J-S63033-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    SHARAE ELIZABETH RUSSELL,                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    SYREETA JOHNSON,                           :
                                               :
                 Appellant                     :   No. 880 EDA 2019


                Appeal from the Order Entered February 12, 2019
              in the Court of Common Pleas of Philadelphia County
       Civil Division at No(s): September Term, 2018, No. 18-09-03706

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JANUARY 15, 2020

        Syreeta Johnson (Tenant) appeals from the order entered on February

12, 2019, which granted her petition to release money from escrow and

ordered her to vacate the property owned by Sharae Elizabeth Russell

(Landlord). Upon review, we vacate the order of the trial court and remand

for proceedings consistent with this memorandum.

        We provide the following background.          On September 28, 2018, the

Philadelphia Municipal Court entered judgment in favor of Landlord and

against Tenant for possession of the residential property at issue, based

upon termination of the lease term. No monetary damages were awarded.

On the same day, Tenant pro se filed an appeal to the Court of Common


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*   Retired Senior Judge assigned to the Superior Court.
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Pleas of Philadelphia County. Tenant was required to pay $825 per month

as a supersedeas.1 Also on September 28, 2018, Tenant ruled Landlord to

file a complaint.2

       On October 9, 2018, Landlord filed a complaint.      In the complaint,

Landlord claimed that Tenant did not return a copy of the lease to Landlord

until the hearing in the Philadelphia Municipal Court on September 28, 2018.

Landlord claimed that Tenant “doctored” the term of the lease.3 Complaint,

10/9/2018, at ¶ 4.         Landlord claimed that despite the Municipal Court

judgment granting Landlord immediate possession, Tenant has “refused to

deliver possession” of the residential property to Landlord. Id. at ¶ 6. Thus,

Landlord requested possession.

       On October 22, 2018, counsel entered an appearance on behalf of

Tenant. Counsel requested a jury trial, and filed preliminary objections to

the complaint.       According to Tenant, the complaint was deficient because

Landlord failed to attach a copy of the lease, no verification was attached to

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1 Tenant paid this amount in a timely fashion each time it was due
throughout the course of this litigation.

2 Landlord claims she did not learn of this appeal until she appeared at the
court clerk to file a petition for a writ of possession. Complaint, 10/9/2018,
at ¶ 6.

3 According to Landlord, she provided Tenant a copy of the lease, and the
two had a verbal agreement for a month-to-month lease. When the lease
was returned to Landlord at the Municipal Court hearing, Tenant had written
a term of six months into the lease. Amended Complaint, 11/21/2018, at
¶ 4.


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the complaint, and the complaint otherwise failed to state a claim.      On

November 16, 2018, the trial court sustained the preliminary objections and

dismissed the complaint without prejudice.

       On November 21, 2018, Landlord filed an amended complaint.

According to Landlord, she provided a written lease to Tenant, but the lease

term was a verbal agreement and “was month to month because [Tenant]

claimed to be moving to Delaware in August 2018 and only needed housing

[in this property] for a few months.” Amended Complaint, 11/21/2018, at

¶ 4.   Landlord attached to the amended complaint a lease, on which she

claimed Tenant “doctored” the term of the lease to make it six months. Id.;

see also id. at Exhibit A.     According to Landlord, Tenant failed to pay

utilities as required, changed the locks in violation of the lease, and also

made reports to the Department of Licenses and Inspections regarding

concerns about the property.

       A settlement conference occurred, at which no resolution was reached.

On November 26, 2018, Tenant filed a motion for extraordinary relief. She

requested additional time to file an answer and counterclaim so that she

could obtain documentation regarding alleged violations on the property.

Landlord opposed this motion. On December 3, 2018, the trial court granted

the additional time requested by Tenant, and set jury selection in this case

for April 8, 2019.




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        On January 8, 2019, Tenant filed preliminary objections to the

amended complaint, claiming that Landlord’s amended complaint was

deficient because it asked for monetary damages in a case where Landlord

was only seeking possession.           Also on January 8, 2019, Tenant filed an

emergency motion seeking to release her money from escrow. On January

10, 2019, the trial court issued a rule to show cause why the relief requested

by Tenant should not be granted. A hearing was scheduled for February 11,

2019.    Meanwhile, on February 1, 2019, the trial court sustained Tenant’s

preliminary objections and again dismissed the amended complaint without

prejudice.     The order provided Landlord twenty days to amend the

complaint. Order, 2/1/2019.

        A hearing was held on the rule to show cause on February 11, 2019.

At that hearing, Tenant, through counsel, claimed that she “desperately

wants to get out” of the property, but she needed her escrow money back in

order to move.4       N.T., 2/11/2019, at 5.     According to Tenant, she has a

“serious counterclaim,” but she has not yet filed it because the trial court

dismissed the amended complaint and no second amended complaint has

been filed. Id. However, according to Tenant, on February 10, 2019, she

“filed an affirmative case against [Landlord] for illegal lockout, violation of

lead law, and the Unfair Trade Practices Act.” Id.

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4 Tenant did not pay a security deposit or the last month’s rent when she
rented the property.


