J-A07023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CINDY LOU FRAZIER                              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellant

                     v.

JOLENE SOLOMON

                           Appellee                 No. 593 WDA 2015


                    Appeal from the Order March 10, 2015
               In the Court of Common Pleas of Clarion County
                       Civil Division at No(s): 985-2013


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 25, 2016

      Appellant, Cindy Lou Frazier, appeals from the March 10, 2015 order,

directing that certain property be returned to Appellee, Jolene Solomon, and

her former boyfriend, Dale Wentling. After careful review, we affirm.

      The trial court summarized the relevant factual and procedural history

of this case as follows.

                  [Appellant] as landlord and [Appellee] as
            tenant entered into a residential lease agreement
            dated January 1, 2013, under which [Appellee]
            rented the residence at 1395 Tylersburg Rd., Leeper,
            PA for a period of one year to commence January 1,
            2013, and ending on December 31, 2013.

                   [Appellee] was incarcerated in the county jail
            for 14 days in July 2013 on a matter unrelated to
            this case. While [Appellee] was in jail[, Appellant]
            initiated a landlord-tenant proceeding against
            [Appellee] with a Magisterial District Judge. While in
            jail[, Appellee] was served with a notice of the
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          hearing scheduled before the Magisterial District
          Judge on July 31, but was served with no other
          papers with regard to this matter.

                Sometime prior to July 22[, Appellant] changed
          the locks on the residence and the garage with the
          furnishings and other personal property of [Appellee]
          and her boyfriend Dale Wentling locked inside.

                 At the [M]agisterial District Judge hearing on
          July 31, 2013, [Appellant] received judgment for
          rent arrears of $4500; damage to [the] property of
          $2538.78; costs of $156.50 and service fees of
          $60.05 for a total of $7,255.33. On August 23,
          2013, [Appellee] appealed that judgment to the [trial
          court]. On September 10, 2013, [Appellant] filed
          the complaint in this matter. On September 19,
          2013, [Appellee] filed an answer and counterclaim
          for the personal property being held by [Appellant].
          The matter was heard by a board of arbitrators on
          March 27, 2014, and the arbitrators awarded
          [Appellant] $4,264.21 including costs. [Appellee]
          did not appeal the judgment. On November 19,
          2014[, Appellant] filed a motion for aid in execution,
          asking the [trial] court to award ownership of the
          1979 Chevrolet Monte Carlo which was part of the
          property taken by [Appellant] when the locks were
          changed on the rented property. [Appellant] further
          requests the [trial] court to award title to a boat
          licensed by the Pennsylvania Fish and Boat
          Commission.       [Appellant]’s motion for aid in
          execution was scheduled for [a] hearing before th[e
          trial c]ourt on December 30, 2014. At the time of
          that hearing [A]ttorney [Chad] Rosen[, Esquire
          (Attorney Rosen)] appeared on behalf of Dale
          Wentling[,] who was [Appellee]’s boyfriend at the
          time of the rental of the property and claimed that
          Mr. Wentling owned the Chevrolet Monte Carlo as
          well as other personal property including various
          tools etc. which were still in [Appellant]’s possession
          and that [Appellant] refused to permit Mr. Wentling
          to obtain possession of the same. At that time there
          was no formal motion for Mr. Wentling to intervene
          in the proceeding and the [trial] court encouraged

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              the parties to discuss the matter and attempt to
              resolve it amicably. The parties agreed to a motion
              by [Appellee] to continue the matter to permit
              further discussion. On January 26, 2015, [Appellant]
              filed a motion to reschedule the hearing on the
              motion for aid in execution, and on March 10, 2015,
              the hearing was held.        Mr. Wentling, through
              counsel, asked to intervene which was not opposed.
              The [trial c]ourt found [Appellant] was illegally
              holding property of [Appellee] and Mr. Wentling and
              ordered [Appellant] to return the property to them.

Trial Court Opinion, 7/1/15, at 1-3.1          On April 9, 2015, Appellant filed a

timely notice of appeal.2

       On appeal, Appellant raises one issue for our review.

              I.     May a landlord and tenant lawfully agree to
                     include the following language in their contract
                     lease agreement:

                     “13. The tenant hereby gives Landlord, in
                     addition to the lien given by law, a lien upon all
                     property situated upon said premises, including
                     all furniture and household furnishings,
                     whether said property is exempt from
                     execution or not, for the rent agreed to be paid
                     hereunder, for any damages caused by Tenant,
                     and for court costs and attorney’s fees incurred
                     under the terms hereof[?]”[]

Appellant’s Brief at 2.




