J-A14033-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARILOU WRIGHT,                         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :
                                        :
KEVIN MULLEN,                           :
                                        :
                       Appellee         :    No. 1430 MDA 2014

            Appeal from the Judgment Entered October 2, 2014,
              in the Court of Common Pleas of Centre County,
                     Civil Division at No(s): 2013-4059

BEFORE: BENDER, P.J.E., JENKINS and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                       FILED JULY 17, 2015

      Marilou Wright (Wright) appeals from the judgment entered on

October 2, 2014, against her and in favor of Kevin Mullen (Mullen). 1     We

affirm.

      In May of 2010, Wright entered into a residential lease with Mullen.

The tenancy was uneventful until June 25, 2013, when Mullen discovered

that Wright’s pets had caused substantial damage to the floors of the rental

property.   Subsequent to this discovery, and despite multiple attempts to

remedy the damage, the relationship between the parties deteriorated.

1
  We note that Wright purported to appeal from the order denying her post-
trial motion, which does not constitute an appealable order. Fanning v.
Davne, 795 A.2d 388, 391 (Pa. Super. 2002) (providing appeal to Superior
Court can only lie from judgments entered subsequent to trial court’s
disposition of any post-verdict motions, not from the order denying post-trial
motions). Accordingly, at the direction of this Court, the prothonotary
entered judgment in this matter on October 2, 2014. We have corrected the
caption accordingly.


* Retired Senior Judge assigned to the Superior Court.
J-A14033-15


Ultimately, Wright moved out of the rental property on August 31, 2013,

nine months prior to the expiration of the lease. Mullen was able to repair

and re-lease the property on January 1, 2014, but demanded compensation

from Wright, as well as payment of rent, under the terms of the lease,

through May 31, 2014.

      On October 17, 2013, Wright filed a declaratory judgment action

asking   the   court   to   declare,   inter   alia,   “the   respective   rights   and

responsibilities of the parties” under the lease.             Action for Declaratory

Judgment, 10/17/2013, at 8. Mullen filed an answer and new matter with

counterclaim on February 4, 2014.

      On May 29, 2014, after a three day bench trial, the trial court decided

in favor of Mullen and awarded a net of $11,974.11 in damages. The trial

court denied Wright’s post-trial motion.       This appeal followed. Both Wright

and the trial court complied with the requirements of Pa.R.A.P. 1925.

Wright raises the following four issues for our review.

      A. Did the [t]rial [c]ourt err in entering judgment in favor of
      [Mullen] and against [Wright] for rent, late fees and utilities by
      ignoring substantial evidence presented by [Wright]: (1) that
      [Mullen] breached the covenant of quiet enjoyment owed to
      [Wright]; (2) that [Wright] surrendered the premises on August
      31, 2013 and [Mullen] accepted said surrender by removing the
      keys from the premises that day, canceling the fuel oil to the
      premises, and listing the property for lease on Craig’s List, or
      alternatively that [Mullen] repudiated the lease; and (3) that
      [Mullen] breached the lease and violated The Landlord and
      Tenant Act of 1951 by charging [Wright] an illegal security
      deposit under duress?




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J-A14033-15


     B. Did the [t]rial [c]ourt err in entering judgment in favor of
     [Mullen] and against [Wright] for damages to the leased
     premises by ignoring substantial evidence establishing that the
     lease which was drafted by [Mullen] did not include a
     default/remedies provision authorizing [Mullen] to claim the
     damages which said court awarded to [Mullen] in its verdict?

     C. Did the [t]rial [c]ourt err in entering as part of its gross
     damage award against [Wright] (before credits) the sum of
     $12,446.83, representing one-half of the Mammoth Restoration
     estimate given substantial evidence which established that: (1)
     [Mullen] has never paid Mammoth any money for any restoration
     work; (2) the Mammoth estimate was approximately three times
     as high as the Home Depot estimate that [Mullen] had originally
     asked [Wright] to pay; and (3) [Mullen] performed flooring
     repairs prior to re-leasing the premises on January 15, 2014
     which were similar to the flooring repairs commissioned by
     [Wright] in August of 2013 for which [Wright] only paid Celestino
     Remodeling the sum of $905.00?

