J-A01022-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MATTHEW HANSEN, ALEC SPERGEL, : IN THE SUPERIOR COURT OF
COLLIN   SCHWARTZ    AND COREY :      PENNSYLVANIA
NORD-PODBERESKY,               :
                               :
              Appellees        :
                               :
          v.                   :
                               :
MICHAEL BUPP,                  :
                               :
              Appellant        : No. 673 WDA 2014

                  Appeal from the Order March 28, 2014,
                 Court of Common Pleas, Allegheny County,
                    Civil Division at No. AR 12-001711

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED FEBRUARY 24, 2015

     Appellant, Michael Bupp (“Bupp”), appeals from the order dated March

28, 2014, denying his motion for post-trial relief and entering judgment in

favor of Appellees in the amount of $20,457.25. For the reasons that follow,

we affirm.

     Appellees are students at the University of Pittsburgh. In March 2012,

they entered into a lease agreement with Bupp for the premises at 3602

Dawson Street in the Oakland area near the university campus. The agreed

upon rent was $1,995 per month, with rent for the first and last month,

along with a security deposit of $1,995, due prior to moving into the

residence.    Accordingly, Appellees paid Bupp approximately $5,990 in

advance of the commencement of the lease.      Although the parties agreed
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that the lease would begin on the first of August 2012, none of the

Appellants moved in until later that month, when Appellee Alex Spergel

(“Spergel”) arrived on or around August 20, 2012.          Spergel immediately

identified certain problems with the condition of the residence, including a

bath drain, a light, and various locks, and notified Bupp of his concerns in an

email.

      According to Spergel, Bupp responded to his email with a text

message that read, “I cannot deal with your group.         Please leave.”      N.T.,

9/10/2013, at 62. Spergel then called Bupp in an attempt to resolve their

differences, and at trial he testified regarding that phone call as follows:

      A.    … The text seemed to come out of the blue. So I
            called, and immediately Mr. Bupp seemed very
            agitated. And after a minute of trying to figure what
            his problems were, I put my phone on
            speakerphone. My parents were in the room with
            me. They were in conference.

            And even like once I put it on speakerphone, he
            started to get more erratic, more agitated; and he
            started to say profanities. I don’t know – can I say
            what the words were? If you guys don’t mind.

      [COURT]:    Sure.

      A.    He said, “You fucking assholes.       You fucking
            assholes.” And he said it repeatedly, maybe about
            seven times. And he said, “Get out. Get out, you
            fucking assholes.” And then he hung up.

                               *     *      *

      Q.    During that telephone call you had with Mr. Bupp,
            did Mr. Bupp make any offer to you to let you and



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           your roommates out of the lease you had signed for
           3602 Dawson Street?

     A.    There was no offer.        He said there were other
           apartments in Oakland, but there was no distinct
           offer for us to go to any of those apartments.

     Q.    Did he tell you to do anything?

     A.    He just said “Get out.”

                             *       *     *

     Q.    What did you and your roommates do after the
           communications of that Saturday, August 20th?
           What did you do in response to Mr. Bupp?

     A.    Well, in response, my parents and I, we were the
           first ones to hear it. We were obviously taken aback
           by it. We had no idea where this had come from.
           We were honestly a little scared, because here’s this
           man telling us to get out of his house.

           So we obliged him, and I left. I stayed at a hotel
           that night here in downtown Pittsburgh at the
           William Penn. And I didn’t go back until I moved out
           my stuff.

Id. at 62-65.

     By letter, Appellees requested that Bupp return the rent and security

deposit to them. By letter dated September 26, 2012, Bupp refused to do

so, advising that “I am sorry to inform you that at this time it does not

appear that you are entitled to a refund of August Rent or the remainder of

the monies that were paid to me.” Id. at 80 (Exhibit 8). In his letter, Bupp

contended that Appellees had terminated the lease by vacating the premises

despite his promises to address the repair concerns.       Id.     He further



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indicated that during the August 20 telephone call, he had offered to let

Appellees out of the lease and to help them locate another apartment , but

that his offer had been “firmly rejected.”    Id.   Finally, he contended that

their failure to advise him that they were breaking the lease resulted in his

inability to re-lease the premises sooner in order to mitigate the damages.

