J-S49002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    OXFORD TOWER APARTMENTS, LP,                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellant

                        v.

    FRENCHIE’S HAIR BOUTIQUE AND
    ROLANDE S. CHRISTOPHE,

                             Appellees                   No. 429 EDA 2019


               Appeal from the Judgment Entered March 11, 2019
              In the Court of Common Pleas of Philadelphia County
                  Civil Division at No(s): June Term 2018 1488


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED JANUARY 10, 2020

        Appellant, Oxford Tower Apartments, LP, appeals from the March 11,

2019 judgment entered in favor of Appellees, Frenchie’s Hair Boutique

(“Frenchie’s”) and Rolande S. Christophe (“Ms. Christophe”), after a non-jury

trial on Appellant’s breach of contract action. After careful review, we affirm.1

        Ms. Christophe is the owner of Frenchie’s, a limited liability corporation,

which sells hair extensions, clothing, and accessories. Ms. Christophe entered

into a three-year commercial lease with Appellant on September 6, 2016, for



____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   We note that Appellees have failed to file an appellate brief.
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a small retail storefront located at 7215C Rising Sun Avenue, Philadelphia,

Pennsylvania.

       This action began on June 13, 2018, as an appeal from a decision

rendered in municipal court.2 A trial was initially scheduled for September 10,

2018, and a settlement conference was set for August 28, 2018. On July 3,

2018, Appellant filed a breach of contract action against Appellees, seeking

unpaid rent and possession of the property. After several continuances by the

court, a two-day non-jury trial began on December 3, 2018, and concluded

on December 11, 2018.

       At trial, Appellant’s property manager, Toby Strumpf, testified regarding

Appellees’ rent arrears in the amount of $15,583.00, plus attorneys’ fees and

costs, and claimed that Ms. Christophe was still in possession of the keys to

the property. N.T. Trial (“N.T. Trial I”), 12/3/18, at 15. Ms. Strumpf stated

that she began contacting Ms. Christophe regarding Appellees’ rent arrears in

October of 2017, that a payment was subsequently received in November of

2017, and that no further payment was made until May of 2018. Id. at 17.

       Ms. Christophe testified that she began experiencing problems with the

premises from the time she entered the lease, which interfered with the
____________________________________________


2 On December 27, 2017, Appellant filed a landlord/tenant complaint in the
Philadelphia Municipal Court at LT-17-12-27-6106.          Appellant sought
possession of the premises and a monetary judgment for unpaid rent.
Appellees filed a counterclaim on May 7, 2018, seeking damages to recover
for losses incurred due to Appellant’s breach of contractual duties. On May
14, 2018, the municipal court granted Appellant possession and a judgment
in the amount of $1,713.83 for nonpayment of rent. As to the counterclaim,
the court awarded judgment in favor of Appellees in the amount of $5,139.75.

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running of her business, i.e., a lack of heat in the building, problems with the

front door of her store, and issues with the flooring. N.T. Trial (“N.T. Trial

II”), 12/11/18, at 40-46. Ms. Christophe stated that she often complained to

management for Appellant about these issues, but to no avail.

      In addition to these ongoing problems, a sewage pipe erupted in the

store on December 19, 2017, which resulted in water and sewage throughout

the first floor of Frenchie’s, as well as a significant amount of water and

sewage in the basement where Appellees’ inventory was stored. N.T. Trial I

at 21-22; N.T. Trial II at 72. Appellant did not send a maintenance crew to

the store until December 27, 2017. After confirming the overflowing toilet,

Appellant hired Carpet Docs to extract the water and sanitize the flooring.

N.T. Trial I at 27, 31. It became apparent that the floors would have to be

replaced, which would require the clearance of the whole property.        Thus,

Appellant asked Ms. Christophe to remove her things from the store. Id. at

37. An agreement was eventually reached that Ms. Christophe would remove

all of her belongings from the property by March 4, 2018; however, Ms.

