J-A02023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROSANNA M. JOHNSON                                IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

PB SERVICES, INC., REAL ESTATE

                            Appellee                  No. 1468 MDA 2015


                  Appeal from the Order Entered July 28, 2015
            In the Court of Common Pleas of the 39th Judicial District
                              Franklin County Branch
                         Civil Division at No: 2013-2377


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 17, 2016

        Rosanna M. Johnson (“Johnson” or “Appellant”) appeals pro se from

the July 28, 2015 order entered in the Franklin County Branch of the Court

of Common Pleas of the 39th Judicial District, granting summary judgment in

favor of PB Services, Inc., Real Estate (“PB Services” or “Appellee”).

Following review, we affirm.

        In its Opinion and Order entered on July 28, 2015, the trial court set

forth the procedural and factual background of this case in detail. Briefly,

Johnson entered into a one-year lease (June 1, 2012 through May 31, 2013)

for an apartment managed by PB Services. The monthly rent was $840.00,
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*
    Former Justice specially assigned to the Superior Court.
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reduced to $820.00 if paid before the first of the month. 1            Johnson was

responsible for payment of utilities and was required to have the utility

account put in her name. The lease required an $820.00 security deposit “to

be refunded upon vacating, returning of keys to the office and written

termination of the contract according to all other terms herein agreed. The

entire security deposit will be held to cover any possible damage to the

property or any unpaid rent or utilities.”       Trial Court Opinion and Order,

7/28/15, at 9 (quoting Appellant’s Complaint, Exhibit 1, ¶ 3) (brackets

omitted).

       On November 17, 2012, Johnson notified PB Services of her intent to

vacate the premises on November 30, 2012.           PB Services did not provide

written agreement to Johnson’s November 17, 2012 notice to vacate.

Johnson removed her name from the utility account upon vacation of the

premises and the property owner’s name was placed on the account.

       Johnson made monthly rental payments for December 2012 and

January 2013 and in January 2013 reimbursed PB Services for a utility

payment made by PB Services. In February 2013, Johnson made a payment

of $3,280.00 for the remaining four months of her lease but disputed liability

for an additional utility bill and returned the bill to PB Services.

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1
 Because all payments were timely made to receive the discounted rate, we
shall refer to the amount of the monthly rent, as well as the amount of the
security deposit, as $820.00.



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       On May 1, 2013, with one month left on the lease term, PB Services

entered into a lease with a new tenant. By that time, PB Services had paid

utility bills for the premises totaling $831.85, an amount exceeding

Johnson’s security deposit by $11.85.2           Because Johnson’s lease was

terminated when PB Services entered into the new lease, PB Services sent

Johnson two checks—dated May 20 and 21, 2013—totaling $820.00 ($11.85

and $808.15), representing repayment of the May 2013 rent she prepaid in

February. PB Services did not refund any part of Johnson’s security deposit,

having exhausted the deposit through payment of utilities.

       Johnson filed a civil complaint seeking damages in the amount of

$1,640.00.     A magisterial district justice dismissed her complaint without

prejudice. Johnson appealed. In her Complaint filed with the common pleas

court, Johnson identified three “causes of action” characterized as (1) Return

of Security Deposit, (2) Appeal MDJ Decision, and (3) Advance Rent

Payment.      Johnson sought damages for $910.00 paid from her security

deposit for utilities, $1,640.00 representing double her security deposit, and

$820.00 in prepaid rent. Appellant’s Complaint, 7/2/13, at 7-8.



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2
  The ledger reflects that PB Services made one utility payment for the
leased premises on May 8, 2013, after PB Services entered into a new lease
for the premises. The payment made on May 8 represented charges for
services through April 23, 2013. See PB Services Answer to Johnson’s
Complaint, 4/16/14, Exhibit B-4.



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      On August 22, 2014, a panel of arbitrators entered an award in favor

of PB Services. Johnson appealed and the case proceeded with the parties

conducting additional discovery.   PB Services filed a motion for summary

judgment to which Johnson responded. Following argument on the motion

on July 13, 2015, the trial court granted PB Services’ motion and dismissed

Johnson’s complaint with prejudice. This timely appeal followed.

      Johnson filed a statement of errors complained of on appeal that the

trial court described as raising “eleven issues including one issue with

fourteen subparts.” Trial Court Rule 1925(a) Opinion, 9/17/15, at 1. The

trial court determined the 1925(b) statement was “redundant, frivolous, and

not appropriately concise” and found that Johnson had waived the issues.

Id. To the extent this Court might conclude the issues were not waived, the

trial court advised that its reasons for granting summary judgment could be

found in its July 28, 2015 Opinion and Order. Id.

      In her brief filed with this Court, Johnson identifies two issues for our

consideration:

      1. Did the [c]ourt err by granting [Appellee’s] summary
         judgment [motion] when genuine issues of material fact
         remained in dispute which should have been submitted to a
         jury at trial?

      2. Did the [c]ourt abuse its discretion by granting [Appellee’s]
         Motion for Summary Judg[]ment when the documentary
         evidence submitted therewith did not support the Motion[?]

Appellant’s Brief at 4.




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      While we cannot disagree with the trial court’s characterization of

Johnson’s 1925(b) statement as somewhat “redundant” or “not appropriately

concise,” we are not willing to dismiss it as frivolous.      Moreover, while

Johnson as a pro se litigant is not entitled to disregard our procedural rules,

Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005), we can appreciate that Johnson “made a

good faith effort to abide by” them when she presented all the matters she

believed should be preserved for appeal.     Appellant’s Response Brief at 6.