            The problem we have now is that you failed to notify
            me that you were moving. You just moved. If you
            would have told me prior to August 24 or so that
            your parents thought that you were not capable of
            living on your own, I probably could have found
            someone else to take over your lease.

Id.

      Appellees filed suit against Bupp for his failure to return their security

deposit and rent payments.       An arbitration panel entered an award for

Appellees, which Bupp appealed. A jury then entered a verdict in favor of

Appellees in the amount of $3,990. Following the jury verdict, the trial court

received additional evidence on Appellees’ claims under the       Unfair Trade

Practices and Consumer Protection Law (“UTPCPL”).            Based upon this

evidence, the trial court molded the verdict to add $10,000 in attorneys’

fees, $457.25 in costs, and $6,010 in exemplary damages. By order dated

March 28, 2014, the trial court denied Bupp’s post-trial motions and entered

judgment in favor of Appellees in the amount of $20,457.25.

      On appeal, Bupp raises seven issues for our consideration and

determination:




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      1.    Did the [c]ourt err, as a matter of law, in finding that
            [Bupp] made misrepresentations to the Appellee’s
            [sic] regarding the return of their security deposit
            and retention of prepaid rent when there was no
            evidence submitted at trial in support of that finding?

      2.    Did the [c]ourt err, as a matter of law, in finding that
            [Bupp] violated Section 201-2(4)(xxi) of the PA
            UTPCPL, by failing to return Appellee’s [sic] security
            deposit and prepaid rent, notwithstanding [Bupp’s]
            compliance with the requirements of the PA Landlord
            Tenant Act?

      3.    Did the [c]ourt err, as a matter of law, in its reliance
            on Wallace v. Pastore, 742 A.2d 1090 (Pa. Super.
            1999) to find that [Bupp] violated Section 201-
            2(4)(xxi) of the PA Unfair Practices and Consumer
            Protection Law?

      4.    Did the [c]ourt err, as a matter of law, in awarding
            punitive damages and counsel fees based upon
            finding that [Bupp] violated Section 201-2(4)(xxi) of
            the PA Unfair Practices and Consumer Protection
            Law?

      5.    Did the [c]ourt err, as a matter of law, in the denial
            of all of [Bupp’s] requested jury instructions, other
            than boilerplate standard jury instructions?

      6.    Did the [c]ourt err, as a matter of law, in instructing
            the jury on the law with respect to the provisions of
            the Landlord Tenant Act and under what
            circumstances a security deposit and the amount
            thereof must be returned by a landlord, and under
            what circumstances a tenant may be entitled to
            double the security deposit?

      7.    Did the [c]ourt err, as a matter of law, in its
            response to an inquiry of the jury, during
            deliberation, as to under what circumstances double
            the security deposit is payable?

Bupp’s Brief at 4.



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      Our standard of review from the denial of post-trial motions seeking a

new trial or judgment notwithstanding the verdict is as follows:

               “Our standard of review [of an order] denying a
               motion for a new trial is to decide whether the trial
               court committed an error of law which controlled the
               outcome of the case or committed an abuse of
               discretion.” Angelo v. Diamontoni, 871 A.2d 1276,
               1279 (Pa. Super. 2005), appeal denied, 585 Pa. 694,
               889 A.2d 87 (2005) (citation omitted). Similarly,
               Appellant sought post-trial relief in the nature of a
               motion for JNOV, which requires us to “consider all of
               the evidence admitted to decide if there was
               sufficient competent evidence to sustain the verdict.”
               Wilson v. Transport Ins. Co., 889 A.2d 563, 569
               (Pa. Super. 2005). If there is any basis upon which
               the trial court could have properly made its award,
               we must affirm its subsequent denial of the motion
               for JNOV. Id. “A JNOV should be entered only in a
               clear case.” Id.

Christian v. Yanoviak, 945 A.2d 220, 225 (Pa. Super. 2008).

