                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Arthur R. Cox, Jr.,                                  :
                              Appellant              :
                                                     :
                       v.                            :
                                                     :       No. 1329 C.D. 2018
Johnstown Housing Authority                          :       Argued: May 7, 2019


BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION BY
JUDGE COVEY                                          FILED: June 5, 2019

                Arthur R. Cox, Jr. (Cox) appeals from the Cambria County Common
Pleas Court’s (trial court) August 8, 2018 order affirming the Johnstown Housing
Authority’s (Authority) decision terminating his housing assistance and dismissing
his appeal. Essentially, the issue for this Court’s review is whether substantial record
evidence supported the trial court’s decision.1
               In 2013, Cox applied to participate in the federally funded, tenant-based2
Housing Choice Voucher Program pursuant to Section 8 of the United States (U.S.)

       1
          Cox presents five issues in his Statement of the Questions Involved: (1) whether there were
facts to support the Authority’s termination of Cox’s benefits for impacting the other residents’
health, safety or right to peaceful enjoyment of the premises; (2) whether Cox’s pattern of alcohol
abuse threatened other residents’ health, safety or right to peaceful enjoyment of the premises; (3)
whether the location of a public drunkenness incident was relevant; (4) whether evidence of Cox’s
prior acts were relevant after he was granted a voucher under Section 8 of the United States
Housing Act of 1937, as amended, 42 U.S.C. § 1437f (Section 8 Program); and (5) whether the trial
court’s finding that Cox’s pattern of alcohol abuse may threaten the other residents’ health, safety or
right to peaceful enjoyment of the premises was overbroad. See Cox Br. at 5-6. Because these
issues are subsumed in whether there was substantial record evidence to support the trial court’s
decision, they will be addressed therein.
        2
          “Unlike public housing assistance, which attaches to the rented unit, Section 8 [Program]
tenant-based assistance attaches to the tenant. This means that a participant in a Section 8
[Program] tenant-based program may move to another dwelling with continued assistance when his
Housing Act of 1937, as amended, 42 U.S.C. § 1437f (Housing Act) (Section 8
Program),3 which is a U.S. Department of Housing and Urban Development (HUD)
program the Authority operates in accordance with the Code of Federal Regulations
(HUD Regulations).4 Because Cox is a veteran, he applied for the Section 8 Program
through the Veteran’s Administration Medical Center (VAMC), and the Veteran’s
Affairs Supportive Housing (VASH) Program screened and approved him.                          See
Original Record (O.R.), Notes of Testimony, July 20, 2018 (N.T.) Authority Ex. 2.
              Pursuant to the Housing Act, HUD Regulations restrain tenant
participants’ conduct. On October 1, 2013, Cox entered into a Housing Assistance
Payment (HAP) Contract (HAP Contract) with a private landlord to lease 200
Southmont Boulevard, Apartment 4, Johnstown, Pennsylvania. See N.T. Authority
Ex. 1. Under the Real Estate Lease Agreement portion of the HAP Contract, Cox
agreed

              not to permit or act or practice illegal or legal acts
              injurious to the building, or persons, or in the building,
              on the property, or which may be disturbing to other
              residents or neighbors. Any acts can and will result in
              immediate eviction and loss of rent and[/]or security
              deposit.

N.T. Authority Ex. 1 at 17 (emphasis added).
              In the Tenancy Addendum to the HAP Contract, Cox further agreed that
“[t]he [Authority] may terminate program assistance for the family for any grounds

assisted lease ends. 24 C.F.R. § 982.314.” Powell v. Hous. Auth. of City of Pittsburgh, 812 A.2d
1201, 1203 (Pa. 2002). Section 8 Program tenant-based participants select a suitable rental and,
after the Authority approves the tenancy and enters into an agreement with the owner to subsidize
the rent, the owner and the Section 8 Program participant enter into a lease. See id.
        3
           The Section 8 Program was enacted “[f]or the purpose of aiding low-income families in
obtaining a decent place to live and of promoting economically mixed housing[.]” 42 U.S.C. §
1437f(a).
        4
          The federal government funds the Section 8 Program, but local public housing authorities,
which are bound by HUD Regulations, see 24 C.F.R. §§ 982.1-982.643, administer it. See 42
U.S.C. § 1437f(o).
                                                2
authorized in accordance with HUD requirements. If the [Authority] terminates
program assistance for the family the lease terminates automatically.” N.T. Authority
Ex. 1 at 22. Section 4 of Cox’s Section 8 Program voucher (Voucher), entitled
“Obligations of the Family,” further specified:

