J-S70007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VIKAS GUPTA                              :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
CONSOLIDATED PROPERTIES, LLC             :
                                         :
                  Appellant              :         No. 810 MDA 2017

             Appeal from the Judgment Entered April 25, 2017
           In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 12-7444


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 21, 2017

     Appellant, Consolidated Properties, LLC (“Landlord”), appeals from the

judgment entered in the Cumberland County Court of Common Pleas, in

favor of Appellee, Vikas Gupta (“Tenant”), in this landlord-tenant action. We

affirm in part, vacate in part, and remand for modification of damages.

     In its opinion, the trial court set forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them. We add

that the court denied Landlord’s motion for reconsideration on April 19,

2017, and entered judgment in favor of Tenant on April 25, 2017. On May

18, 2017, Landlord filed a timely notice of appeal. On May 23, 2017, the

court ordered Landlord to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and Landlord timely complied.

     Landlord raises the following issues for our review:
J-S70007-17


         [WHETHER THE TRIAL COURT ERRED WHEN IT
         DETERMINED] A LANDLORD [DOES NOT HAVE] AN
         OPPORTUNITY TO REMEDY AN ALLEGED DEFECT IN
         RESIDENTIAL RENTAL PROPERTY UNDER PENNSYLVANIA’S
         IMPLIED WARRANTY OF HABITABILITY?

         [WHETHER THE TRIAL COURT ERRED WHEN IT
         DETERMINED] [TENANT] SUSTAIN[ED] HIS BURDEN OF
         PROOF THAT A PROPERTY VIOLATED PENNSYLVANIA’S
         IMPLIED WARRANTY OF HABITABILITY WHERE [TENANT]’S
         PHOTOGRAPHIC EVIDENCE WAS INCONSISTENT WITH HIS
         TESTIMONY?

         [WHETHER THE TRIAL COURT ERRED WHEN IT
         DETERMINED] A WRITTEN, EXECUTED ACCORD AND
         SATISFACTION [DID NOT] BAR [TENANT] FROM
         PURSUING A CLAIM WHERE [LANDLORD] RETURNED THE
         SECURITY DEPOSIT AS CONSIDERATION?

         [WHETHER THE TRIAL COURT ERRED WHEN IT AWARDED
         TENANT LOST WAGES?]

(Landlord’s Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Merle L.

Ebert, Jr., we conclude Landlord’s issues one through three merit no relief.

The trial court opinion comprehensively discusses and properly disposes of

the questions presented. (See Trial Court Opinion, filed July 17, 2017, at 5-

10) (finding: (1-2) insects heavily infested apartment; Tenant and Tenant’s

wife credibly testified regarding degree of infestation; Tenant submitted

documentary evidence showing insects remained in apartment after several

extermination treatments and cleanings; Landlord failed to eliminate insect

infestation for approximately one-third of lease period; evidence presented


                                    -2-
J-S70007-17


at trial indicated Landlord had notice of insect infestation, and reasonable

opportunity to remedy infestation, but failed to do so in reasonable time

frame; degree of insect infestation prevented Tenant from using apartment

for intended purpose of habitation; Tenant had reasonable concerns for

health and safety of his family due to conditions inside apartment; record

does not support Landlord’s contention that trial court created separate

standard of habitability between lower-income and higher-income rental

housing; court properly found Landlord breached implied warranty of

habitability and correctly awarded damages to Tenant; (3) first, no

reasonable dispute existed between parties; Tenant was unable to live in

residence due to insect infestation; Tenant did not breach lease agreement

when Tenant vacated residence because apartment was uninhabitable;

second,   Landlord    gave   up   nothing   in   consideration   of   accord   and

satisfaction; Landlord owed Tenant return of security deposit regardless of

whether parties purportedly reached meeting of minds; finally, Tenant did

not accept and retain Landlord’s offered payment; Tenant initially accepted

Landlord’s return of security deposit but immediately rejected it; Tenant

communicated his rejection to Landlord and refused to cash check;

therefore, Landlord failed to establish accord and satisfaction). We accept

the court’s analysis and affirm as to issues one through three on the basis of

the trial court opinion.