      We will address Bupp’s first four issues together, as they all rely upon

the same premise, namely that he did not violate the UTPCPL, 73 P.S.

§ 301-1 et seq.1     Bupp contends that Appellants “offered no evidence that

supports the contention that Bupp made misrepresentations to [Appellants]

that could in any manner be construed as fraudulent or deceptive.” Bupp’s

Brief at 13.     Bupp further argues that Appellants “have offered nothing to

suggest that Bupp represented he would make repairs and failed to make

such repairs,” and that the “uncontroverted testimony at trial” reflects that


1
   Bupp’s second issue on appeal also refers to his compliance with the
Landlord Tenant Act, which we will discuss in connection with his sixth and
seventh issues.


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Appellants “were substantially satisfied with the apartment on August 20,

2012, having moved in with no express intention of vacating ….” Id. at 12.

     In Wallace, this Court described the law relating to the application of

the UTPCPL in landlord-tenant matters as follows:

           The UTPCPL prohibits “[u]nfair methods of
           competition and unfair or deceptive acts or practices
           in the conduct of any trade or commerce as defined
           by ... section 2 of this act....” 73 P.S. § 201-3.
           Unfair or deceptive acts or practices, under section 2
           of the UTPCPL, include, inter alia, the following:

                 (xv) knowingly misrepresenting that
                 services, replacements or repairs are
                 needed if they are not needed....

           73 P.S. § 201-2(4).       A person who leases or
           purchases goods or services “primarily for personal,
           family or household purposes and thereby suffers
           any ascertainable loss of money or property ... as a
           result” of an unfair or deceptive practice under the
           UTPCPL, may bring a private action to recover those
           damages, and the court may, in its discretion,
           “award up to three times the actual damages
           sustained.” 73 P.S. § 201-9.2(a).

           The UTPCPL must be liberally construed to effect the
           law's purpose of protecting consumers from unfair or
           deceptive business practices. Commonwealth v.
           Monumental Properties, Inc., 459 Pa. 450,
           329 A.2d 812 (1974). The Pennsylvania Supreme
           Court has held that the UTPCPL applies to the leasing
           of residences.      Id. (stating that the modern
           apartment dweller is a consumer of housing
           services). In addition, the remedies of the UTPCPL
           are not exclusive, but are in addition to other causes
           of action and remedies. Gabriel v. O'Hara, 368 Pa.
           Super. 383, 534 A.2d 488, 495 & 495 n. 22 (1987);
           see also Johnson v. Hyundai Motor Am.,
           698 A.2d 631, 637 (Pa. Super. 1997) (stating that a



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            violation of the Pennsylvania Lemon Law, 73 P.S. §§
            1952-63, was also a violation of the UTPCPL in an
            action brought under both statutes for damages
            arising from a defective vehicle).

Wallace, 742 A.2d 1090, 1092-93 (Pa. Super. 1999).

      In Wallace, a landlord refused to return a tenant’s security deposit,

claiming that the tenant had caused thousands of dollars in damages upon

vacating the premises.    Id. at 1091-92.    Following a bench trial, the trial

court awarded the tenant his security deposit and, pursuant to the UTPCPL,

treble damages, attorneys’ fees, and costs of suit. Id. In so doing, the trial

court concluded that the landlord’s representations regarding necessary

repairs violated section 201-2(4)(xv) (“Knowingly misrepresenting that

services, replacements or repairs are needed if they are not needed”) of the

UTPCPL. This Court affirmed.