Christophe did not move her things out until “about the 21st of March.” Id.

at 42-46. Appellant stated: “We immediately went in, sanitized, ripped up the

floor, put down a whole new floor, everything was cleaned. The basement

was cleaned…. That was sanitized as well. We … did whatever we needed to

do to get her back up and running.” Id. at 45. The work was completed on

March 29, 2018. Id. at 47.




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       Contrary to Appellant’s claims, Ms. Christophe testified that she “had to

throw everything away” after the flood and that she was never able to reopen

Frenchie’s. N.T. Trial II at 50-51. Appellees lost everything as a result of the

water and sewage. Their computer was damaged by Appellant’s maintenance

workers during the initial clean up, so Ms. Christophe was unable to even

access customer information.          Ms. Christophe indicated that she paid one

month’s rent in May of 2018, because Appellant had promised to fix the store

and she had hoped to resume her business. Id. at 52. Unfortunately, she

was never able to reopen the store because it smelled, and Appellant had

failed to fix the heat. Ms. Christophe eventually moved Appellees’ belongings

out of the property on June 27, 2018, and turned in her key.3 Id. at 54, 58.

       On December 11, 2018, the trial court entered an order finding in favor

of Appellees and against Appellant. By order dated December 31, 2018, and

entered on the docket on January 2, 2019, the court vacated its December

11, 2018 order to amend the language and expressly granted Appellant

immediate possession of the premises. In addition, the court found in favor

of Appellees and awarded Ms. Christophe damages in the amount of

$7,500.00, “due to resulting damage from a lingering faulty plumbing



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3 Ms. Christophe clarified that the key she turned in was the key to the back
door, because after she had reported a problem with the front door, Appellant
had taken her front door key for repair and had never returned it to her. Id.
at 61.



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problem, which made the [lease] … unenforceable.”           Trial Court Opinion

(“TCO”), 4/3/19, at 1.

       On January 15, 2019, Appellant filed a post-trial motion for relief, which

was denied by the trial court on January 17, 2019. Appellant filed a timely

notice of appeal on January 30, 2019.4           Herein, Appellant presents the

following issues for our review, which we address out of order for ease of

disposition:

       1. Did the trial court abuse its discretion and err as a matter of
          law in its decision to not award any money damages to
          [Appellant] where the evidence clearly indicated that
          [Appellant] was entitled to relief?

       2. Did the trial court abuse its discretion and err as a matter of
          law in its inconsistent order which granted possession but
          denied [Appellant’s] claims for [damages] and granted
          [Appellees’] claims for damages?

       3. Did the trial court abuse its discretion and err as a matter of
          law in entering judgment in favor of [Appellees] on the
          counterclaim[,] as the amount awarded is not supported by the
          evidence of the law?


____________________________________________


4 Ordinarily, an appeal properly lies from the entry of judgment, not from the
order denying post-trial motions. See generally Johnston the Florist, Inc.
v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super. 1995) (en banc).
Nevertheless, a final judgment entered during pendency of an appeal is
sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and
Supply Co., 787 A.2d 1050 (Pa. Super. 2001). Although Appellant’s notice
of appeal was filed prematurely in the instant matter, judgment was
subsequently entered on March 11, 2019. Thus, Appellant’s notice of appeal
relates forward to March 11, 2019. See Pa.R.A.P. 905(a)(5) (stating that a
notice of appeal filed after a court’s determination but before the entry of an
appealable order/judgment shall be treated as if it was filed after the entry of
the appealable order/judgment and on the date of entry). Hence, no
jurisdictional defects impede our review.

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      4. Did the trial court err as a matter of law in disregarding the
         commercial lease contract?