     D. Did the [t]rial [c]ourt err by failing to award [Wright] any
     damages other than a credit for the two security deposits in light
     of substantial evidence presented by [Wright] establishing that:
     (1) [Mullen] charged [Wright] an illegal security deposit of
     $1,500.00, (2) [Mullen] did not appropriately sequester the
     original security deposit as required by The Landlord and Tenant
     Act of 1951, and (3) [Mullen] did not properly account for either
     security deposit or related interest within thirty days of
     surrender and acceptance as required by said Act?

Wright’s Brief at 3-4 (answers omitted).

     Our standard of review in a non-jury trial is well established:

     We must determine whether the findings of the trial court are
     supported by competent evidence and whether the trial judge
     committed error in the application of law. Additionally, findings
     of the trial judge in a non-jury case must be given the same
     weight and effect on appeal as a verdict of a jury and will not be
     disturbed absent error of law or abuse of discretion.

Davis ex rel. Davis v. Government Employees Insurance Company,

775 A.2d 871, 873 (Pa. Super. 2001) (quotations omitted).


                                    -3-
J-A14033-15


      Additionally, we are mindful that “leases are in the nature of contracts

and are thus controlled by principles of contract law, including the well

settled rules of interpretation and construction.” Cusamano v. Anthony M.

DiLucia, Inc., 421 A.2d 1120, 1122 (Pa. Super. 1980). “Interpretation of a

contract, in this case a lease, poses a question of law.” Charles D. Stein

Revocable Trust v. General Felt Industries, Inc., 749 A.2d 978, 980

(Pa. Super. 2000). “Our standard of review over questions of law is de novo

and to the extent necessary, the scope of our review is plenary as this court

may review the entire record in making its decision.” Kripp v. Kripp, 849

A.2d 1159, 1164 n. 5 (Pa. 2004).

      Following our review of the certified record, the parties’ briefs, and the

relevant law, we conclude that the opinion of the Honorable Bradley P.

Lunsford states findings of fact that are supported by the record, evidences

no abuse of discretion, and thoroughly and correctly addresses and disposes

of Wright’s issues and supporting arguments. Accordingly, we adopt the trial

court’s opinion, filed on October 31, 2014, as our own, and affirm the

disposition of Wright’s issues on the basis of that opinion. The parties shall

attach a copy of the trial court’s October 31, 2014 opinion in the event of

further proceedings.

      Judgment affirmed.




                                     -4-
J-A14033-15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




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                                                                                                                      tlhlJIJOl'IN   C<;QPW.)40140,q




                   IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                                          CIVIL DIVISION

                        MARILOU WRIGHT
                                 Plaintiff

                                vs.                                               No. 2013-4059

                        KEVIN MULLEN
                                  Defendant

                Attorney for Plaintiff:                                    David D. Engle, Esquire.
                Attorney for Defendant:                                    Andrew Rehmeyer, Esquire.

                             OPINION REGARDING MATTERS COMPLAINED                        OF ON APPEAL

               LUNSFORD, J.

                       Presently before the court is Marilou Wright's (hereinafter "Plaintiff')      appeal of a

               decision rendered by this court on May 29, 2014.

                                       FACTUAL AND PROCEDURAL BACKGROUND

                       In May 2010 the Plaintiff entered into a residential lease with Kevin Mullen (hereinafter
                                                                                                          ' .

               "Defendant"). The lease contained the following relevant provisions:
                                                                                                                            I   ·,

                                                                   '                                     .
                              4. Tenant will tell owner of all concerns and damages immediately.·            ··                 ·1

                              Tenant will keep house in a safe and sanitary condition.          : .'. : :: ·.
                              5. Pets require owner's approval.                                  :. .' -.-~-
                              6. Tenant allows owner to enter property for including, but not    ~ · ·· :
                              limited to, repairs and showing property to future tenants. Owner ~~
                              will normally give tenant advance notice by email when possible.

                      The Defendant agreed to allow the Plaintiff to keep her pets on the property. Plaintiff's

              pets included four cats and one dog. The Plaintiff continuously lived on the property from June

              201 O through August 2013. The Plaintiff signed a lease to continue living on the property from

              June 1, 2013 through May 31, 2014. The Defendant did not enter or see the inside of the house

              rented to the Plaintiff again until June 25, 2013.