      On the issue on damages, however, the trial court and the parties


                                      -3-
J-S70007-17


agree that the court should not have considered or awarded anything for lost

wages and travel expenses. The trial court asks us to remand the case to

allow the court to modify the judgment to remove the amount awarded to

Tenant for lost wages and travel expenses. Accordingly, we affirm the trial

court’s decision in part; but we vacate the judgment in part and remand for

modification of the damages to exclude lost wages and travel expenses.

      Judgment affirmed in part and vacated in part; case remanded for

modification of damages. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




                                    -4-
                                                                                              Circulated 11/02/2017 09:21 AM



VIKAS GUPTA,                               :        COURT OF COMMON PLEAS OF
                                               IN THE
          PLAINTIFF                        :   CUMBERLAND COUNTY, PENNSYLVANIA

       V.

CONSOLIDATED PROPERTIES,
         DEFENDANT-                        :        2012=7444-CIVIL

                  IN RE: OPINION PURSUANT TO PA. R.A.P. 1925(a)

       In this civil action, Consolidated Properties (hereinafter, "Appellant") challenges

the verdict entered in favor of Appellee, in the amount of $3,677.66 plus costs and

interest, following a non -jury trial in this matter. The verdict was recorded on November

30, 2016, and Appellant filed a timely post -trial motion for post -trial relief on December

12, 2016. That motion was denied by an Opinion and Order of Court dated April 19,

2017. Appellant filed a timely Notice of Appeal on May 18, 2017, and a statement of

errors complained of on appeal on June 12, 2017. Appellant's three pages of bases for

appeal are as follows:

       1.     The decision of this Court was erroneous as           a   matter of law.

       2.     The Court's Opinion awarded damages for lost wages.

               There is no basis in law for such an award.

       4.      There is no contractual basis for such an award.

       5.      There is no basis in the Lease for such an award.

       6.      The Court failed to apply properly the burden of proof required of Plaintiff.

       7.      The Court's finding of a breach of warranty of habitability is inconsistent
               with Pennsylvania law presented at trial and in Defendant's trial brief.

        8.     The Court applied a standard for the warranty of habitability that goes
               beyond existing Pennsylvania law.

        9.     The Court's Opinion appears to confuse the warranty of habitability with
               concepts related to marketability.

                                                1

                                                                                                            Nti
                                                                                              III

                                                        111111E146
                                                        2012-07444-0039 F#1184916 Fee.10.00
                                                                                                    11111
                                                        OPINION

                                                        Rcpt Z145730 7/17/2017 10:3905 AM
                                                        David 0. Buell, County Prothonotary
                                                                                                                               39
10.   The Court applied a higher standard for the warranty of habitability
      because the rental unit in question was higher priced than many other
      units in the market.

11.   The warranty of habitability and the standards for habitability in a rental
      unit are not dependent on the rental rate.

12.   The Court's Opinion would create separate standards of habitability
      between more expensive housing and affordable housing.

13.   The Court's Opinion would result in discriminatory standards for the
      warranty of habitability.

14.   The Court failed to apply the law regarding the accord and satisfaction
      entered into between the parties and introduced at trial.

15.   The Court's findings were inconsistent with admissions made by Plaintiff
      during trial, including admissions regarding the accord and satisfaction
      and admissions regarding Plaintiff's claimed damages.

16.   The Court refused to find the existence of an accord and satisfaction due
      to post -accord conduct by Plaintiff, including Plaintiff's failure to cash the
      check, even though the payment rendered the money unavailable to
      Defendant, thus constituting valid consideration.

17.   The Court refused to find the existence of an accord and satisfaction
      because any such finding would prevent a tenant from pursuing warranty
      of habitability claims.