      5. Did the trial court abuse its discretion and err as a matter of
         law by bifurcating the trial for eight days, thus separating the
         direct testimony of [Appellant’s] witness from the remainder of
         [t]he case and causing prejudice to [Appellant]?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      We apply the following standard of review to a non-jury trial verdict:

      Our appellate role in cases arising from non[-]jury trial verdicts is
      to determine whether the findings of the trial court are supported
      by competent evidence and whether the trial court committed
      error in any application of the law. The findings of fact of the trial
      judge must be given the same weight and effect on appeal as the
      verdict of the jury. We consider the evidence in a light most
      favorable to the verdict winner. We will reverse the trial court
      only if its findings of fact are not supported by competent evidence
      in the record or if its findings are premised on an error of law.
      However, [where] the issue … concerns a question of law, our
      scope of review is plenary.

      The trial court’s conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court’s duty to determine if the trial court correctly
      applied the law to facts of the case. The trial court, as the finder
      of fact, is free to believe all, part or none of the evidence
      presented. Issues of credibility and conflicts in evidence are for
      the trial court to resolve; this Court is not permitted to reexamine
      the weight and credibility determination or substitute our
      judgment for that of the fact finder.

Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d

1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks

omitted).

      Here, Appellant avers that the trial court abused its discretion and erred

as a matter of law in its decision to not award Appellant monetary damages.

Appellant presents this matter as a simple breach of contract action, in which


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it alleges that Appellees continued to remain in possession of the unit and

refuse to pay rent. Appellant’s Brief at 8. Appellant maintains that it was not

aware of any ongoing issues in the unit, that it promptly addressed any repairs

requested by Appellees, and that any delays in completing the repairs were

due solely to Ms. Christophe’s lack of cooperation. Based on the foregoing,

Appellant concludes that Appellees are obligated to pay the rent. Id. at 8,

12-13. The record clearly belies Appellant’s claim.

      From the beginning of the lease, Ms. Christophe complained of issues

such as no heat in the building, which caused severe fogging on the glass front

door and the formation of ice on the inside of the window. TCO at 4; N.T.

Trial II at 40, 43. Her customers complained “[a]ll the time” about how cold

it was in the store. N.T. Trial II at 44.   Ms. Christophe testified that she

repeatedly reported the heating problem to Appellant, beginning in November

of 2016, but that Appellant’s only response was to provide her with two small

space heaters. Id. at 40-41. Additionally, in late 2016, Ms. Christophe was

unable to use the key to open the front door of her business. Appellant took

her front door key in an attempt to fix it, but never returned it to her. Thus,

Ms. Christophe has been forced to enter her store through the back door ever

since. TCO at 4; N.T. Trial II at 44-46. Ms. Christophe also faced issues with

the flooring throughout the life of the lease. TCO at 4. She indicated that

Appellant was often nonresponsive to her complaints, that her phone calls

frequently went unanswered or messages were not returned, and that when




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she visited Appellant’s office in person on numerous occasions, she was unable

to find anyone in the office to help her. N.T. Trial II at 41-42, 46.

      In addition to all of these issues, in the winter of 2017, the sewage pipe

erupted, “resulting in sewage and fecal matter throughout the first floor and

the basement of the property[,] rendering the rented property completely

useless.” TCO at 4. Ms. Christophe testified that the eruption of the sewage

pipe occurred on December 19, 2017, but that Appellant failed to come to

inspect the damage until December 27th.        N.T. Trial II at 46, 49.   Video

footage, taken by Ms. Christophe on either December 27th or December 28th,

was produced at trial as evidence of significant water in the basement. Id. at

72. Appellees argued that, based upon the emergency events that occurred

in late 2017 and early 2018, and Appellant’s failure to remedy the property,

they were constructively evicted from the premises. See id. at 80. The trial

court agreed. TCO at 4.

      “In every lease of real property there will be implied a covenant of quiet

enjoyment.” Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. 1976). Acts

of a landlord that substantially interfere with the tenant’s anticipated use of

the premises constitute a breach of this covenant. Id. at 461. Constructive

eviction is one species of a violation of the lessee’s right to quiet enjoyment.

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 973

(Pa. Super. 2015). Kohl v. PNC Bank Nat. Ass’n, 912 A.2d 237, 249 (Pa.

2006) (noting that this Court has concluded repeatedly that a breach of the




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covenant of quiet enjoyment can be demonstrated through constructive

eviction).