____________________________________________
1
 We note the trial court opinion does not contain pagination. Therefore, we
have assigned each page a corresponding page number for ease of review.
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A07023-16


      Instantly, Appellant argues the trial court erroneously concluded

Appellee’s and Wentling’s due process rights were violated without first

considering whether paragraph 13 of the lease applied.                  Id. at 10.

Appellant’s sole argument is that the trial court “fail[ed] to analyze the

issues presented under paragraph 13 of the lease contract.” Id. Appellant

asks for this Court to vacate and remand with instructions for the trial court

to consider whether paragraph 13 precludes its due process conclusion. Id.

      At the outset, we observe that a claim as to whether a person’s

constitutional   rights   were   violated   and   questions   pertaining   to   the

interpretation of a contract present questions of law, for which our standard

of review is de novo, and our scope of review is plenary.                Wirth v.

Commonwealth, 95 A.3d 822, 835 (Pa. 2014); Clarke v. MMG Ins. Co.,

100 A.3d 271, 275 (Pa. Super. 2014), appeal denied, 117 A.3d 294 (Pa.

2015).

      At the March 10, 2015 hearing, Appellant attempted to argue that

paragraph 13 of the lease applied.          The exchange that occurred was as

follows.

            [Appellant’s counsel]: … The order of possession
            gives [Appellant] the right to take property on the
            land. Second, paragraph 13 of the lease [Appellee]
            said she gives a lien --

            [Wentling’s counsel]: I’m going to object.           That
            was never placed into evidence, the lease.




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              [Appellant’s counsel]: The lease is of [sic] the file.
              It’s part of it, and it’s actually attached to my
              pleading as well, I believe.

              [Wentling’s counsel]:       There     was       no   evidence
              concerning --

              [Appellant’s counsel]:      It’s in the file.

              [Wentling’s counsel]: There’s no evidence in the
              record, that [paragraph] 13 wasn’t discussed at all
              today, Your Honor.

              The Court: All right. That’s sustained.

N.T., 3/10/15, at 56-57.

       The record reveals the trial court did not consider paragraph 13 of the

lease because it sustained Wentling’s objection that the lease was not placed

into evidence.3     See id.     Appellant’s brief is devoid of any argument that

challenges the trial court’s ruling on Wentling’s objection.                  Therefore,

Appellant has waived this issue. See generally Pa.R.A.P. 2119(a); In re

Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure
____________________________________________
3
  We do note the trial court addressed the issue of distraint generally at the
March 10, 2015 hearing, leaving aside whether paragraph 13 of the lease in
this case required a different result. See generally N.T., 3/10/15, at 60-
61. The trial court noted that we had previously held that the distraint
statute, 68 P.S. § 250.302, was unconstitutional under the Due Process
Clause of the Fourteenth Amendment. Id. at 60. As this Court explained in
Allegheny Clarklift, Inc. v. Woodline Indus. of Pa., Inc., 516 A.2d 606
(Pa. Super. 1986), Section 250.302 deprived a tenant of notice and an
opportunity to be heard, which strikes at the very core of the procedural
component of the Due Process Clause. Id. at 608. As a result, the trial
court concluded that Section 250.302 could not be used to support
Appellant’s seizure of Appellee and Wentling’s property in this case, as it
would violate their due process rights. N.T., 3/10/15, at 61.



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to cite relevant legal authority constitutes waiver of the claim on appeal[]”)

(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013).             Instead,

Appellant only argues the merits of the issue, that is, whether paragraph 13

affects the trial court’s conclusions in its order.   Appellant’s Brief at 8-10.

Since Appellant has waived all argument regarding Wentling’s objection, and

we may not raise the issue sua sponte, we are precluded from reaching the

merits of Appellant’s claim. See, e.g., Estate of Haiko v. McGinley, 799

A.2d 155, 161 (Pa. Super. 2002) (stating, “[i]t is not this Court’s function or

duty to become an advocate for the appellant[]”).

      Based on the foregoing, we conclude Appellant’s issue raised on appeal

does not warrant relief, as Appellant has waived any challenge to the trial

court’s reason for not considering the merits of the same. Accordingly, the

trial court’s March 10, 2015 order is affirmed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2016




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