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       According to Landlord, she called “the state” on Tenant because

Tenant “was running an illegal daycare.” Id. at 6. Landlord also claimed she

never locked Tenant out of the property.         The trial court pointed out that

these living arrangements are “not working out.” Id. at 9. Landlord agreed

and stated that she had asked Tenant what it would take for her to leave the

property. Id.     The trial court provided the “solution.”   Id.   The trial court

told the parties it would give Tenant her escrow money and then Tenant

would move out.5

       Tenant then argued to the trial court that the issue of escrow money is

separate from the possession issue, and despite the fact that Tenant “wants

to move out of there more than anybody,” she wants to pursue her own

claims against Landlord. Id. at 13. The trial court then asked Tenant for a

“drop-dead date” for Tenant to move because it did not believe that once

Tenant received the escrow money, she would actually move, despite the

fact that Tenant was also claiming the property was unfit and she did not

want to live there. Id. at 14. Tenant then asked for the escrow money plus

additional money to move out. Id. at 16. Once Tenant recognized that the

trial court was going to give Tenant the escrow money, but also order

Tenant to move out, Tenant requested that she have until March 1, 2019, to

move. The trial court entered an order to that effect. In addition, Tenant

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5 According to Tenant, she offered that solution previously, and Landlord
refused. N.T., 2/11/2019, at 12.


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requested that the order “specifically state that there is no prejudice to

[Tenant] filing affirmative claims against [Landlord] in a separate action.”

Id. at 19.   The trial court agreed and added such language to the order,

which was entered on February 12, 2019.

      Tenant timely filed a notice of appeal, and both Tenant and the trial

court complied with Pa.R.A.P. 1925.    On appeal, Tenant sets forth several

issues for our review, but her primary concern is her claim that the trial

court “exceeded its authority when … [it] sua sponte ordered [Tenant] to

evacuate the property.” Tenant’s Brief at 10.

      Before we reach the merits of this appeal, we must determine whether

the order appealed from is an appealable order, as that impacts our

jurisdiction. We may consider issues related to our jurisdiction sua sponte.

See Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017).

      Tenant claims that the order appealed from is a final order pursuant to

Pa.R.A.P. 341. See Tenant’s Brief at 1.    “Rule 341 is fundamental to the

exercise of jurisdiction by this [C]ourt.” Prelude, Inc. v. Jorcyk, 695 A.2d

422, 424 (Pa. Super. 1997) (en banc). See also 42 Pa.C.S. § 742 (“The

Superior Court shall have exclusive appellate jurisdiction of all appeals from

final orders of the courts of common pleas….”). “Generally, [a]n appeal may

be taken only from a final order, unless otherwise permitted by rule or

statute.   A final order is one that disposes of all the parties and all the

claims, is expressly defined as a final order by statute, or is entered as a



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final order pursuant to the trial court’s determination.” K.M.G. v. H.M.W.,

171 A.3d 839, 842 (Pa. Super. 2017) (internal citations and quotation marks

omitted).

       Instantly, the trial court did not make a determination that this was a

final order, and there is no statute defining it as a final order; so, this order

is only appealable pursuant to Pa.R.A.P. 341 if it disposes of all claims and

all parties. Although Tenant points out that there is no pending complaint in

this case, see Tenant’s Brief at 13, the amended complaint was dismissed

without prejudice. “By granting a party leave to amend, the trial court has

not finally disposed of the parties or their claims. For finality to occur, the

trial court must dismiss with prejudice the complaint in full.” Mier v.

Stewart, 683 A.2d 930 (Pa. Super. 1996). In other words, Landlord may

still file a second amended complaint, and Tenant may file counterclaims to

that complaint.6 Thus, the order appealed from is not a final order pursuant

to Pa.R.A.P. 341.

____________________________________________
6 We recognize that the trial court provided Landlord 20 days to file a second
amended complaint, and that 20-day-period has long since passed.
However, the fact that Landlord has not yet filed an amended complaint
does not render the order dismissing the complaint and permitting leave to
amend a final order. As set forth by Judge R. Stanton Wettick, it is up to
Tenant to request the trial court “enter a judgment of non pros for failure to
prosecute” “[u]pon expiration of the 20 day period.” Malone v. Smith, 18
Pa. D.& C. 3d 682 (Allegh. Co. 1981); see also Hionis v. Concord Twp.,
973 A.2d 1030, 1035 (Pa. Cmwlth. 2009) (“There is precedent to support
the trial court’s proposition that its order could not become final until a
procedural step is taken, such as receiving a judgment of non pros.”).



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       Our analysis does not end here. We now consider an alternate basis

upon which this Court may exercise jurisdiction.             Pennsylvania Rule of

Appellate Procedure 311(a)(4) provides for the right to appeal interlocutory

orders which grant or deny injunctions. Pa.R.A.P. 311(a)(4).7       Arguably, the

portion of the trial court’s order which ordered that Tenant vacate the

property was a grant of injunctive relief in favor of Landlord. In Overland

Enterprises, Inc., v. Gladstone Partners, LP, 950 A.2d 1015, 1019 (Pa.