      To constitute a constructive eviction, the interference by a
      landlord with the possession of his tenant or with the tenant’s
      enjoyment of the demised premises must be of a substantial
      nature and so injurious to the tenant as to deprive him of the
      beneficial enjoyment of a part or the whole of the demised
      premises, … to which the tenant yields, abandoning the possession
      within a reasonable time.

Sears, 126 A.3d at 968 (quoting Kuriger v. Cramer, 498 A.2d 1331, 1338

(Pa. Super. 1985)) (emphasis omitted).          “[P]roblems that might not

constitute a constructive eviction were they isolated, rare, and promptly

addressed by the landlord may rise to a constructive eviction when they

persist, remain unremedied, and substantially interfere over time with the

tenant’s quiet enjoyment of the leasehold.” Id. at 976-77.

      Here, Appellees presented testimony regarding numerous ongoing

problems that hindered their ability to conduct business and that remained

unremedied by Appellant, despite Appellees’ frequent complaints. Appellant

argues that the holding in Sears is not applicable to the instant matter, as it

suggests Appellees never surrendered the premises.       However, the record

clearly contradicts Appellant’s claim. Ms. Christophe attempted to reopen her

store, but was unable to due to “the foul odor of waste emanating from the

floor.” N.T. Trial II at 80. As a result, Ms. Christophe removed Appellees’

belongings from the premises and surrendered the key to Appellant. N.T. Trial

I at 54, 58. The trial court concluded that “Appellees presented a greater


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weight of evidence and, by a preponderance of the evidence[,] [it] found for

… Appellee[s].” TCO at 4.

      Appellant questions the trial court’s finding that Ms. Christophe’s

complaints regarding ongoing issues went unanswered by Appellant and

essentially asks this Court to reassess the credibility of the witnesses.

Appellant’s Brief at 13. However, it is well-settled that we cannot substitute

our judgment for that of the trier of fact. See Commonwealth v. Holley,

945 A.2d 241, 247 (Pa. Super. 2008). The trial court was free to believe

certain witnesses and to disbelieve the testimony of other witnesses, as “[t]he

trier of fact has the unique opportunity to see and hear subtleties of answers

and movements of witnesses and parties not viewable from the cold record.”

Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). The trial

court concluded that the evidence presented supported a finding in favor of

Appellees. TCO at 4. We deem the trial court’s determination to be well-

supported by the record, and we discern no abuse of discretion.

      Next, we address Appellant’s claim that the trial court’s “ruling granting

[it] possession of the property and simultaneously finding that constructive

eviction occurred is inconsistent.” Appellant’s Brief at 15. Appellant asserts

that there is no constructive eviction if the tenant continues in possession of

the whole of the premises. Id. at 14 (citing Kuriger, 498 A.2d at 1338).

While this is true, Appellant’s argument that the theory of constructive eviction

is unavailable to Appellees is based on the faulty conclusion that Appellees did

not vacate the premises. Id. at 15. The record supports, for the purpose of

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finding constructive eviction, a determination that Appellees did vacate the

premises. See N.T. Trial II at 57-58, 61 (noting that Ms. Christophe removed

Appellees’ belongings from the premises at the end of June 2018, placed the

key to the back door of the store—her only key to the premises at the time—

in an envelope, and returned the key through the slot in Appellant’s office

door). Based on the foregoing, Appellant’s claim is meritless.

      Appellant further argues that the trial court erred in finding that the

lease was unenforceable. However, the argument section of Appellant’s brief

consists merely of general statements unsupported by any analysis of relevant

legal authority whatsoever. See Appellant’s Brief at 19-21. “The Rules of

Appellate Procedure state unequivocally that each question an appellant raises

is to be supported by discussion and analysis of pertinent authority.” Coulter

v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014); see also Pa.R.A.P.