Because we believe the issues as framed in Johnson’s brief embody the

matters presented in her Rule 1925(b) statement, we shall consider them.

      We begin by setting forth our standard of review.

      “[S]ummary judgment is appropriate only in those cases where
      the record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment
      as a matter of law.” Atcovitz v. Gulph Mills Tennis Club,
      Inc., 812 A.2d 1218, 1221 (Pa. 2002); Pa.R.C.P. No. 1035.2(1).
      When considering a motion for summary judgment, the trial
      court must take all facts of record and reasonable inferences
      therefrom in a light most favorable to the non-moving party.
      Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa
      2007). In so doing, the trial court must resolve all doubts as to
      the existence of a genuine issue of material fact against the
      moving party, and, thus, may only grant summary judgment
      “where the right to such judgment is clear and free from all
      doubt.” Id.

Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super. 2015) (en banc) (citation

omitted). An order granting summary judgment will be reversed if the trial

court committed an error of law or abused its discretion. Id.




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     In her first issue, Johnson contends the trial court erred by granting

summary judgment in light of genuine issues of material fact that remain in

dispute.     Based on our review of the facts of record and reasonable

inferences therefrom—viewed in the light most favorable to Johnson, we

conclude there are no genuine issues of material fact in dispute.   Johnson

entered into a one-year lease and made monthly payments of $820.00 both

while occupying the premises and after she vacated it. Because she prepaid

the May 2013 rent and PB Services entered into a lease with a new tenant

beginning May 1, 2013, BP Services appropriately refunded her prepaid May

2013 rent.    Despite the fact the checks were drawn on a security deposit

account and a general account, the checks issued to Johnson on May 20 and

21, totaling $820.00, clearly represented a refund of that prepaid rent. See

PB Services Supplemental Answer to Johnson’s Request for Production of

Document and Exhibits, 11/7/14.

     Johnson’s lease also required a security deposit in the amount of

$820.00, to be refunded upon termination of the lease. However, the lease

specified that the deposit would be held to cover any damage to the

property or any unpaid rent or utilities.    Residential Lease Agreement,

6/1/12, at 1, ¶ 3. Although Johnson believes her obligation to pay utilities

ended when she vacated the premises and her name was removed from the

account, that is not the case. For the duration of her lease term, she was

obligated to pay for the utilities and was obligated to have her name on the


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J-A02023-16


utility account. Id. at 4-5, ¶ 14. Because Johnson improperly removed her

name from the account when she vacated the premises at the end of

November, PB Services made the utility payments that were Johnson’s

obligation under the lease.   Those payments totaled $831.85, an amount

exceeding Johnson’s security deposit by $11.85.

      Once PB Services leased the premises effective May 1, 2013, the lease

terminated. At that point, PB Services sent Johnson checks totaling $820.00

as reimbursement of her prepaid May rent. Johnson was not entitled to a

refund of her security deposit because those funds were exhausted by

payment of utilities for the apartment.

      Johnson suggests that the checks sent to her represented a refund of

her security deposit and that she is owed her prepaid May rent.         Despite

being drawn on the wrong PB Services account, it is apparent that PB

Services paid Johnson everything to which she was entitled. Moreover, in

the letter accompanying the checks, PB Services explained that the checks

represented a refund of her prepaid rent and that her security deposit was

used to pay utility bills, with PB Services covering the $11.85 excess of

utility bills over the amount of the security deposit. See Johnson’s Answer

to PB Services Preliminary Objections, 9/18/13, Exhibit “F.”        Even if the

funds were paid out the wrong account, Johnson received everything to

which she was entitled.       There is no genuine issue of material fact

concerning any claims for relief asserted in Johnson’s Complaint.


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         Johnson also argues that she terminated the lease on February 13,

2013 when she prepaid the rent for the remainder of the lease term.

However, the lease clearly reflects that the term of the lease was June 1,

2012 through May 31, 2013.         Id. at 1, ¶ 1.   There is no provision in the

lease indicating otherwise.     The lease would have terminated on May 31,

2013 but for PB Services’ ability to find a new tenant as of May 1, 2013,

saving Johnson $820.00.

         There are no genuine issues of material fact to preclude entry of

summary judgment and PB Services is entitled to judgment as a matter of

law.     Finding no error in the trial court’s determination in this regard,

Johnson’s first issue fails.

         In her second issue, Johnson complains that documentary evidence did

not support PB Services’ summary judgment motion.             Again, Johnson is

relying on the fact that a check was mistakenly written from a security

deposit account rather than an escrow account. The evidence might reflect

sloppy accounting on the part of PB Services. Regardless, PB Services paid

Johnson everything to which she was entitled. The evidence supported the

grant of summary judgment in PB Services’ favor. Johnson’s second issue

fails.

         The trial court neither committed error of law nor abused its discretion

by granting summary judgment in favor of PB Services. Therefore, we shall

not disturb its ruling.


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       Order affirmed.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2016




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3
  In its brief, PB Services asks this Court to award counsel fees pursuant to
Pa.R.A.P. 2744, which authorizes an award of, inter alia, counsel fees if we
“determine[] that an appeal is frivolous . . . or that the conduct of the
participant against whom costs are to be imposed is dilatory, obdurate or
vexatious.” We can appreciate PB Services’ frustration at defending this
action before the magistrate district justice, an arbitration panel, the trial
court and now this Court. We might find Johnson’s actions ill-advised and an
improvident use of her own time and resources but we also recognize an
appeal is not frivolous simply because it lacks merit. See Griffith v.
Kirsch, 886 A.2d 249, 255 (Pa. Super. 2005) (citation omitted). Therefore,
we decline to impose counsel fees.




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