J-S21016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BCJ MANAGEMENT, L.P.                    :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 LEEA RUSSELL                            :   No. 957 WDA 2017

               Appeal from the Order Entered May 30, 2017
     In the Court of Common Pleas of Allegheny County Civil Division at
                          No(s): LT-17-000323



BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                             FILED MAY 08, 2018

     BCJ Management, L.P. (Appellant) appeals from the order sustaining the

preliminary objections of Appellee, Leea Russell (Russell), and dismissing

Appellant’s eviction complaint with prejudice. We affirm.

     Appellant is a property management firm.        On October 22, 2014,

Appellant and Russell executed a public housing agency (PHA) lease

agreement for Russell to lease an apartment at 100 Jamal Place, Pittsburgh,

Pennsylvania, 15213.    The apartment is part of the Oak Hill Apartments

housing community (the Premises). Pursuant to Section 9(K)(2) of the lease,

Russell agreed to not engage in “[a]ny criminal activity that threatens the

health, safety, or right to peaceful enjoyment of the Premises by members of

the Household, Guests, other Tenants or employees of [Appellant] or persons

residing in the immediate vicinity of the Premises.” Lease Agreement at 10,
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Ex. to Appellant’s Complaint (emphasis added). If Russell failed to comply

with this provision, it “shall be considered a material breach of the Lease and

cause for eviction.” Id. at 9. Additionally, Section 20A(b) of the lease sets

forth conduct that would result in immediate eviction, including “criminal

activity that threatens the health, safety, or right to peaceful enjoyment of

the premises by other residents, employees of [Appellant], or persons residing

in the immediate vicinity of the premises.” Id. at 19 (emphasis added).

Pertinently, the lease does not define “the immediate vicinity of the Premises.”

       On October 16, 2016, Appellant was arrested and charged with simple

assault and terroristic threats as a result of an incident that occurred in a

courtyard outside of an apartment at 2523 Chauncey Drive, Pittsburgh, PA

15219, located in the Bedford Dwellings housing community, approximately

1.2 miles from the Premises. The complaining witness, Darcetta Epps, told

police that Russell punched Ms. Epps’ face several times, drew a small black

handgun from her pocket, pointed it at Ms. Epps’ face, and screamed “I’m

going to kill you!”1 According to Russell, the terroristic threats charge was

withdrawn, and she was found not guilty on the remaining charges — two

counts of simple assault. Russell’s Brief at 5 n.2, citing Commonwealth v.

Russell, CP-02-CR-0012827-2016 (Allegheny Co.).


____________________________________________


1 City of Pittsburgh Bureau of Police Investigative Report, 10/16/16, at 1-2,
Ex. to Appellant’s Complaint. Ms. Epps lived at Bedford Dwellings, and also
told police that on the previous evening, she and Russell had an altercation to
which police responded.

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      On January 31, 2017, Appellant filed an eviction complaint in the

Magisterial District Court. The court found in Russell’s favor, and Appellant

appealed to the Court of Common Pleas, filing a complaint on March 30, 2017.

The complaint averred: the Premises are “located within a larger community

commonly known as Oak Hill;” the courtyard where the alleged assault

occurred is “located within the housing project known as Bedford Dwellings;”

and the Premises and the courtyard “are within three (3) to four (4) minutes

driving distance . . . and therefore . . . Epps is a person residing in the

immediate vicinity of the Premises.” Appellant’s Complaint, 3/30/17, at ¶¶ 3,

12, 14. The complaint further asserted that Appellant’s alleged assault was a

breach of Sections 9(K)(2) and 20A(b) of the lease and thus eviction was

justified.

      Russell, represented by counsel, filed preliminary objections, arguing

that Appellant’s complaint was legally deficient because the alleged criminal

activity did not occur in, nor involve a resident from, the “immediate vicinity”

of the Premises. Russell pointed out that Bedford Dwellings is located more

than one mile from the Premises, and that the two locations have different zip

codes and are separated by a third neighborhood, Middle Hill, as well as

undeveloped woods. Appellant filed an answer stating, for the first time, that

the Premises and Bedford Dwellings “are both located within the Hill District,

a community that is represented primarily by one (1) member of Pittsburgh

City Council and one (1) member of Allegheny County Council.” Appellant’s


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Answer to Preliminary Objections, 5/8/17, at ¶ 4.

