J-S82031-18

                              2019 PA Super 89

METRO REAL ESTATE INVESTMENT,           :  IN THE SUPERIOR COURT OF
LLC                                     :        PENNSYLVANIA
                                        :
                  Appellee              :
                                        :
            v.                          :
                                        :
                                        :
DEANDRE BEMBRY,                         :
                                        :
                  Appellant             : No. 1092 EDA 2018

              Appeal from the Judgment Entered March 2, 2018
            in the Court of Common Pleas of Philadelphia County
      Civil Division at No(s): July Term, 2016 Civil Action No. 02370

BEFORE:   LAZARUS, J., OLSON, J. and STRASSBURGER, J.*

OPINION BY STRASSBURGER, J.:                       FILED MARCH 25, 2019

     Deandre Bembry appeals from the judgment entered on March 2,

2018, which awarded $27,000 in damages to Metro Real Estate Investment,

LLC (Metro) and against Bembry after a non-jury trial.     Upon review, we

vacate the judgment.

     The trial court offers the following background.

           On May 11, 2015, [] Michael Siaway, [] Bembry[,] and Jai
     Williams [(Lessees)] entered into a one-year written residential
     lease agreement with [Metro] for a property located at 5432
     Euclid Street (“the Property”). The lease agreement stated that
     it would automatically renew for one year on May 31, 2016
     unless sixty (60) days written notice was given. The lease
     agreement required a $3,000 security deposit and monthly rent
     of $1,500. [Lessees] were responsible to pay for gas, electricity,
     water, and any fines related to snow or trash removal.

           In March 2016, [Lessees] stopped paying the water bill
     and rent. On May 4, 2016, [Metro] issued a letter detailing
     [Lessees’] breach of the lease agreement. On May 17, 2016,
     [Metro] filed a [L]andlord[-T]enant complaint in Philadelphia

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Municipal Court (Docket Number LT-16-05-17-4474) seeking
     unpaid rent, unpaid water and sewage bills, reimbursement for
     [the] Property related citations, and attorney’s fees [(Municipal
     Court Case)]. [Lessees] vacated the [P]roperty in May 2016 and
     did not return keys to [Metro].

           A Landlord-Tenant hearing was scheduled for June 8, 2016
     in Municipal Court. [Lessees] failed to appear and a default
     judgment in favor of [Metro] in the amount of $7,371.89 plus
     additional court costs was entered.     [Metro] was granted
     possession on the basis of non-payment of rent and termination
     of the lease term.

           Shortly after the June 8, 2016 Landlord-Tenant hearing,
     [Metro] received notice that [Lessees] vacated the [P]roperty.
     Upon entry, [Metro] found significant damage to the Property.
     [Metro] filed [its] complaint in the Philadelphia Court of Common
     Pleas on July 22, 2016 alleging one count of breach of contract
     and one count of negligence [(Common Pleas Case)].

           On July 7, 2016, [] Bembry petitioned the Municipal Court
     to open the default judgment [in the Municipal Court Case]. On
     August 15, 2016, [] Bembry’s petition was denied.           On
     September 13, 2016, [] Bembry appealed to the Court of
     Common Pleas and, on December 1, 2016, the [Municipal Court
     Case] was remanded to Municipal Court for a hearing on the
     merits.

           On January 5, 2017, a Municipal Court hearing was held
     before the Honorable Bradley Moss [in the Municipal Court
     Case].    [] Bembry participated via telephone.       Judge Moss
     vacated the June 8, 2016 default judgment and rendered a
     judgment of $4,287.78 in favor of [Metro] consisting of: $2,250
     in unpaid rent for half of May and all of June 2016; attorney fees
     for $1,000; an unpaid water bill of $659; $100 for Property-
     related citations and $128 in court costs. Judge Moss did not
     award additional rent because [Metro] was able to take
     possession of the Property in June 2016. The Municipal Court
     [Case] judgment was not appealed.

          A non-jury trial was held in the Court of Common Pleas on
     August 7, 2017[ in the Common Pleas Case.] [Lessee] Michael
     Siaway was dismissed due to inadequate service.       At trial,
     [Metro] alleged that the damage caused by [Lessees] and the

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       need to make repairs resulted in [Metro] suffering “significant
       economic losses, including but not limited to: loss of rent and
       repair cost.”

              On August [9], 2017, the [trial court] submitted findings of
       fact and conclusions of law stating that [Lessees] did not provide
       written notice of their intent to terminate the lease within 60
       days of the end of the lease, i.e., May 31, 2016, as required.
       The [trial court] awarded [Metro] $30,000, consisting of $12,500
       for property damage, $15,000 for lost rent, $2,500 for attorney
       fees, minus $3,000 in security deposit paid by [Lessees] for a
       total amount of $27,000.

Trial Court Opinion, 6/29/2018, at 1-3 (unnecessary capitalization and

parentheticals omitted, numbers modified).

       Bembry timely filed a post-trial motion.     An argument was held on

November 6, 2017, and on November 9, 2017, the trial court denied that

motion. Bembry timely filed a notice of appeal in the Common Pleas Case.1

Both Bembry and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Bembry sets forth two issues for our review.

    1. Did the [trial] court err by awarding judgment to [Metro] for
       unpaid rent where the same claim litigated by the same parties
       was denied in [the Municipal Court Case]?

    2. Did the [trial] court abuse its discretion when it allowed Metro to
       introduce [53] photographs at trial where Metro failed to disclose
       the photographs despite a discovery request and did not disclose
       them until mid-trial?



____________________________________________


1 Bembry did not enter judgment prior to filing an appeal. This Court
remanded the case for entry of judgment, and on March 2, 2018, judgment
was entered in favor of Metro and against Bembry.