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                        On June 25, 2013, the Defendant was on the premises to fix an electrical outlet on the

                porch. Finding that the outlet was not working, the Defendant opened the door to enter the

                property and check the breaker. Upon opening the door, Defendant could see that the house was

                in disarray and he could smell animal excrement emanating from it. The Defendant could also

                see the floors were damaged. The Defendant then called the Plaintiff and requested that she meet

                him at the property to discuss the problem. The two parties had a discussion, which lasted

                approximately fifty minutes, on what needed to be done to get the house into habitable

                conditions. The Plaintiff agreed to clean the place. Sometime in July 2013, the Plaintiff paid the

               Defendant $1,500.00

                       The Plaintiff eventually hired a contractor to refinish the damaged floors. The Defendant

               found out about this a few days after work on the floors began. The Defendant then asked the

               contractor to stop work and vacate the property. The Defendant wanted to decide how to fix the

               damaged floors and get his own estimate. From June 25, 2013 through August 31, 2013, the two

               parties' relationship deteriorated. The Plaintiff notified the Defendant on her intentions to break

               the lease and move out. The Defendant advised that Plaintiff would still owe him rent for the

               remainder of the lease. After August 31, 2013 the Plaintiff was no longer living on the

               Defendant's property. After the Plaintiff had moved out, the Defendant obtained an estimate

               from Mammoth Restoration for new flooring and eliminating the pet odor in the apartment. The

              estimate was for a little over $25,000.00 and included new flooring as well as cleaning out the air

              ducts where it appeared the cats had urinated and vomited. The Defendant did not retain

              Mammoth Restoration.

                      The Defendant made enough repairs as necessary to the house to be able to rent it again.

              He found a new tenant and entered into a lease that began on January 1, 2014. He offered the


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                lease to the new tenant for $100.00 less than his lease with the Plaintiff because of the condition

                of the property. The Defendant still wishes to eliminate the odor in the house and have new

                floors installed by Mammoth Restoration.

                         After a three day bench trial this court decided in favor of the Defendant and awarded

                $11,974.11 in damages, accounted as follows: $1,250.00 for September rent; $90.00 for late fees;

               $81.38 for September utilities/electric; $50.00 for water, garbage, recycling, and sewage;

               $200.00 for cleaning; $12,446.83 for one half of all restoration repairs; $545.90 for duct

               cleaning; $60.00 for replacing window blinds; $2,750.00 credited for "security deposits." The

               Plaintiff appeals this decision.

                                                           DISCUSSION

                        Four issues are raised with regard to the Plaintiff's appeal.

                            1. The Plaintiff contends that this court erred in entering judgment in
                                favor of the Defendant for rent and late fees because substantial
                                evidence was ignored regarding the Plaintiff's right to quiet
                                enjoyment, surrender of the premises, and the Defendant charging
                                an illegal security deposit.
                           2. The Plaintiff contends that this court erred in entering judgment in
                                favor of the Defendant for rent and late fees because the lease
                               drafted by Defendant did not include a default provision
                               authorizing the Defendant to claim the damages.
                           3. The Plaintiff contends that this court erred in entering judgment in
                               favor of the Defendant for fees associated with Mammoth
                               Restoration.
                           4. The Plaintiff contends that this court erred by not awarding the
                               Plaintiff damages and only credited her security deposits towards
                               the Defendant's damages.


                  I.       Quiet Enjoyment/Surrender/Illegal Security Deposit

                       The Plaintiff contends that this court erred-in entering judgment in favor of the Defendant

              for rent and late fees because it ignored evidence presented by the Plaintiff, which included proof

              that the Defendant had breached the covenant of quiet enjoyment, proof that the Plaintiff

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                 surrendered the premises, and proof that the Defendant breached the lease and violated

                 Pennsylvania law.

                         First, the Plaintiff claims that there was substantial evidence presented that the Defendant

                 had breached the covenant of quiet enjoyment owed to the tenant However, there was no

                 evidence of this presented to the court. The Plaintiff claimed that the Defendant had entered her

                property on multiple occasions and had testified under oath about specific days in particular.

