannot be legal.” Id.

For the following reasons, we agree with STI and hold that the term “legally

occupied” is unambiguous and means “occupied in a manner that comports

with the law.”


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      The trial court properly cited the definition of “occupy,” which is “to live

or stay in (a place).” Trial Court Opinion, 2/20/18, at unnumbered 5 (quoting

Black’s Law Dictionary (10th ed. 2014)).       The trial court did not similarly

consider the meaning of “legally,” which primarily is defined as “[i]n a lawful

way; in a manner that accords with the law.” Black’s Law Dictionary (10th

ed. 2014).      “Lawful” designates “[n]ot contrary to law; permitted or

recognized by law[.]” Id. Thus, nothing in the plain meaning of the words

suggests that the term “legally occupied” solely references the provisions of

property law governing the right to possession rather than indicating

occupation that also complies with municipal safety regulations.

      However, as noted above, we must not consider the words in isolation,

but in the context of the overall statutory scheme.        Such an examination

confirms that the broader ordinary meaning of “legally” reflects the

legislature’s intent.

      The Act contains a statement of the legislature’s findings and the

purpose of the Act.     The trial court collected some of these statements as

follows.

            The Legislative Findings and Purpose section of [the Act]
      states conservatorship actions are meant to “provide a
      mechanism to transform abandoned and blighted buildings into
      productive reuse” as “many citizens of this Commonwealth are
      adversely affected by abandoned and blighted properties.” 68
      P.S. § 1102(5)(2). Further, [the Act] focuses on the fact that
      “substandard, deteriorating and abandoned residential structures
      are a public safety threat” and if such buildings are not
      rehabilitated, “they are likely to remain abandoned and further
      deteriorate.” 68 P.S. § 1102(3-4).

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Trial Court Opinion, 2/20/18, at unnumbered 6 (cleaned up). Hence, the trial

court focused upon the references to abandoned properties, apparently

equating “abandoned” with “unoccupied.” However, the legislature instead

defined the term “abandoned property” for purposes of the Act to mean “[a]ny

property that meets the requirements of conditions for conservatorship as

provided in [68 P.S. § 1105(d)].” 68 P.S. § 1103. Moreover, the legislature

indicated that,

       [i]f the owner of a residential, commercial or industrial building
       fails to maintain the property in accordance with applicable
       municipal codes or standards of public welfare or safety, it
       is in the best interest of the Commonwealth, the municipality and
       the community for the court, pursuant to the provisions of this
       act, to appoint a conservator to make the necessary
       improvements before the building deteriorates further and
       necessitates demolition, resulting in the removal of the building
       from the housing supply or prohibiting future productive economic
       use.

68 P.S. § 1102(6) (emphasis added). Thus, both keeping buildings available

for housing and ensuring that they are maintained in accordance with

applicable codes motivated the legislature’s passage of the Act.

       To further these purposes, the legislature provided that a conservator

may be appointed if all of the following conditions exist at the time the petition

is filed:

       (1) The building has not been legally occupied for at least the
       previous 12 months.

       (2) The owner fails to present compelling evidence that he has
       actively marketed the property during the preceding 60-day


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     period and made a good faith effort to sell the property at a price
     which reflects the circumstances and market conditions.

     (3) The property is not subject to a pending foreclosure action by
     an individual or nongovernmental entity.

     (4) The current owner fails to present sufficient evidence that he
     has acquired the property within the preceding six months. . . .

     (5) The court finds at least three of the following:

        (i) The building or physical structure is a public nuisance.

        (ii) The building is in need of substantial rehabilitation and no
        rehabilitation has taken place during the previous 12 months.

        (iii) The building is unfit for human habitation, occupancy or
        use.

        (iv) The condition and vacancy of the building materially
        increase the risk of fire to the building and to adjacent
        properties.

        (v) The building is subject to unauthorized entry leading to
        potential health and safety hazards and one of the following
        applies:

           (A) The owner has failed to take reasonable and necessary
           measures to secure the building.

           (B) The municipality has secured the building in order to
           prevent such hazards after the owner has failed to do so.

        (vi) The property is an attractive nuisance to children,
        including, but not limited to, the presence of abandoned wells,
        shafts, basements, excavations and unsafe structures.

        (vii) The presence of vermin or the accumulation of debris,
        uncut vegetation or physical deterioration of the structure or
        grounds has created potential health and safety hazards and
        the owner has failed to take reasonable and necessary
        measures to remove the hazards.




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         (viii) The dilapidated appearance or other condition of the
         building negatively affects the economic well-being of residents
         and businesses in close proximity to the building, including
         decreases in property value and loss of business, and the
         owner has failed to take reasonable and necessary measures
         to remedy appearance or the condition.

         (ix) The property is an attractive nuisance for illicit purposes,
         including prostitution, drug use and vagrancy.