        On May 31, 2017, the trial court sustained Russell’s preliminary

objections and dismissed Appellant’s complaint with prejudice. The court took

judicial notice of an online Google map2 showing that, depending on the route,

the driving distance between the Premises and the location of the alleged

assault was 1.2 to 1.6 miles and the walking distance was 1.1 to 1.5 miles.

Trial Court Opinion, 10/12/17, at 3 n.1. The court held that these distances

were sufficient to support a determination that, as a matter of law, the alleged

crime did not occur “within the immediate vicinity of the premises.” Id. at 3.

The trial court thus concluded “that it was clear that [Appellant] would be

unable to prove facts sufficient to establish its right to relief.” Id. We note

that in support, the court cited Powell v. Hous. Auth., 760 A.2d 473 (Pa.

Cmwlth. 2000) (“Powell I”), rev’d, 812 A.2d 1201 (Pa. 2002) (“Powell II”),

in which the trial court upheld the administrative agency’s factual finding that,

pursuant to the term “immediate vicinity” in Section 8 of the United States

Housing Act, 42 U.S.C. § 1437f, the location of a crime 0.8 miles from the

Section 8 tenant’s residence was not in the residence’s “immediate vicinity.”3

The court also relied on Hous. Auth. of City of Pittsburgh v. Mitchell, 2014


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2 https://www.google.com/maps/dir/100+Jamal+PI,+Pittsburgh,+PA+15213
/2523+Chauncey+Dr,+Pittsburgh,+PA+15219/@40.4514855,-79.9754054,1
7z/data=!3m1!4b1!4m8!4m7!1m0!1m5!1m1!1s0x8834f3d03a7bc6c7:0x881
762a80e736ae7!2m2!1d-79.9732167!2d40.4514855.

3   We discuss Powell I and Powell II, infra, at pages 8 - 9.

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Pa. Dist. & Cnty. Dec. LEXIS 5022, which cited Powell I and held that criminal

activity that occurred more than 1.5 miles from the tenant’s residence was

not in the immediate vicinity of the residence.

      Appellant timely appealed and complied with the court’s order to file a

Pa.R.A.P. 1925(b) statement of errors. It presents one issue for our review:

      Whether the Trial Court committed an error of law and/or abused
      its discretion by sustaining the Preliminary Objections of Russell
      and dismissing [Appellant’s] Complaint without permitting
      [Appellant’s] claims to proceed to a factual hearing for the purpose
      of determining (a) the appropriate definition of the neighborhood
      relevant to [Appellant’s] claims and (b) whether Russell’s criminal
      activity occurred within the immediate vicinity of her residential
      dwelling unit and the housing community wherein such unit is
      located?

Appellant’s Brief at 3.

      Appellant first cites the Oxford Dictionary definition of “neighborhood”

as “a district, especially one forming a community, within a town or city.” Id.

at 11-12.   Appellant maintains the term “neighborhood” is not limited by

definition of a certain distance, and reiterates that the Premises and Bedford

Dwellings are both located within Pittsburgh’s Hill District. Next, Appellant

reasons that the trial court’s reliance on Powell I and Mitchell was misplaced

because in those cases, the trial court reached its decision after a factual

record was made. Appellant thus concludes that the trial court’s ruling was

manifestly unreasonable because there was no factual inquiry, and requests

remand for a hearing to determine whether the Premises and Bedford

Dwellings “are located within the same neighborhood.” Id. at 13-14.


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      This Court has stated:

         A preliminary objection in the nature of a demurrer is properly
      granted where the contested pleading is legally insufficient.
      “Preliminary objections in the nature of a demurrer require the
      court to resolve the issues solely on the basis of the pleadings; no
      testimony or other evidence outside of the complaint may be
      considered to dispose of the legal issues presented by the
      demurrer.” All material facts set forth in the pleading and all
      inferences reasonably deducible therefrom must be admitted as
      true.

             In determining whether the trial court properly sustained
         preliminary objections, the appellate court must examine
         the averments in the complaint, together with the
         documents and exhibits attached thereto, in order to
         evaluate the sufficiency of the facts averred. The impetus
         of our inquiry is to determine the legal sufficiency of the
         complaint and whether the pleading would permit recovery
         if ultimately proven. This Court will reverse the trial court’s
         decision regarding preliminary objections only where there
         has been an error of law or abuse of discretion. When
         sustaining the trial court’s ruling will result in the denial of
         claim or a dismissal of suit, preliminary objections will be
         sustained only where the case i[s] free and clear of doubt.

Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa. Super. 2012)

(citations omitted).