      We agree with Appellants that the clear holding of Wallace is that

where it is shown that a landlord wrongfully withholds a security deposit in a

manner that constitutes an “unfair trade practice,” as that term is defined in

the UTPCPL, the tenant is entitled to damages under the UTPCPL.2 In this




2
   Bupp attempts to distinguish Wallace on its facts, arguing that in this
case he made no misrepresentations regarding damages to the apartment,
and thus no violation of section 201-2(4)(xv). Bupp cites to no authority,
however, to support his contention that Wallace should be construed as
limiting the availability damages against a landlord to violations of section
201-2(4)(xv). Nothing in our decision in Wallace, or in subsequently
decisions affirming and applying its directives, establishes or even suggests
that a landlord’s liability under the UTPCPL is limited to violations of section


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case, the trial court correctly so interpreted our holding in Wallace and

found    that   Bupp’s   September     26,   2012   letter   contained   multiple

misrepresentations in violation of the “catch-all” portion of the UTPCPL’s

definition of “unfair trade practices” in section 201-2(4)(xxi) (“Engaging in

any other fraudulent or deceptive conduct which creates a likelihood of

confusion or of misunderstanding.”).

        Bupp’s contention that Appellants did not introduce any evidence to

support the contention that he made any statement that “could in any

manner be construed as fraudulent or deceptive,” Bupp’s Brief at 13, borders

on frivolity.   For just a few examples, Spergel’s testimony (which Bupp

neither mentions nor discusses in his appellate brief) provides evidence that

the representations in Bupp’s September 26 letter justifying his refusal to

return the security deposit and prepaid rent were the result of Appellees’

breach of the lease were patently false. Spergel’s testimony, which the jury

and the trial court obviously found to be credible, establishes that it was

Bupp who terminated the lease, as (during the August 20 telephone

conversation) Bupp repeatedly demanded that Appellees “get out.”            N.T.,

9/10/2013, at 62-65.     Moreover, Spergel’s testimony also established that

Bupp’s representation that he offered to allow Appellants to terminate the

lease and/or move into another nearby apartment was likewise false.          Id.



201-2(4)(xv), as opposed to any other type of unfair trade practice
(including but not limited to those as defined in section 201-2(4)(xxi)).


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Finally, Bupp’s representation that he was unaware of Appellants’ departure

from the apartment was likewise fraudulent and deceptive, as he had just

ordered them to leave in an expletive laden outburst. Id.

      In Wallace, this Court approved an award of attorneys’ fees on a rate

of $200 per hour.     Wallace, 742 A.2d at 1094.        In this case, Appellants

presented evidence that their attorneys’ fees, computed at a rate of $200

per hour, were approximately $20,000.           The trial court, exercising its

discretion after reviewing counsel’s billings, awarded only $10,000 in

attorneys’ fees.   On appeal, Bupp does not contest the calculation of the

amount of attorneys’ fees awarded (or the amount of costs, which the trial

court also limited to essential items). Accordingly, we conclude that the trial

court did not err in its decision to mold the jury’s verdict to include damages

properly assessed under the UTPCPL, and that as a result Bupp is not

entitled to any relief on his first four issues on appeal.

      For his fifth issue on appeal, Bupp argues that the trial court’s jury

instructions regarding the obligations of landlords under Pennsylvania’s

Landlord Tenant Act with regard to the return of security deposits

constituted error. In particular, Bupp contends that the trial court erred in

instructing the jury that it was a violation of the Landlord Tenant Law for

Bupp to withhold the security deposit if Appellees caused no damage to the

leased property. Bupp’s Brief at 21. According to Bupp, this misrepresents

the landlord’s obligations under that statute, since a landlord may also



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withhold a security deposit “for nonpayment of rent or for the breach of any

other condition in the lease by the tenant.” Id.; 68 P.S. § 250.512(a).

      A reviewing court will not grant a new trial on the ground of

inadequacy of the charge unless there is a prejudicial omission of something

basic or fundamental. McManamon v. Washko, 906 A.2d 1259, 1271 (Pa.

Super. 2006).    We need not determine whether the trial court’s charge to

the jury here was in error, since even if it was incomplete in the manner

suggested by Bupp, he has not established that he suffered any prejudice as

a result.   Bupp could not have withheld the security deposit in this case

based upon the nonpayment of rent, as there is no allegation that Appellees

failed to pay all rent due under the lease.      Moreover, the evidence (as

reviewed hereinabove) provided the jury with ample basis to conclude that it

was Bupp, and not Appellees, who breached the lease agreement.            As a

result, Bupp has not established any prejudicial effect from the trial court’s

alleged failure to inform the jury that Bupp’s refusal to return the security

deposit was justified if Appellees breached the provisions of the lease – since

the jury clearly determined that Appellees did not breach the lease.       We

decline to grant a new trial on this basis.