68 P.S. § 1105(d).

      Under the trial court’s interpretation of “legally occupied,” the owner of

a blighted property that is an unsecured, vermin-infested attractive nuisance,

that presents a risk of fire to neighboring properties, and that requires

substantial repairs that the owner fails to undertake, may indefinitely elude

all possibility of the appointment of a conservator under the Act simply by

choosing to occupy the building for some amount of time each year. Such a

reading would permit a determined owner to allow his or her building to

deteriorate to the point that demolition is necessary. As such, the trial court’s

construction of “legally occupied” is contrary to the express purpose of the

Act. We do not believe that the legislature intended an absurd result.

      Based upon our examination of the language of the statute, viewed in

the context of the scheme put in place with the Act, we hold that the term

“legally occupied” as used in 68 P.S. § 1105(d)(1) unambiguously requires

proof that the building in question has not been lived in during the preceding

twelve months in conformity with the laws regulating the right to occupancy.

This showing may be made with evidence that no person has resided in the


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building, that any occupation was in violation of the rights of the property

owner (e.g., occupation was by trespassers as opposed to an owner or lessee),

or that a statute or code provision prohibits any person from living in the

structure legally (e.g., the property has been deemed unfit for habitation and

ordered to be evacuated).

      Despite our agreement with STI that the trial court incorrectly construed

the term “legally occupied,” we nonetheless conclude that we need not disturb

the order dismissing the petition. STI offered no evidence that Mr. Prioleau’s

occupation of the Property was illegal.

      On appeal, STI argues that no person could lawfully occupy the Property

because “[a] property may be designated unsafe, inter alia, because of

‘inadequate means of egress, inadequate light and ventilation, fire hazard,

other dangers to human life or the public welfare, illegal or improper

occupancy or inadequate maintenance[.]’”       STI’s brief at 15 (quoting 34

Pa.Code § 403.84(a)).       STI contends that Mr. Prioleau “admitted the

municipality issued unsafe violations against the Property” and that “this

required the code officer to order the vacating of the building,” rendering the

Property “incapable of legal occupation.” Id. (citing 34 Pa.Code § 403.84(b)).

      Our review of the transcript reveals no evidence that any building code

violations prevented Mr. Prioleau from occupying the Property.       The code

provision relied upon by STI provides more fully as follows:

      (a) A building code official may determine that a building,
      structure or equipment is unsafe because of inadequate means of

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      egress, inadequate light and ventilation, fire hazard, other
      dangers to human life or the public welfare, illegal or improper
      occupancy or inadequate maintenance. A vacant building or
      structure that is not secured against entry is unsafe under this
      section.

      (b) When a building code official determines the existence of an
      unsafe condition, the building code official shall order the vacating
      of the building or structure.

      (c) A building code official shall serve a written notice on the owner
      or owner’s agent of the building, structure or equipment that is
      unsafe under this section. The notice shall contain the order to
      vacate the building, structure or seal the equipment out of service
      and state the unsafe conditions, required repairs or
      improvements. The order shall be served by certified mail or
      personal service to the owner or to the owner’s agent’s last known
      address or on the owner, agent or person in control of the building,
      structure or equipment. A building code official shall post the
      written notice at the entrance of the structure or on the equipment
      if service cannot be accomplished by certified mail or personal
      service.

      (d) When a building or structure is ordered vacated under this
      section, the building code official shall post a notice at each
      entrance stating that the structure is unsafe and its occupancy is
      prohibited.

34 Pa.Code § 403.84.

      STI does not raise an argument in this Court that a building code official

determined the Property to be unsafe to the degree that it was ordered that

the Property be vacated or that notice that occupancy was prohibited had been

posted, let alone identify where in the record such evidence was presented to

the trial court.   Moreover, from our review of the hearing transcript and

exhibits, we find no evidence that an official ordered the Property to be

vacated and prohibited occupancy for a code violation, and discern no notice


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prohibiting occupancy posted on the entrances to the Property in the

photographs offered at the hearing. See Exhibits P-1, R-4.

      All STI offered was the testimony of Mr. Spak that “[i]f someone was

living there it would violate every building code the City has.” N.T. Hearing,

12/13/17, at 42. However, Mr. Spak’s testimony was based not upon any

official determination of uninhabitability, but upon his personal belief that the

Property was unsafely “not up to City code” such that “it would be very hard

for someone to live there.” Id. at 42-43. The trial court held that Mr. Spak

was not qualified as an expert to offer conclusions about whether joists were

compromised, let alone that the property was unsafe to the extent that the

building code absolutely necessitated an order to vacate the Property. See

id. at 47-49.   Further, Mr. Prioleau’s acknowledgment that he received an

inspection violation in mid-August 2017 pertaining to the roof by no means

establishes that Mr. Prioleau’s occupation of the Property had been illegal for

the twelve months preceding STI’s filing of its conservatorship petition on

August 17, 2017.

      Therefore, accepting the trial court’s finding that Mr. Prioleau lived at

the Property, STI failed to meet its burden of coming forth with evidence to

prove that, as of the date of the filing of the petition, “[t]he building has not

been legally occupied for at least the previous twelve months.”         68 P.S.

§ 1105(d)(1). Accordingly, we affirm.

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/19




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