Super. 2008) (emphasis in original), this Court pointed out that “[i]nasmuch

as possession of the former leasehold had passed to [the landlord] as a

result of     the   eviction   process,    the   present injunction constitutes a

mandatory preliminary injunction in that it requires [the landlord] to

surrender its possession of the former leasehold to [the former tenant] for

its business use.” Similarly, in this case, the trial court ordered Tenant to

surrender possession of the property to Landlord. Thus, we conclude that

the order is appealable pursuant to Pa.R.A.P. 311(a)(4) as a preliminary

injunction.



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7 Tenant has neither sought nor been granted permission for an interlocutory
appeal pursuant to Pa.R.A.P. 312; and this order does not satisfy the
requirements for being a collateral order pursuant to Pa.R.A.P. 313(b) (“A
collateral order is an order separable from and collateral to the main cause
of action where the right involved is too important to be denied review and
the question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.”). The central issue
in this order is possession of the property, which is the main issue in the
case.


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        We now turn to the merits of this appeal. 8     On appeal, Tenant sets

forth numerous specific arguments, but all can be boiled down to her

contention that the trial court was without the authority to order that she

vacate the property. See Tenant’s Brief at 10 (arguing the trial court

“exceeded its authority when … [it] sua sponte ordered [Tenant] to evacuate

the property”). According to Tenant, she was denied various rights by the

trial court, including notice that the hearing on her rule to show cause could

result in eviction. Id. at 17.

              A trial court has broad discretion to grant or deny a
        preliminary injunction. When reviewing a trial court’s grant[ing]
        or refusal of a preliminary injunction, an appellate court does not
        inquire into the merits of the controversy, but rather examines
        only the record to ascertain whether any apparently reasonable
        grounds existed for the action of the court below. We may
        reverse if the trial court’s ruling amounted to an abuse of
        discretion or a misapplication of law.

                                  ***
        Pennsylvania Rule of Civil Procedure 1531(a) sets forth the
        procedure governing preliminary injunctions:

                    A court shall issue a preliminary or special
              injunction only after written notice and hearing
              unless it appears to the satisfaction of the court that
              immediate and irreparable injury will be sustained
              before notice can be given or a hearing held, in
              which case the court may issue a preliminary or
              special injunction without a hearing or without
              notice. In determining whether a preliminary or
              special injunction should be granted and whether
              notice or a hearing should be required, the court
              may act on the basis of the averments of the
              pleadings or petition and may consider affidavits of
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8   Landlord did not file a brief on appeal.


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              parties or third persons or any other proof which the
              court may require.

       Pa.R.C.P. 1531(a)[.] Accordingly, a court will ordinarily issue a
       preliminary injunction only after written notice and hearing. A
       preliminary injunction may be granted without notice and a
       hearing only when there exists a need for unusual haste so that
       a clear right may be protected from immediate and irreparable
       injury. In that event, the court must make a finding that relief is
       necessary and must be awarded before the defendant can be
       notified. If the court then fails to conduct a hearing within five
       days, the injunction is deemed dissolved.

WPNT Inc. v. Secret Commc’n Inc., 661 A.2d 409, 410-11 (Pa. Super.

1995) (internal citations omitted).

       Here, while both parties appeared at the hearing on the rule to show

cause regarding the release of the escrow money, neither party had notice

that the trial court was going to consider the issue of possession. Moreover,

neither Landlord nor Tenant testified at the hearing.9 Only argument from

Tenant’s attorney and Landlord, because of her pro se status, was

considered.     In WPNT, this Court held that it was reversible error for the

trial court to grant a “preliminary injunction solely on the basis of the

pleadings and arguments of counsel.” Id. at 411.          We reach the same

conclusion here. We recognize the trial court was attempting to reach a fair

result, and offer a resolution that would be best under these circumstances.

However, our rules simply do not authorize the trial court sua sponte to
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9 The trial court posits that “[o]n February 11, 2019, the [trial court] heard
full testimony from [Tenant] and [Landlord].” Trial Court Opinion,
6/20/2019, at 6. However, the notes of testimony belie that conclusion.
See N.T., 2/11/2019.


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grant a preliminary injunction without a hearing. To do so amounts to an

abuse of discretion by the trial court, which requires us to vacate the order

of the trial court.10

       Order vacated. Case remanded. Jurisdiction relinquished.

       PJE Gantman concurs in the result.

       Judge Murray concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/20




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10 On remand, the trial court may want to consider whether the issue of
possession is moot. “This Court has observed, [a]n issue before a court is
moot if in ruling upon the issue the court cannot enter an order that has any
legal force or effect.” Lico, Inc. v. Dougal, 216 A.3d 1129, 1133 (Pa.
Super. 2019) (internal quotation marks omitted).         “[C]ases presenting
mootness problems involve litigants who clearly had standing to sue at the
outset of the litigation. The problems arise from events occurring after the
lawsuit has gotten under way - changes in the facts or in the law - which
allegedly deprive the litigant of the necessary stake in the outcome….”
Graziano Const. Co. v. Lee, 444 A.2d 1190, 1193 (Pa. Super. 1982). If
Tenant has vacated the property, the issue regarding injunctive relief may
be moot.


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