             When the family’s unit is approved and the HAP [C]ontract
             is executed, the family must follow the rules listed below in
             order to continue participating in the [Section 8 P]rogram.
             ....
             D. The family (including each family member) must not:
             ....
             4. Engage in . . . criminal activity that threatens the
             health, safety or right to peaceful enjoyment of other
             residents and persons residing in the immediate vicinity
             of the premises.
             ....
             9. Engage in abuse of alcohol in a way that threatens
             the health, safety or right to peaceful enjoyment of the
             other residents and persons residing in the immediate
             vicinity of the premises.

N.T. Authority Ex. 2 at 2-3 (emphasis added).
             On September 2, 2017, the Johnstown Police Department received a
report that Cox was asking sexually explicit questions and propositioning a 17-year-
old girl at the Cambria County Transit Authority bus station (CamTran Station),
located at 539 Main Street in Johnstown. While speaking with Cox, Johnstown
Police Officers determined that Cox was intoxicated; he became disorderly with the
officers, swore in front of children and resisted arrest. See N.T. Authority Ex. 4. On
December 8, 2017, Cox was charged with disorderly conduct (unreasonable noise),




                                           3
public drunkenness and corruption of minors. See N.T. Authority Ex. 5. Cox was
ultimately found guilty of the public drunkenness charge.5
              On December 19, 2017, the Authority notified Cox that, due to his
September 2, 2017 behavior, he was being dismissed from the Section 8 Program
effective January 31, 2018.6 See N.T. at 37. Cox requested an informal hearing,
which was held on January 10, 2018. See N.T. at 38. On January 12, 2018, the
Authority sent Cox a Notification of Informal Hearing Decision terminating his
participation in the Section 8 Program. See O.R. Item 1, Ex. A. The Authority
concluded that Cox “violated the rules and regulations of the Section 8 [P]rogram by
being involved in criminal activity which threatens the health, safety and peaceful
enjoyment of other residents.” O.R. Item 1, Ex. A at 2.
              Cox appealed to the trial court, which conducted a de novo hearing on
July 20, 2018.7 At the hearing, Cox acknowledged that, under the HAP Contract,
criminal activity or alcohol use that interferes with the property or the neighbors
jeopardizes his Section 8 Program eligibility. See O.R. at 20-23. Cox admitted that
he had alcohol in his system at the time of the September 2, 2017 CamTran Station
incident. See N.T. at 13, 15, 23-24. Cox disputed that his conduct on September 2,
2017 violated his Section 8 Program obligations.
              The trial court admitted into evidence the Google maps page reflecting
that the CamTran Station is located 1.9 miles from Cox’s residence. See N.T. at 23,