18.   Contrary to such a holding, accord and satisfaction is available to any
      party seeking to settle any claim, including habitability claims.

19.   The Court based its finding on the assumption that there was no genuine
      dispute that would justify withholding the security deposit, contrary to the
      disputed facts in this case.

20.   Defendant's position at the time of the accord and satisfaction was that
      Plaintiff was not justified in breaking the lease, thus justifying the
      withholding of the security deposit and creating a legitimate dispute for the
      purpose of accord and satisfaction.

21.   Accord and satisfaction is a viable alternative available to all parties to
      settle disputed issues, including disputed factual issues.

22.   The Court's holding rendered such an alternative unavailable.

                                       2
      23.    With regard to the Court's findings regarding breach of implied warranty of
             habitability, accord and satisfaction and damages, the Court's findings
             were:
             (a)    based on insufficient evidence;
             (b)    against the weight of the evidence;
             O      contrary to the law.

      24.    The Court's findings with regard to the existence of insects at the
             premises in question were against the Plaintiffs own evidence, which
             evidence revealed photographs only of one or two insects in any one
             photograph.

      25.    The Court's reliance upon testimony of Defendant's expert for the
             proposition that insects remained in the premises many days after the
             initial treatment is not supported by the expert's actual testimony.

      26.    Defendant's expert's repeat visits were for preventative maintenance and
             for treatment of the outside of the premises.

      27.    Defendant's expert contradicted Plaintiff as      to   the number of insects and
             the extent of any problem.

                     Statement of Facts and Procedural History

      The parties entered into a written, short-term lease agreement on July 10, 2012.

The lease was envisioned to cover a very short, ninety day term, from July 16, 2012,

until October 15, 2012, for the upper level of a fully furnished house in what has been

stylized as an upscale housing arrangement. Appellee was to pay Appellant the sum of

$1,690.00 per month, in addition to   a   $900.00 security deposit, for the duration of the

lease. Appellee did in fact pay Appellant $1,690.00 in advance rent, the $900.00

security deposit, and an additional $112.66     in   order to move   in early.


      Appellee, his wife and their young child arrived at the apartment on Friday, July

13, 2012, and unpacked their vehicle. Appellee was then required to immediately

depart for a business commitment in North Carolina. That evening, Appellee received a

phone call from his wife, informing him that the apartment was overrun with then -

                                                3
unknown insects, later identified as millipedes. Appellee immediately abandoned the

business trip and returned from North Carolina that night. Appellee reported to Appellant

on Sunday, July 15, 2012, that the residence was infested with insects, that he was

concerned that the still -unknown insects posed      a   health hazard to his toddler, and that

he wished for Appellant to resolve the infestation as soon as possible.

       On Monday, July 16, 2012, at approximately 6:00 A.M., Appellee informed

Appellant that he was moving his family out, and that he would not return until the insect

infestation ended. Appellee cited his concern that he and his wife killed at least one

hundred and thirty insects since Friday evening, and that the infestation did not seem to

be slowing down. Appellant assured Appellee that the matter would be resolved, and

dispatched an exterminator to treat the property that same day.

       The exterminator treatments between July 16 and August 10, 2012, failed to cure

the problem. Appellee was told on more than one occasion that the problem was

resolved and Appellee inspected the property several times, finding insects to still be

present. In light of the ongoing insect infestation, and fears about exposing his toddler to

both the insects and the pesticides sprayed on the premises, on July 28, 2012, Appellee

signaled that he would not move back into the property. Appellee requested the return

of the advance rent and the security deposit, which Appellant refused. Eventually,

Appellant agreed to return Appellee's security deposit only, on the condition that

Appellee sign   a   release of liability. Appellee ultimately did sign the release, then

communicated his rejection of the document and did not cash the check for the security

deposit. Appellee brought an action before the magisterial district judge in order to

recover both the security deposit and the advance rent.