                However, the Defendant presented e-mail correspondences between the parti(~~ where he

                specifically asked when to meet with the Plaintiff at the property on those particular days, as well

                as other e-mails notifying the Plaintiff he would be on the property on other days. There is an

                implied covenant of quiet enjoyment in every lease of real property. Branish v. NHP. Property

                Mgmt. Inc., 694 A.2d 1106, 1107 (Pa. Super. 1997); Lichterfels v. Bridgeview Coal Co., 531

                A.2d 22, 25 (Pa. Super. 1987). However, implied covenants are only to be applied where there

                are no contractual terms in the lease that contradict them. See John B. Conomos, Inc. v. Sun Co.,

               Inc. (R&M), 831 A.2d 696, 706 (Pa. Super. 2003) (the court states that unequivocal contract

               terms hold a superior position to any terms implied by the courts); Jacobs v. CNG Transmission

               C01p., 772 A.2d 445 (Pa 2001).

                       The Plaintiff signed a lease with the Defendant reserving to the Defendant the right to

               enter the property for repairs where he wHI give advance notice when possible. Every instance

               presented to the court of the Defendant entering the property had to do with repairs.

               Additionally, because Plaintiffwas the primary cause for the damage to the apartment, she

               cannot claim constructive eviction by the Defendant's actions. See Versatile Metals. Inc. v.

               Union Corp., 693 F. Supp. 1563, 1569 (E.D. Pa. 1988) (applying Pennsylvania law). Because of

              the lack of evidence presented that the Defendant breached the Plaintiffs     right to quiet



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                enjoyment, the Plaintiffs agreement to a decreased right to quiet enjoyment, and the Plaintiff

                being the cause of the damage to the property, this court held that the Defendant did not breach

                the Plaintiff's right to quiet enjoyment.

                        Next, the Plaintiff claims that there was substantial evidence presented that the Plaintiff

                surrendered the premises and the Defendant accepted that surrender by removing the keys from

                the premises that day, canceling the fuel oil to the premises, and listing the property for lease on

                www.craigslist.com.   Whether a land lord accepts a tenant's surrender of a premise is based on a

                determination of the landlord's intent. Ona! v. BP Amoco Corp., 275 F. Supp. 2d 650 (E.D. Pa.

               2003),judgment    affirmed 134 Fed. Appx. 515 (Jd Cir. 2005) (applying Pennsylvania law). The

               burden is on the tenant to show by clear and convincing evidence that the landlord's actions

               constitute acceptance of surrender. Stonehedge Square Ltd. Partnership v. Movie Merchants,

               Inc., 685 A.2d 1019 (Pa. Super, 1996). This can be done by showing the landlord's actions were

               adverse to reoccupation of the property by the tenant and to a renewal of the relations created by

               the lease. Ona/ v. BP Amoco Corp., 275 F. Supp. 2d 650.

                       While the Plaintiff was willing to surrender the property, the Defendant was not willing

               to accept her surrender. The Defendant specifically told the Defendant through e-mail that he

               was not accepting her surrender and expected her to pay through the entire term of the lease,

              even if she vacated the premises. The Defendant's act of accepting the keys the Plaintiff left at

              the property is not clear and convincing evidence that the Defendant accepted the surrender,

              especially with his unequivocal statement to the Plaintiff that he was not accepting the surrender.

              The Defendant's actions are more akin to that of protecting of the property from third parties,

              than as a dominion of control contrary to the Plaintiffs interest in the :property. See Boesch v.




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                Ericsson, 9 Pa. D. & C. 4th 20, 1990 WL 323045 (C.P. 1990) (Landlord changing properties

                locks after the premise was burglarized not considered an acceptance of surrender).