      “When terms in a contract are not defined, we must construe the
      words in accordance with their natural, plain, and ordinary
      meaning.” As the parties have the right to make their own
      contract, we will not modify the plain meaning of the words under
      the guise of interpretation or give the language a construction in
      conflict with the accepted meaning of the language used.

Profit Wize Mktg. v. Wiest, 812 A.2d 1270, 1274-75 (Pa. 2002) (citations

omitted).

      Appellant’s complaint in eviction is based on an alleged breach of

contract: that Russell breached clauses in the lease prohibiting her from

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perpetrating criminal activity that threatens the health, safety, or right to

peaceful enjoyment of others residing in the “immediate vicinity” of the

Premises. However, as stated above, the term “immediate vicinity” is not

defined in the lease. Rather than addressing the plain meaning of the terms

“immediate” and “vicinity,” however, Appellant argues that this Court — and

the trial court — should consider whether the Premises and Bedford Dwellings

are in the same “neighborhood.”                Appellant’s Brief at 11-12, citing

https://en.oxforddictionaries.com/definition/us/neighborhood.        However, as

Russell points out, Appellant wholly ignores the word “immediate.”           See

Russell’s Brief at 13 (Appellant’s interpretation “would render superfluous the

key modifier ‘immediate’”).4

       While Appellant’s complaint characterized the Premises as located

“within a larger community commonly known as Oak Hill,” the only support

for Appellant’s claim that the two locations were in the same “immediate

vicinity” were statements that they are a three to four-minute drive apart and

that they are both in the Hill District. See Appellant’s Complaint at ¶ 14;

Appellant’s Answer to Preliminary Objections at ¶ 4. Accordingly, we hold that

the trial court did not err in finding these statements insufficient to establish

that the alleged assault occurred in the “immediate vicinity” of the Premises.



____________________________________________


4Appellant’s source defines immediate as “nearest or next to in space.” See
https://en.oxforddictionaries.com/definition/us/immediate.


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Therefore, the court did not abuse its discretion or commit an error of law in

sustaining    Russell’s    preliminary    objections   and   dismissing   Appellant’s

complaint with prejudice. See Weiley, 51 A.3d at 208.

       Finally, because the trial court and both parties rely on                 the

Commonwealth Court’s decision in Powell I, we note that Powell I may be

distinguished because, while that decision addressed the term “immediate

vicinity” as it appears in federal Section 8 and HUD regulations, Appellant’s

issue presents a question of contract interpretation.5 Further, the claim raised

in Powell I — and not reached in Powell II on mootness grounds — was that

the trial court, on statutory appeal from an administrative agency’s decision,

erred in disregarding factual findings made by the agency’s hearing officer.

Powell I, 760 A.2d at 483. The Commonwealth Court resolved this issue by

holding that it was a question of law to be properly decided by the trial court.

Id.; see Powell II, 812 A.2d at 1208 n.9 (“Where, as here, a complete record

was developed before the local agency, the court reviewing the matter on

appeal must affirm the local agency unless it is determined that constitutional

rights were violated, that an error of law was committed, that the procedure

before the agency was contrary to the statute or that necessary findings of



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5 While the lease terms at issue in this case are based on Section 8 provisions,
Appellant has made no mention before the trial court or in its appellate brief
that its lease with Russell involved PHA assistance. See Lease Agreement at
1 (title of lease is “OAK HILL LEASE AGREEMENT, (PHA-Assisted Unit)”).


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fact were unsupported by substantial evidence.”). Here, there was no agency

decision and corresponding appeal to the Court of Common Pleas. Instead,

Appellant filed a landlord/tenant eviction complaint in the Magisterial District

Court, and subsequently, on appeal, a complaint in the Court of Common

Pleas.6 Nonetheless, in the instant case, Powell I is instructive where the

record supports the trial court’s determination that “the alleged crime at issue

occurred at a location that was not within the immediate vicinity of the

[P]remises.” Trial Court Opinion, 10/12/17, at 3.

       In sum, we hold the trial court did not abuse its discretion or err in

sustaining    Russell’s    preliminary    objections   and   dismissing   Appellant’s

complaint with prejudice.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8 /2018




____________________________________________


6 We also decline to consider the Court of Common Pleas’ decision in Mitchell,
2014 Pa. Dist. & Cnty. Dec. LEXIS 5022.          See Sysco Corp. v. FW
Chocolatier, LLC, 85 A.3d 515, 520 n.2 (Pa. Super. 2014) (“It is well-settled
that Court of Common Pleas decisions ‘are not binding precedent for this
Court.’”).

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