                                                 4
       Appellee prevailed before the magisterial district judge and received              a   verdict   in


the amount of $2,217.66, prompting Appellant to appeal that decision. A Board of

Arbitrators was appointed to hear the matter. They found for Appellee in the amount of

$3,811.24. Appellant appealed that decision to this court, and a de novo hearing was

held on November 03, 2016. By Order of Court dated November 30, 2016, this court

found in favor of Appellee in the amount of $3,677.66 plus costs and interests. That sum

encompassed $1,690.00 for the advance rent paid by Plaintiff, $900.00 for the security

deposit, $860.00 for Appellee's lost wages, $112.66 for Appellee's early move -in fees,

and $115.00 for Appellee's filing fees at the magisterial district judge level. Appellant

filed the instant motion for reconsideration on December 12, 2016, and oral arguments

were scheduled for March 15, 2017. Due to inclement weather the oral arguments were

rescheduled and held on March 28, 2017. Appellant's motion for reconsideration was

denied, leading to the instant appeal and prompting this Opinion pursuant to Pa. R.A.P.

1925(a).

                                             Discussion

       To begin, this court notes that Appellant presents twenty-seven enumerated

paragraphs and three sub -paragraphs containing errors complained of on appeal. As

stated by the Honorable Ruggero J. Aldisert of the United States Court of Appeals for

the Third Circuit:

               When read an appellant's brief that contains ten or twelve
                           I




               points, a presumption arises that there is no merit to any of
               them. do not say that it is an irrebuttable presumption, but it
                       I


               is a presumption that reduces the effectiveness of appellate
               advocacy...1

  Aldisert The Appellate Bar: Professional Competence and Professional Responsibility   -A View From
the Jaundiced Eye of One Appellate Judge, 11 Cap. U.L. Rev. 445, 458 (1982).


                                                   5
Here, in light of the plethora of errors raised on appeal, this court will attempt to

consolidate the issues raised where possible. Where any of Appellant's issues have

been inadvertently missed, this court will rest on the record, such as it is in this case,

including the Opinion and Order of Court dated April 19, 2017.               It   should be noted that

no transcript of the proceedings was prepared in time for this opinion, due to Appellant's

failure to comply with the requirements of Pa. R.J.A. 4007.2

        a.   Breach of the implied warranty of habitability

       At the core of Appellant's issues complained of on appeal is the contention that

Appellee failed to demonstrate a breach of the implied warranty of habitability. In order

to sustain an action for a breach of the implied warranty of habitability, a plaintiff must

prove that notice of the defective conditions was given to the defendant, that the

defendant had     a   reasonable opportunity to correct the defects, and that the defects

were not corrected. Fair v. Neqley, 257 Pa. Super. 50, 54-55, 390 A.2d 240 (Pa. Super.

1978). The defect must be of the kind and nature which would prevent the use of the

property for its intended purpose to provide fit habitation. Glickman Real Estate

Development v. Korf, 446 A.2d 300, 302 (Pa. Super. 1982).

        Here, the residence in question was heavily infested with insects. Appellee and

his wife credibly testified regarding the size of the infestation, with Appellee and his wife

personally killing well in excess of one hundred insects without making                 a dent in the


swarm. Circumstantial evidence supported this conclusion; notably, within forty eight



2Notably, while Appellant did file Requests for Transcript with the Prothonotary's office on May 18, 2017
and June 12, 2017, Appellant failed to properly comply with the filing and service requirements of Pa.
R.J.A. 4007(b), and failed to post a deposit pursuant to Pa. R.J.A. 4007(D)(1) or allege an economic
hardship or that the court or county should be responsible for the transcript cost, pursuant to Pa. R.J.A.
4007(E1 or   a.
                                                      6
hours of moving in Appellee cancelled his business activities in North Carolina and

drove back to Pennsylvania to help his family move out. Documentary evidence

submitted by Appellee proved that even after pest control treatments at the property,

and affe-r-Appellant's representatives meticulously cleaned and -inspected the residence

several times, insects were still present inside the residence.3 In short, Appellee left the

residence due to        a   heavy insect infestation. Even after weeks of pest control treatments,

and regular cleaning of the residence by Appellant, the infestation was not completely

resolved. Appellee's lease for the property was for only ninety days, meaning that

Appellant failed to correct the insect infestation after one-third of the lease period

passed.