                        Additionally, the Defendant's actions of canceling the fuel to the premises and listing the

                property on www.craigslist.com    were not adverse to the reoccupation of the property. The act of

                canceling the fuel was not an act adverse to reoccupation of the property because if the Plaintiff

                did decide to move back into the property the fuel could be turned back on. The Defendant had a

                duty to mitigate damages, and his cancelling of the fuel was of benefit to the Plaintiff because if

               he had not cancelled it she would have been Hable for its costs. Further, the advertising of the

               apartment on craigslist was not an acceptance of the Plaintiff's surrender. The advertisement was

               only online for a short amount of time. The Defendant took the posting down and waited a month

               to see if the Plaintiff would re-enter the premise. When he was satisfied she would not re-enter,

               he decided he should enter into a new lease to mitigate damages. It was October when the

               Defendant decided to do a quick fix of the floor and enter into a new lease as soon as possible. It

               is at this point that this court found that the Defendant accepted the Plaintiffs surrender of the

               property. Based on the Defendant's express statement that he did not accept the Plaintiff's

               surrender at that time and the Defendant not taking any actions until it was clear the Plaintiff was

              not reentering the premises in October, this court assessed .the Plaintiff the full cost of the

              September rent and utilities.

                      Finally, the Plaintiff alleges that there was substantial evidence presented that the

              Defendant breached the lease and violated the Pennsylvania Landlord and Tenant Act by

              charging the Plaintiff an illegal security deposit. A landlord cannot require a sum in excess of

              two months' rent to be deposited in escrow for the payment of damages during the first year of

              any lease and one month's rent in subsequent years. 68 P.S. § 250.51 l(a)-(c). Plaintiff paid one



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               month's rent in a security deposit at the beginning of the lease term in 2010. She paid no security

               deposit in 2011 or 2012. Both parties agreed that the Plaintiff gave the Defendant $1,500.00 in

               July, 2013. On the first day of the bench trial, Plaintiff stated that she was seeking to have her

               "security deposit returned plus the additional fifteen hundred dollars» which she claims she felt

               pressured to give Defendant. Tr. 3/27/14 at 14. This court did award Plaintiff credit for her

               security deposit and the additional $1,500.00. Although Plaintiff claims she was pressured to

               give Defendant the additional $1,500.00, she sent him an e-mail on July 25, 2013 indicating that

               she would be "happy" to give him "another month's deposit" to "evidence her commitment to

               clean up the property." Tr. 5/29/14 at 18¥ 19. This court notes that $1,500. 00 amounts to $250. 00

               more than one month's rent. Although Plaintiff may have felt some pressure to give the money to

               Defendant, in large part, that was because she had allowed the property to fall into a very

               unsanitary condition as evidenced by her acknowledgment in the same e-mail wherein she

               apologized-for allowing the "house to get in disarray." It was clear the $1,500.00 was provided

              because of the condition of the property: the mess which Defendant described as "boarding," the

              offensive pet odors, and the damage to the oak flooring, in an attempt to ensure good faith in

              moving forward to clean up the property and to avoid the Defendant initiating an eviction action.

              Because   this court awarded Plaintiff a credit for her $1,250.00 security deposit and the additional

              $1,500.00 paid to Defendan1 in July 2013, this court contends there was no error.

                  fl.     Default Provision Authorizing Damages

                  The Plaintiff contends that this court erred in entering judgment in favor of the Defendant

              for rent and late fees because it ignored evidence presented by the Plaintiff that the Defendant

              did not include a default provision authorizing the Defendant to claim damages which this court

              awarded in its verdict. While there was no provision expressly defining what the Plaintiff would

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               have to pay for if the property were damaged, this court awarded damages based on real property

               and contract principles.

                        A landlord may commence an action for injuries to a leased property if actions were

               taken that affect his reversionary interest. A tenant is liable for damages caused by malicious,

               abnormal, or unusual use. Pugh v. Holmes, 384 A.2d 1234 (Pa. Super. 1978) (citing Marini v.

               Ireland, 265 A.2d 526 (N.J. 1970). Additionally, the injury must be actual permanent harm that

               affects the value of the landlord's reversionary interest. Deleone v. Azad, Inc., 52 Pa. D. & C. 2d

               727, 1971 WL 14207 (C.P. 1971). The Plaintiff owned four cats and one dog, and allowed them

               to urinate and vomit throughout the property, not just in litter boxes. Cat urine is notorious for its

               noxious odor which is very hard to eliminate as well for as being a health risk. This court found

              that the Plaintiff allowing her cats to behave this way and not providing more sanitary conditions

              was an unusual use of the property. The cat urine caused actual permanent harm on the

              Defendant's reversion as demonstrated by him having to charge less money to get another tenant

              to lease the premises. For those reasons this court found that the Plaintiff was liable to the

              Defendant for the restoration of the floors, cleaning, duct cleaning, and the replacement of

              window blinds even though there was no default provision authorizing the damages.