      For his sixth issue, Bupp contends that the trial court improperly

instructed the jury with regard to an exception to a landlord’s obligation to

return a security deposit if the tenant does not leave a forwarding address.

Bupp’s Brief at 22.     At trial, Bupp initially requested that the jury be



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instructed merely by reading section 250.512(e) of the Landlord Tenant Act.3

Id.   The trial court, after a discussion with counsel, indicated that it

considered this limited instruction to be misleading, as it suggested that

section 250.512(e) should not be considered “like a lottery” for landlords.

N.T., 9/10/2013, at 189. In response, counsel for Bupp responded “I have

no problem with that.” Id. at 190.

      Because Bupp did not assert a clear objection to the trial court’s

instruction on this issue, we conclude that the issue was not adequately

preserved for appeal.    See, e.g., City of Philadelphia, Police Dep't v.

Gray, 534 Pa. 467, 475, 633 A.2d 1090, 1094 (1993). Moreover, even if

not waived, Bupp has not established that he suffered any prejudice as a

result of the trial court’s reference to a “lottery”. We note that the trial court

also specifically advised the jury that counsel for Bupp “has raised an issue”

regarding the reading of section 251.512(e), and stated:

            His concern is that maybe I had confused you by
            talking about the security deposit and pointing out
            that the security deposit – if there is no claim to it,
            it’s not a lottery; and he can’t keep it. But certainly
            if you find – dependent on what you find, it may very
            well be used for unpaid rent.




3
   Section 250.512(e) provides that the “failure of the tenant to provide the
landlord with his new address in writing upon termination of the lease or
upon surrender and acceptance of the leasehold premises shall relieve the
landlord from any liability under this section.” 68 P.S. § 250.512(e).


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N.T., 9/10/2013, at 227.       As such, the trial court explained his “not a

lottery” instruction to the jury, and Bupp raised no objection to this

clarification. No relief is due.

      For his seventh and final issue on appeal, Bupp argues that the trial

court improperly responded to a question from the jury during its

deliberations. The jury asked “could we please have clarification about the

double-security deposit,” N.T., 9/10/2013, at 234.         Counsel for Bupp

contended that the relevant statutory provisions (sections 250.512(a) and

(c) of the Landlord Tenant Act) provide that a tenant is entitled to receive in

damages an amount double the amount of his security deposit only if the

landlord fails to advise the tenant of the reasons for withholding said

security deposit. Id. at 236. The trial court disagreed, emphasizing that the

landlord must do more than offer a basis for the withholding, and must

instead offer a “lawful” basis for doing so. Id.

      We decline to grant any relief on this basis, again based upon a lack of

prejudice.   The trial court offered the following cogent rejection of Bupp’s

contentions in this regard:

             Initially, the verdict winner is entitled to every
             reasonable inference from the evidence. Here, while
             it is said that I confused the jury, I do not see it.
             The amount of the verdict need not be parsed. The
             defense, I believe, is trying to say the $3,990
             represents doubling of the security deposit which,
             according to him, Bupp could have withheld against
             rent owed. But, that was only his defense and the
             jury didn’t believe it. Had they believed Bupp was



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            due rent, they would have so found. They did not.
            Thus, they were not confused and simply gave Bupp
            a credit for August, the first month of the lease in
            which there was no occupance and refunded
            [Appellees] the money they had put up as the last
            months rent and the security deposit, NOT doubled.
            I don’t think they were confused at all and the
            motion is DENIED.

Trial Court Opinion, 3/28/2014 (emphasis in original). In the absence of any

reason to believe that the jury was confused by the trial court’s response to

their inquiry and granted a double security deposit award (while declining to

award Appellees any amount for the return of prepaid rent), Bupp has not

established any prejudice requiring relief therefrom.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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