          Appellant also contends that this court erred by creating separate standards of

habitability between lower -income and higher -income rental housing, which would lead

to discriminatory standards for the warranty of habitability        in   the April 19, 2017, Opinion

and Order of Court. That contention is not borne out by the record in this case. Instead,

this court noted that the facts that this case presented were that the premises that

Appellee contracted for was not delivered in         a   habitable condition. That notation had no

impact on the ultimate conclusion that the apartment in question was infested with

insects and constituted a breach of the implied warranty of habitability.

           Due to the facts determined after trial in this matter, this court properly concluded

that Appellant had notice of the insect infestation, had a reasonable opportunity to cure

the defect and was unable to cure the infestation within a reasonable time frame. The

insect infestation was such that Appellee was unable to utilize the property for its

intended purpose, human habitation. Appellant's argument that Appellee could have

3   See e.g. Plaintiff's Exhibits 3-10.

                                                     7
resided in the residence with his wife and toddler while     it   received exterminator

treatments was not persuasive to this court. This court especially concluded that

Appellee had reasonable concerns for the health and safety of his toddler by remaining

in the residence.

       Further, this court did not find Appellant's argument persuasive that Appellee was

under some obligation to perform      a   detailed census of the insects present, or spend

time arranging for them to be photographed, rather than simply killing them and

disposing of them. Nor was it   a   compelling argument that the failure of Appellee to do so

should have been construed against him. Finally, Appellant's representative provided

testimony that an alternative residence would not be available for Appellee for at least

six weeks, or until roughly half of the lease period passed. In light of such, this court

properly found that the implied warranty of habitability was breached by Appellant and

that Appellee was entitled to recover damages.

       b.   Accord and satisfaction

       Appellant's arguments regarding an accord and satisfaction were not compelling

to this court. As stated by the Supreme Court:

               Our cases make clear that the burden was on the appellant
               to establish "accord and satisfaction." The same elements
               are necessary to show the existence, of an "accord and
               satisfaction" as to show the existence of any contract. There
               must be a "meeting of the minds." There must be
               consideration, which in the case of an accord and
               satisfaction, means that a reasonable dispute exists between
               the parties. As we explained in Law v. Mackie, 373 Pa. 212
               at 221, 95 A.2d 656 (1953), citing Lucacher v. Kerson, 355
               Pa. 79, 48 A.2d 857 (1946): "Where there is a dispute or
               disagreement between the debtor and creditor as to their
               respective rights, a payment tendered in full satisfaction of
               the other's claim operates as an accord and satisfaction if
               the payment is accepted and retained. On the other hand, in


                                                  8
                  the absence of such a controversy, the payment of a part of
                  the amount due under a contract, even though accepted by
                  the creditor as in full satisfaction of the debt, does not work a
                  discharge of the entire indebtedness, for the reason that
                  there is no consideration for the creditor's agreement that it
                  should so oerate."

 Brunswick Corp. v. Levin 442 Pa. 488, 491, 276 A.2d 532 (Pa. 1971) (internal citations

 omitted in part, emphasis added).