                      The Plaintiff and the Defendant entered into a contract when they signed the residential

              lease starting on June 1, 2013. Because this court did not find a breach of any covenants on the

              Defendant's part, the Plaintiff was obligated to pay monthly rent, utilities, and late fees as

              stipulated by the contract. The Defendant reasonably began to mitigate his damages in October.

              Therefore, this court found that the Plaintiff was liable to the Defendant for September rent,

              utilities, and late fees,




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                  lll.       Damages for Mammoth Restoration Estimate

                  The Plaintiff contends this court erred in entering judgment in favor of Defendant for fees

              associated with Mammoth Restoration. Specifically the Plaintiff claims damages should not be

              awarded for this because the Defendant never paid to Mammoth Restoration, no work was done

              by Mammoth Restoration, the estimate was higher than a previous        Home Depot estimate

              furnished, and the Defendant performed flooring repairs similar to the one Plaintiff performed

              previously and only paid $905.00.

                         The Plaintiff should be charged for half of the Mammoth Restoration estimate. A

              Mammoth Restoration employee, admitted as an expert, testified to what he believed the

              Defendant would have to pay to completely eliminate the cat urine odor from the house as well

              as fix the floors. The Plaintiff provided no expert testimony to dispute the Mammoth Restoration

              estimate. While the Plaintiff provided some estimates, they were only estimates for how much it

              would cost to refinish the floors. One of the Plaintiffs estimates included the Defendant's initial

              estimates to just refinish the floors with Home Depot. Subsequently, the Defendant decided that

              the cat urine odor needed to be eliminated completely, which required replacing the floors. The

             other estimate the Plaintiff provided was one for $905.00 that she paid to have the floors

             refinished. However, the Mammoth Restoration estimate was for completely new floors as well

             as for a chemical treatment of the property to eliminate the cat urine odor. Also, the Plaintiff's

             estimate of $905.00 for the refinished floors is misleading. That money was only for a partially

             completed project before the Defendant decided he wanted to pick the company that would redo

             the floors. The Defendant asserts that the actual cost of refinishing the floors prior to re-leasing

             the property cost considerably more than that. However, the Defendant is not claiming damages

             for the temporary solution; he is claiming damages for a permanent solution for eliminating the



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               problem. Additionally, this court is not giving the Defendant a windfall. The Defendant still

               bears the cost of the other half of the Mammoth Restoration, this accounts for the depreciated

               condition the floors were in prior to their damage--the oak flooring was original to the house. For

               these reasons, th.is court found that the Defendant was entitled to damages for one half of the

               Mammoth Restoration estimate.

                   IV.       Damages awarded

                   The Plaintiff contends this court erred by failing to award the Plaintiff any damages other

               than a credit for two security deposits in light of substantial evidence presented establishing that

               the Defendant charged the Plaintiff an illegal security deposit of $1,500.00, the Defendant did

              not appropriately sequester the original security deposit as required by the Pennsylvania

              Landlord and Tenant Act, and the Defendant did not properly account for either security deposit

              within thirty days of surrender and acceptance       es required   by the Pennsylvania Landlord and

              Tenant Act.

                         With respect to the Plaintiff's first claim that of an illegal security deposit of $1 ,500.00

              this court addressed this issue above.

                         With respect to the Plaintiffs second claim that the Defendant did not properly sequester

              the original security deposit as required by the Pennsylvania Landlord Tenant Act, this court

              finds the claim meritless on appeal. This claim was not addressed in the Plaintiff's original

              complaint. Therefore, it would not be proper to determine this issue on appeal. Finally, the

              Plaintiff alleges that the Defendant did not properly account for either security deposit within the

             thirty days of surrender. However, no evidence was provided that the Defendant did not account

              for this money. Therefore, this court found that the money the Plaintiff had already paid the

             Defendant should be credited towards the final judgment.



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                       Therefore, this Court contends that it did not commit and error oflaw or abuse its

               discretion in entering judgment in favor of the Defendant and against the Plaintiff.




               Date:   JO f 3 I J J t/




                                                                                   Bradley P. Lunsford, Judge




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