       5
          Cox was found guilty on May 2, 2018, fined $50.00 and ordered not to have contact with
the victim. Cox was found not guilty of the disorderly conduct and corruption of minors charges.
See N.T. Authority Ex. 5 at 2-5.
        6
          The Authority’s notice is not part of the record before this Court.
       7
              A de novo review entails, as the term suggests, full consideration of
              the case another time. If the trial court is conducting a de novo
              hearing the court must act as a nisi prius court, weighing the evidence
              and making its own findings of fact and conclusions of law.
McLaughlin v. Ctr. Cty. Hous. Auth., 616 A.2d 1073, 1074-75 (Pa. Cmwlth. 1992) (citation
omitted).
                                                4
26; see also N.T. Cox Ex. 1. The trial court also admitted into evidence Cox’s
Cambria County Court Summary that reflected Cox’s June 1994 guilty pleas to
charges of theft by unlawful taking and receiving stolen property, a March 1995
guilty plea for terroristic threats, a September 1997 guilty plea for receiving stolen
property, and a November 2012 no contest plea for defiant trespass.                         See N.T.
Authority Ex. 6.
               The Authority’s Section 8 Program Supervisor Yvette Penrod (Penrod)
testified that VASH screened and approved Cox for the Section 8 Program before he
applied to the Authority.8 See N.T. at 34-35. Regarding his Section 8 Program
termination, Penrod recalled that it was based on Cox’s charges relative to the
September 2, 2017 CamTran Station incident, which involved alcohol abuse. See
N.T. at 28, 32.
               Penrod explained that, as directed by HUD Regulations, the Authority
enacted guidelines and regulations (Administrative Plan) relating to Section 8
Program terminations. See N.T. at 29-30, 33; see also Section 982.54 of HUD
Regulations, 24 C.F.R. § 982.54 (relating to authority administrative plans). Penrod
clarified that the Authority withdrew Cox’s assistance, but Cox could remain at his
residence and pay the landlord full rent.9 See N.T. at 35-36.


       8
         At the trial court hearing, in the Authority’s brief, and at oral argument before this Court,
the Authority’s counsel represented that the Authority had no choice but to accept Cox into the
Section 8 Program based on the VASH approval. See N.T. at 43; see also Authority Br. at 11-12.
However, Section 982.516(a)(1) of the HUD Regulations, 24 C.F.R. § 982.516(a)(1), directs the
Authority to conduct annual tenant recertifications. At oral argument before this Court, Cox’s
counsel represented that the Authority annually recertified Cox for the Section 8 Program. Section
982.551(b)(2) of the HUD Regulations, 24 C.F.R. § 982.551(b)(2), requires Cox to supply any
information the Authority requests during the recertification process. Therefore, the Authority
could have reviewed and possibly challenged Cox’s criminal record during Cox’s 2014, 2015 and
2016 recertifications.
       9
         In his brief to this Court, Cox states that he “continues to reside in the same residence as he
did before his voucher was terminated. . . . The only difference is that he now has no voucher . . . .”
Cox Br. at 24.
                                                   5
               Based upon the evidence, on August 8, 2018, the trial court affirmed the
Authority’s decision to terminate Cox’s Section 8 Program benefits and dismissed his
appeal. The trial court made the following findings of fact (FOF):

               1. [The Authority] presented credible evidence that Cox’s
                  abuse or pattern of abuse of alcohol may threaten the
                  health, safety, or right to peaceful enjoyment of other
                  residents.
               2. [The Authority] exercised its discretion to permissibly
                  terminate Cox’s benefits pursuant to its [Administrative
                  Plan] mandated by [HUD]. [N.T. Authority Ex. 3].
               3. The [trial c]ourt did not find the testimony of Cox to be
                  credible.
               4. The issue of whether the incident at the [CamTran
                  Station] was in the immediate vicinity of Cox’s
                  residence is not relevant to whether [the Authority]
                  produced evidence of abuse or a pattern of abuse of
                  alcohol by Cox that may threaten the health, safety or
                  right to peaceful enjoyment of other residents.

Trial Ct. Op. at 2. The trial court concluded that “[the Authority] had the authority
and discretion to terminate benefits in this case and the [trial c]ourt will not substitute
its discretion [for] that of [the Authority].” Trial Ct. Op. at 3. On September 7, 2018,
Cox appealed to this Court.10
               Cox argues that the trial court erred and misapplied the law in affirming
the Authority’s decision to terminate his Section 8 Program assistance.                             He
specifically contends that substantial evidence did not support the trial court’s
conclusion that Cox’s behavior on September 2, 2017 at the CamTran Station