         In the   instant case, this court found that Appellant failed to meet its burden to

 establish an accord and satisfaction. First, there was not           a   reasonable dispute between

the parties. Appellee was not able to reside in the residence due to the heavy insect

infestation which Appellant was not able to cure within a reasonable amount of time, as

discussed above. Notably, the record reflects that Appellant had an extermination

treatment performed at the residence after           it   informed Appellee that the residence was

insect free.4 In order to create a dispute between the parties, Appellant argued that

Appellee breached the lease by vacating the residence. It would be patently

unreasonable for this court to accept Appellant's argument that Appellee breached the

lease, when the reason that Appellee left the residence was because the residence was

uninhabitable due to the insect infestation. To accept the Appellant's position, one

would have to find that after paying over $2,702.66 for what was described as an

upscale apartment for 90 days and having moved his family into the dwelling, the

Appellant was so unreasonable and arbitrary that he would abandon his business

activities, return home from North Carolina, undertake the incredible hassle of relocating

his family all because of some unfounded claim of insect infestation. As a matter of

fact, this Court found that explanation absurd. Because it would be unreasonable to

 See, e.q., Defendant's Exhibit 2, at 3 (wherein exterminator services were invoiced for August 10,
                                                                                                    2012),
see also Plaintiff's Complaint at ¶37.

                                                     9
conclude that Appellee breached the lease, this court cannot find that there was a

reasonable dispute between the parties. Therefore, there cannot be an accord and

satisfaction in this case.

         Second, it would-be unreasonabTe fc-- this court to accept Appellant's position

that there was some consideration that Appellant gave up in order for there to be a

meeting of the minds between the parties. Appellant's position for this argument is,

again, based on the unreasonable premise that Appellee breached the lease by leaving

an uninhabitable residence. Because the underlying dispute was inherently

unreasonable, Appellant's sole consideration was to offer to return     a     security deposit

that was already legally due and owing to Appellee. See     Clg   P.S. §250.512. Because the

security deposit was already due and owing to Appellee, Appellant gave up nothing in

consideration of an accord and satisfaction. Therefore, there was no accord and

satisfaction.

         Finally, the payment offered by Appellant was not accepted and retained.

Appellee initially accepted the payment, then immediately rejected      it,   communicated

that rejection to Appellant and refused to cash Appellant's check. As such, this court

properly concluded that Appellant did not meet its burden    to   demonstrate the existence

of an accord and satisfaction, and should properly be affirmed on appeal.

         c. Lost wages

          On appeal, Appellant correctly contends that the $860.00 award for lost wages

and travel expenses was improper. At trial, counsel for Appellee agreed with Appellant's

objection that these damages were not properly available for consideration by this court

in   this lawsuit. As such, the damages for lost wages and travel expenses should not



                                              10
have been awarded. Therefore, this case should properly be remanded for a

modification of the damages awarded to Appellee by removing $860.00 from the

judgment entered against Appellant.

                                         Conclusion

       Appellee and Appellant contracted for the short-term rental of an apartment.

Upon moving into the apartment, Appellee discovered that it was infested with

millipedes and uninhabitable. After moving out, Appellant refused to return Appellee's

security deposit and rent, despite Appellee being unable       to   reside in the premises due

to the insect infestation. This court properly concluded that the insect infestation was of

a size and   duration as to constitute a breach of the implied warranty of habitability, and

that the breach existed from day one of the lease. The record reflects that Appellee and

his wife killed in excess of one hundred insects over the course of two days without

diminishing the size and scope of the infestation, and the record reflects that the

premises was still receiving extermination treatments up to one month after Appellee's

scheduled move -in date. This court further concluded that there was no accord and

satisfaction present in this case, as there was no reasonable dispute between the

parties, no consideration offered on the part of Appellant, and no acceptance and

retention of the payment by Appellee. Finally, the amount of the damages awarded

should be modified to remove the improper inclusion of $860.00 in lost wages and travel

expenses for Appellee.

                                                          By the Court,




                                                          M.   L.   Ebert, Jr.,



                                              11
../uglas C. Lovelace, Jr., Esquire
   Attorney for Plaintiff

   David J. Lanza, Esquire
   Attorney for Defendant




                                     12