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Bembry’s Brief at 3 (suggested answers omitted).2

        We begin with our standard of review.

               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 a 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 the facts of the case.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664–65

(Pa.     Super.   2014)     (quoting     Wyatt,   Inc.   v.   Citizens   Bank   of

Pennsylvania, 976 A.2d 557, 564 (Pa. Super. 2009) (internal citations

omitted)).

        Bembry first claims that the trial court erred as a matter of law in

concluding that Metro’s claim for lost rent was not barred by the doctrines of

res judicata and collateral estoppel. Bembry’s Brief at 7-10. Bembry argues

that Metro had a claim for unpaid rent in the Municipal Court Case, which

was litigated, decided, and not appealed. Thus, Bembry claims that Metro


____________________________________________


2   Metro has not filed a brief on appeal.



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could not get “a second bite of the apple with respect to its unpaid rent

claim” in the Common Pleas Case. Id. at 10.

       Pennsylvania law provides that the Philadelphia Municipal Court and

Court of Common Pleas retain concurrent jurisdiction in landlord-tenant

matters. See 42 Pa.C.S. § 1123(b). In other words, a party in a landlord-

tenant action may institute a matter in either the Philadelphia Municipal

Court or the Court of Common Pleas. Here, Metro instituted actions in both

courts,3 which has created the problem this Court is now called upon to

resolve.

              Under the doctrine of res judicata, or claim preclusion, a
       final judgment on the merits by a court of competent jurisdiction
       will bar any future action on the same cause of action between
       the parties and their privies. The doctrine therefore forbids
       further litigation on all matters which might have been raised
       and decided in the former suit, as well as those which were
       actually raised therein.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa.

Super. 2016) (internal citations and quotation marks omitted; emphasis

added). “The doctrine has application where the following are present: (1)

identity of the thing sued upon or for; (2) identity of the cause of action; (3)

identity of persons or parties to the actions; and (4) identity of the quality or
____________________________________________


3 As noted supra, on May 22, 2016, Metro filed a landlord-tenant claim in the
Philadelphia Municipal Court, and judgment was entered against Bembry on
June 8, 2016. On July 7, 2016, Bembry timely filed a petition to open that
judgment. Nevertheless, two weeks later, Metro filed pro se a new action on
the same lease in the Court of Common Pleas.




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capacity of the parties suing or sued.” Rearick v. Elderton State Bank, 97

A.3d 374, 380 (Pa. Super. 2014).

       Instantly, the trial court concluded that the damages sought in the

Common Pleas Case “were not identical or essential to the judgment

rendered” in the Municipal Court Case.4 Trial Court Opinion, 6/29/2018, at 7.

Specifically, the trial court pointed out that the Municipal Court Case “was

limited to unpaid bills, rent for which [Lessees] were contractually

responsible, and citations.” Id. The trial court concluded the damages in the

Common Pleas Case were different because they were sought after “[Metro]

discovered the damage to the Property and sought compensation for repair

and lost rent” resulting from that damage. Id. at 6.

       This conclusion was erroneous as a matter of law.        Even if the trial

court were correct that the damages sought were different, there is no
____________________________________________


4 The trial court also suggests that Bembry waived this issue by failing to
produce the January 5, 2017 Municipal Court Case hearing transcript at trial.
Trial Court Opinion, 6/29/2018, at 6. There is no question that Bembry
produced the transcript itself for the first time in a motion for post-trial
relief. We agree with the trial court that we cannot consider this transcript
because evidence cannot be presented for the first time in a post-trial
motion. See Claudio v. Dean Machine Co., 831 A.2d 140 (Pa. 2003)
(holding a party cannot use a post-trial motion to introduce evidence it
should have but failed to introduce at trial). However, for the reasons
discussed infra, this defect is not fatal to Bembry’s claim. Furthermore,
Bembry properly raised the issue of res judicata in the answer and new
matter to the complaint, and this matter was discussed and argued
extensively at the non-jury trial. See N.T., 8/7/2017, at 5-13; 121-31.
Additionally, we would be remiss not to point out that at the argument on
post-trial relief, the trial court stated that it “took the opportunity to look at
the [Municipal Court Case] transcript.” N.T., 11/6/2017, at 28.



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question that the claims could have been raised and those damages sought

in the Municipal Court Case.5           The Municipal Court Case was even still

pending at the time Metro instituted the Common Pleas Case.6 Metro had

many options available to it to present properly its claims, including the

amending of its complaint in the Municipal Court Case or the filing of the

Common Pleas Case in the Municipal Court then consolidating the two.

Metro’s decision to choose to pursue a wholly separate cause of action in a

different court is exactly the type of harm that the doctrine of res judicata is

designed to prevent. See Clark v. Troutman, 502 A.2d 137, 139 (Pa.

1985) (“The purposes of the rule are the protection of litigants from the dual

burden of relitigating an issue with the same party or his privy and the

promotion of judicial economy through prevention of needless litigation.”);

Pollock v. National Football League, 171 A.3d 773, 782 (Pa. Super.

2017) (noting that the policy behind res judicata is “the idea that a party

should not get a second bite at the apple when he or she has had a full and

fair opportunity the first time”).        Based on the foregoing, we agree with

Bembry that Metro’s second action was barred by res judicata.
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5 In fact, the Philadelphia Municipal Court is specifically permitted to enter
judgments in excess of $5,000 in landlord-tenant cases. See 42 Pa.C.S.
§ 1123(a)(3).

6 As noted supra, Metro filed the Common Pleas Case after Bembry
petitioned to open the default judgment in the Municipal Court Case, but
before that petition was initially denied in the Municipal Court.




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      Judgment     vacated.   Order    denying   post-trial   relief   reversed.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/19




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