       10
           “Our scope of review is limited to determining whether appellant’s constitutional rights
have been violated and whether the lower court manifestly abused its discretion or committed an
error of law.” McLaughlin, 616 A.2d at 1074 n.3. Where, as here, the trial court took additional
evidence and made its own findings of fact, “[t]he trial court abuses its discretion if its findings are
not supported by substantial evidence, i.e., such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp.
Bd. of Supervisors, 954 A.2d 718, 722 n.1 (Pa. Cmwlth. 2008).
                                                   6
violated his HAP Contract, and the trial court’s conclusion was overbroad since the
incident did not occur at or near his leased premises, it did not impact other residents’
health, safety or right to peaceful enjoyment of the premises, and he was properly
vetted before receiving his Voucher.
             The Authority rejoins that “[t]he only requirement for termination of
benefits is that the pattern of alcohol abuse threatens the health, safety and right to
peaceful enjoyment of the premises by other residents[,]” Authority Br. at 10, and
that “HUD [R]egulations also allow [the Authority] to terminate Section 8 [Program]
assistance if a family member has engaged in criminal activity, 24 C.F.R. [§]
982.553(c)[,]” which the Authority proved. Authority Br. at 10-11.
             This Court has recognized:

             The relevant provisions of the Housing Act and its
             associated regulations, which apply throughout the country,
             provide particularized standards and criteria that all public
             housing authorities must consider and follow when
             reviewing an application for public housing. These criteria
             assure that housing authorities will use only those factors
             deemed permissible for consideration by the Housing Act
             and its associated regulations when reviewing applications
             for public housing and limit the discretion that a public
             housing authority may exercise in deciding whether to deny
             applications for public housing. Because a public housing
             authority’s decision to grant or deny applications must be in
             accordance with the statutory and regulatory criteria, the
             public housing authority’s discretion is certainly not
             ‘unfettered’ and, therefore, should not be ‘unassailable.’
             Caba [v. Weaknecht], 64 A.3d [39,] 63 [(Pa. Cmwlth.
             2013)].
Bray v. McKeesport Hous. Auth., 114 A.3d 442, 453 (Pa. Cmwlth. 2015) (en banc).
             The credible evidence presented to the trial court established that the
Authority terminated Cox’s Section 8 Program benefits because he was involved in a
single alcohol-related crime that occurred approximately two miles from his
residence on September 2, 2017, and because he had a record of prior criminal

                                           7
charges. Based thereon, the trial court found that the Authority properly exercised its
discretion to terminate Cox’s assistance since Cox’s purported “abuse or pattern of
abuse of alcohol may threaten the health, safety, or right to peaceful enjoyment of
other residents,” and that the vicinity of the CamTran Station incident was not
relevant. Trial Ct. Op. at 2, FOF 1 (italic emphasis added); see also FOFs 1, 4.
             Section 8(d)(1)(B)(iii) of the Housing Act set forth the statutory criteria
to which the Authority was bound, thereby mandating that HAP contracts include
language specifying that

             during the term of the lease, any criminal activity that
             threatens the health, safety, or right to peaceful enjoyment
             of the premises by other tenants, any criminal activity that
             threatens the health, safety, or right to peaceful
             enjoyment of their residences by persons residing in the
             immediate vicinity of the premises, or any drug-related
             criminal activity on or near such premises, engaged in by a
             tenant of any unit, any member of the tenant’s household, or
             any guest or other person under the tenant’s control, shall
             be cause for termination of tenancy[.]

42 U.S.C. § 1437f(d)(1)(B)(iii) (emphasis added). Section 8 of the Housing Act does
not specify that alcohol abuse is a basis upon which a housing authority may
terminate assistance.
             However, pursuant to Section 982.552(c)(1) of the HUD Regulations the
Authority “may at any time . . . terminate program assistance for a participant . . . [i]f
the family violates any family obligations under the program . . . .” 24 C.F.R. §
982.552(c)(1). Family obligations are set forth in Section 982.551 of the HUD
Regulations, which provides, in relevant part:

             (l) Crime by household members. The members of the
             household may not engage in drug-related criminal activity
             or violent criminal activity or other criminal activity that
             threatens the health, safety, or right to peaceful
             enjoyment of other residents and persons residing in the


                                            8
                 immediate vicinity of the premises (see [Section 982.553
                 of HUD Regulations, 24] § 982.553). . . .[11]
                 (m) Alcohol abuse by household members. The members
                 of the household must not abuse alcohol in a way that
                 threatens the health, safety or right to peaceful
                 enjoyment of other residents and persons residing in the
                 immediate vicinity of the premises.