2119(a) (stating that the appellant’s brief “shall have …such discussion and

citation of authorities as are deemed pertinent”). “Appellate arguments which

fail to adhere to these rules may be considered waived, and arguments which

are not appropriately developed are waived.      Arguments not appropriately

developed include those where the party has failed to cite any authority in

support of a contention.” Coulter, 94 A.3d at 1088 (citation omitted). This

Court will not act as counsel, and will not develop arguments on behalf of an

appellant.   See id. at 1088-89 (stating that mere issue spotting without

analysis or legal citation to support an assertion precludes appellate review of

a matter). Accordingly, we deem this issue to be waived.

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      To the extent that Appellant suggests that the amount awarded by the

trial court to Appellees was an abuse of discretion and is not supported by the

record, we note:

      The duty of assessing damages is within the province of the fact-
      finder and should not be interfered with unless it clearly appears
      that the amount awarded resulted from partiality, caprice,
      prejudice, corruption or some other improper influence…. So long
      as the verdict bears a reasonable resemblance to the damages
      proved, it is not the function of the court to substitute its judgment
      for that of the [fact-finder].

Epstein v. Saul Ewing, LLP, 7 A.3d 303, 315 (Pa. Super. 2010) (citation

omitted). “In cases of breach of the covenant of quiet enjoyment, or where

the tenant is deprived of the beneficial enjoyment of the premises, … damages

can be awarded for losses which can be proved.” Pollock, 369 A.2d at 462.

“The general rule … is that [the] lessee may recover … for all losses which he

can prove he has actually sustained, or which he will necessarily sustain, under

the circumstances, as a result of the unlawful eviction.” Id. Moreover, it is

well-settled that “any wrongful act of the landlord which results in an

interference of the tenant’s possession, in whole or in part, is an eviction for

which the landlord is liable in damages to the tenant.” Kohl, 912 A.2d at 248-

49 (quoting Kelly v. Miller, 94 A. 1055, 1056 (Pa. 1915)).

      Here, Appellees’ counterclaim asserts damages in the amount of

$5,000.00 in lost profits and $6,928.54 in lost inventory. Appellee produced

exhibits at trial containing documentation for these amounts. See N.T. Trial

II at 55-57. Contrary to Appellant’s claim, the trial court’s award of $7,500.00



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to Appellees is supported by the record and, thus, we discern no abuse of

discretion.

      Lastly, Appellant argues that the trial court abused its discretion and

erred as a matter of law by bifurcating the trial. Appellant suggests that the

“splitting of the trial was prejudicial to [its] case[.]” Appellant’s Brief at 22.

In response to Appellant’s claim, the trial court opined:

            From the beginning of testimony, [] Appellant’s counsel, Ms.
      Baylarian, informed the [c]ourt that she was “scheduled
      elsewhere at one o’clock in the afternoon.” Throughout the day,
      both parties were less than candid to the [c]ourt about the time
      they needed. After [] Appellant rested and before [] Appellees
      put on their case[,] the [c]ourt status the matter [sic]. Once
      again, [] [Ms. Baylarian] announced to the [c]ourt that she ha[d]
      []to be in Municipal Court at one o’clock, which was her only
      concern.[] After hearing from [] Appellees that they were not in
      opposition to continuing the matter, the [c]ourt decided it was in
      the best interest to bifurcate the remaining portion of the case.
      After reviewing and comparing schedules, the [c]ourt and both
      parties agreed to December 11, 2018. This date fell on a pre-
      planned off[-]week for the [c]ourt and yet, the [c]ourt
      accommodated the requested date of the parties. At no point did
      [] Appellant complain of possible prejudice against [its] witness in
      accepting the new date to complete the trial.

TCO at 5-6 (citations to record omitted).        Appellant’s claim of prejudice

contains nothing more than bald assertions and fails to demonstrate any

actual prejudice. Moreover, we emphasize that the trial court continued the

trial to accommodate Appellant’s counsel’s schedule. We deem Appellant’s

claim to be wholly without merit.

      Accordingly, we affirm the March 11, 2019 judgment entered in favor of

Appellees.



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     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/20




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