24 C.F.R. § 982.551 (emphasis added).
                 Based upon the foregoing, the Real Estate Lease Agreement portion of
Cox’s HAP Contract prohibited him from committing acts that would injure persons
in the building or on the property or which would disturb other residents or
neighbors.       See N.T. Authority Ex. 1 at 17.             Cox’s Voucher more specifically
prohibited him from engaging in criminal activity and/or alcohol abuse “that
threatens the health, safety or right to peaceful enjoyment of other residents and
persons residing in the immediate vicinity of the premises.” N.T. Authority Ex. 2 at
2-3.   Under his Tenancy Addendum to the HAP Contract, Cox agreed that the
Authority may terminate his assistance “for any grounds authorized in accordance
with HUD requirements[,]” N.T. Authority Ex. 1 at 22, which included criminal
activity and/or alcohol abuse that “threatens the health, safety or right to peaceful
enjoyment of other residents and persons residing in the immediate vicinity of the
premises.”12 24 C.F.R. § 982.551.


       11
            Section 982.553(c) of the HUD Regulations further states, in pertinent part:
                 The [Authority] may terminate assistance for criminal activity by a
                 household member as authorized in this section if the [Authority]
                 determines, based on a preponderance of the evidence, that the
                 household member has engaged in the activity, regardless of
                 whether the household member has been arrested or convicted
                 for such activity.
24 C.F.R. § 982.553(c) (emphasis added).
       12
          Section 8 of the Tenancy Addendum also authorized Cox’s landlord to terminate his
tenancy for “[c]riminal activity or alcohol abuse” “on or near the premises” or any criminal activity
                                                   9
               Regardless of whether the only proven incidence of Cox’s alcohol use
presented to the trial court (the September 2, 2017 incident) rose to the level of
“alcohol abuse,” he was criminally charged for that incident. Accordingly, Cox
participated in criminal activity.13         However, based upon all of the language in
Section 8 of the Housing Act, HUD Regulations, the HAP Contract, the Tenancy
Addendum, the Voucher and the Administrative Plan, it is clear that criminal
activity and/or alcohol abuse alone is not a sufficient basis upon which to
terminate Section 8 Program benefits.
               Congress did not state in Section 8 of the Housing Act that any and all
criminal activity, wherever it occurs, is grounds to terminate Section 8 Program
benefits. Neither did the HUD Regulations, the HAP Contract nor the documents that
Cox signed place him on notice that any and all criminal activity and/or alcohol
abuse no matter where it takes place constitute grounds upon which the Authority
could end his benefits. Rather, based upon Section 8(d)(1)(B)(iii) of the Housing Act
and applicable HUD Regulations, the Authority must prove, and the court must find
that the tenant: (1) engaged in criminal activity (and/or alcohol abuse); and (2) such
activity threatens the health, safety, or right to peaceful enjoyment of residents and/or
persons in the immediate vicinity thereof. The second element demands proof of a
threat to the health, safety or right to peaceful enjoyment of residents and/or persons



“that threatens the health or safety of or the right to peaceful enjoyment of the premises by residents
. . . [or] persons residing in the immediate vicinity of the premises.” N.T. Authority Ex. 1 at 21.
          13
             Notably, the portions of the Administrative Plan admitted into evidence refer only to
“violent criminal activity,” which is defined as “any criminal activity that has as one of its elements
the use, attempted use or threatened use of physical force substantial enough to cause, or be
reasonably likely to cause, serious bodily injury or property damage.” N.T. Authority Ex. 3 at 12-
15. The record evidence is unclear as to whether criminal activity that is not violent is a basis on
which the Authority would terminate Section 8 Program benefits. Notwithstanding, the HUD
Regulations authorize the Authority to terminate assistance for criminal activity, whether violent or
non-violent.
                                                  10
in the immediate vicinity on or near the Section 8 Program leased premises.14 Thus,
it is not the occurrence of the criminal and/or alcohol-related act that is needed to
jeopardize Cox’s assistance or the possibility that it could occur, but there must
also be proof that the health, safety or peaceful enjoyment rights of those who
reside in the “immediate vicinity” of Cox’s premises was “threatened” by that
act. 24 C.F.R. § 982.551 (emphasis added).
               The term “threatens” and the phrase “immediate vicinity” are not
defined in Section 8 of the Housing Act, HUD Regulations, the HAP Contract, the
Tenancy Addendum, the Voucher or the Administrative Plan. Just as our state courts
have held relative to state statutes,15 the United States Supreme Court has ruled that
where a federal statute does not define a term, the courts must “look first to the

       14
           This interpretation comports with this Court’s decision in BCJ Management, L.P. v.
Cotton (Pa. Cmwlth. No. 1168 C.D. 2016, filed July 10, 2017), involving a Section 8 Program
settlement agreement between the tenant and the landlord containing language nearly identical to
that at issue in this case, except that “affects” was used in place of “threatens.” This Court ruled
that two proofs were necessary to support a breach: “(1) abuse of alcohol; and, (2) such abuse
affects [the] health, safety or right to peacefully enjoy the premises.” Id., slip op. at 8. Because the
tenant’s breach involved a physical confrontation in which the intoxicated tenant slapped another
person on the public housing community premises where she lived, this Court held that she
breached the settlement agreement. Cotton is cited only for its persuasive value. See Section
414(a) of the Commonwealth Court’s Internal Operating Procedures (IOP), 210 Pa. Code §
69.414(a).
        See also the District of Columbia Superior Court’s holding in D.C. Housing Authority v.
Whitfield (D.C. Super. No. 04-LT-401, filed August 11, 2004) (unreported), wherein the court
interpreted language similar to that before this Court, to require an additional showing that the
documented illegal act threatened the health and safety of other residents or disturbed the peaceful
enjoyment of other residents.
       15
               ‘[I]n statutory interpretation, our task is to discern the intent of the
               General Assembly, with the foremost indication being the statute’s
               plain language.’ Oliver v. City of Pittsburgh, . . . 11 A.3d 960, 965
               ([Pa.] 2011). Where the intent of the legislature is clear from the
               plain meaning of the statute, courts must not pursue statutory
               construction. 1 Pa.C.S. § 1921(b); Ramich v. Workers’ Comp[.]
               Appeal B[d.] (Schatz Elec[.], Inc.), . . . 770 A.2d 318, 322 ([Pa.]
               2001).
Twp. of Washington v. Twp. of Upper Burrell, 184 A.3d 1083, 1088 (Pa. Cmwlth. 2018).
                                                  11
word’s ordinary meaning.”16 Mohamad v. Palestinian Auth., 566 U.S. 449, 454
(2012); see also Municipality of Mt. Lebanon v. Fillen, 151 A.3d 722 (Pa. Cmwlth.
2016) (where statutory terms are not defined, the Commonwealth Court will look to
common usage). Further, to ascertain the common usage and meaning of a word in a
statute, the courts may properly consider dictionary definitions.                          Mohamad;
Municipality of Mt. Lebanon.
               According to Merriam-Webster’s Collegiate Dictionary (11th ed. 2004)
(Merriam-Webster), to “threaten” means “to hang over dangerously : menace” or “to
cause to feel insecure or anxious[.]” Id. at 1302. Merriam-Webster defines “vicinity”
as “a surrounding area or district :        NEIGHBORHOOD[.]”         Id. at 1393. “Immediate” is
defined as “existing without intervening space or substance . . . : being near at
hand[.]”     Id. at 620.      Moreover, in Powell v. Housing Authority of the City of
Pittsburgh, 760 A.2d 473, 482 (Pa. Cmwlth. 2000) (Powell I) (en banc), rev’d, 812
A.2d 1201 (Pa. 2002), this Court affirmed the trial court’s conclusion that a
carjacking committed by the Section 8 Program participant’s sons approximately 0.8
miles from the leased premises was not “in the immediate vicinity of the premises.”17

       16
           “[W]here a statute or regulation is based on federal statutes or regulations using the same
language, it is appropriate to consider federal decisions and regulatory interpretations of the
language at issue.” Sedgwick Claims Mgmt. Servs., Inc. v. Bureau of Workers’ Comp., Fee Review
Hearing Office (Piszel & Bucks Cty. Pain Ctr.), 185 A.3d 429, 434 (Pa. Cmwlth. 2018); see also
Bray.
        17
           This Court acknowledges that, on appeal, the Pennsylvania Supreme Court reversed
Powell I on other grounds (Powell II), stating that the trial court and this Court misread the HUD
Regulations to conclude that the authority could only terminate Section 8 Program benefits for
violent criminal activity if there was proof that it threatened the residents’ or nearby persons’ health,
safety or peaceful enjoyment. The Powell II Court concluded that an authority may terminate
Section 8 Program benefits for violent crime without having to prove that the activity threatened
residents’ or nearby persons’ health, safety or peaceful enjoyment. Therefore, the Powell II Court
did not reach or overturn the immediate vicinity question on mootness grounds.
        Notwithstanding, in BCJ Management, L.P. v. Russell (Pa. Super. No. 957 WDA 2017, filed
May 8, 2018), the Pennsylvania Superior Court deemed the holding in Powell I instructive and
affirmed the trial court’s order sustaining preliminary objections to an eviction complaint on the
basis that the landlord could not prove that the tenant’s criminal activity, 1.2 miles from the leased
                                                  12
Therefore, based upon the common usage of these terms, the Authority failed to
present one scintilla of evidence at the trial court hearing that Cox’s September
2, 2017 incident made other residents of the premises where Cox lived at 200
Southmont Boulevard, Johnstown, or persons in the immediate vicinity of those
premises, feel insecure or anxious for their health, safety or peaceful enjoyment.
The Authority had no statutory or regulatory basis on which to terminate Cox’s
benefits.    The decision to terminate his benefits may not be based on mere
speculation that the residents or persons in the immediate vicinity of those premises
could or may be threatened at some point in the future.18               Accordingly, this Court
holds that since the trial court’s decision was not based on substantial record evidence
that Cox’s September 2, 2017 incident, 1.9 miles from his residence, threatened other
residents of the premises where Cox lived at 200 Southmont Boulevard, Johnstown,
or persons in the immediate vicinity of those premises when it occurred, it abused its
discretion by concluding otherwise.
               Based on the foregoing, the trial court’s order is reversed.


                                             ___________________________
                                             ANNE E. COVEY, Judge


premises, threatened the health, safety or peaceful enjoyment of persons residing in the immediate
vicinity thereof. “Although this Court is not bound by decisions of the Superior Court, they are
persuasive precedent where they address analogous issues and do not conflict with any decisions or
reasoning of this Court or our Supreme Court.” Kalmeyer v. Municipality of Penn Hills, 197 A.3d
1275, 1280 (Pa. Cmwlth. 2018); see also Lerch v. Unemployment Comp. Bd. of Review, 180 A.3d
545 (Pa. Cmwlth. 2018). Russell is not inconsistent with this Court’s or the Supreme Court’s
precedents, and we find it persuasive here.
        18
           Because Cox was approved for the Section 8 Program after his prior arrests, this Court is
not convinced that the Authority may now penalize him for them. Further, Section 12-II.D. of the
Administrative Plan specifically states that “a record of arrest(s) will not be used as the basis for
termination[.]” N.T. Authority Ex. 3 at 12-10. Even if the trial court properly considered Cox’s
past criminal history, there was no record evidence that those crimes occurred at or near Cox’s
Section 8 Program residence and/or threatened residents or persons in the immediate vicinity since
Cox moved there in 2013.
                                                 13
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Arthur R. Cox, Jr.,                         :
                           Appellant        :
                                            :
                      v.                    :
                                            :     No. 1329 C.D. 2018
Johnstown Housing Authority                 :


                                       ORDER

             AND NOW, this 5th day of June, 2019, the Cambria County Common
Pleas Court’s August 8, 2018 order is reversed.


                                       ___________________________
                                       ANNE E. COVEY, Judge
