J-A29009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ADAM GRODIN                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LON FARR AND REBECCA DIRKSEN               :
                                               :
                       Appellants              :   No. 45 WDA 2019

             Appeal from the Judgment Entered December 19, 2018
          In the Court of Common Pleas of Allegheny County at No(s):
                                LT-18-000368
                                LT-18-000369


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED FEBRUARY 26, 2020

        Appellants, Lon Farr and Rebecca Dirksen (collectively “Tenants”),

appeal from the December 19, 2018 judgment entered in favor of Appellee,

Adam Grodin (“Landlord”), and against Tenants, after a non-jury trial on

Landlord’s complaint for possession and recovery of back rent. 1 After careful

review, we reverse and remand for proceedings consistent with this

memorandum.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Tenants purport to appeal from the order dated December 13, 2018, denying
their post-trial motion; however, an appeal properly lies from the entry of
judgment following the trial court’s disposition of post-trial motions. See
Fanning v. Davne, 795 A.2d 388 (Pa. Super. 2002).           Although Tenants
erroneously appealed from the order denying their post-trial relief, judgment
was subsequently entered on December 19, 2018, and their notice of appeal
relates forward to that date.       See Pa.R.A.P. 905(a)(5).       Hence, no
jurisdictional defects impede our review.
J-A29009-19



       Landlord initiated this action on March 10, 2018, with the filing of a

landlord/tenant complaint in the magisterial district court, in which he sought

possession of real property and monetary damages for back rent under the

parties’ residential lease. On March 19, 2018, Tenants filed a counter-claim,

seeking return of their security deposit and first month’s rent held by Landlord.

By order dated March 22, 2018, the magisterial district judge entered

judgment in favor of Tenants.        Landlord filed timely appeals of both his claim

and the counterclaim to the Court of Common Pleas of Allegheny County,

which were assigned two separate docket numbers (i.e., LT-18-000368 and

LT-18-000369, respectively).         The two appeals were consolidated by court

order dated May 18, 2018, at docket number LT-18-000368.2

       On May 31, 2018, a panel of arbitrators entered an award for Tenants

in the amount of $6,228.60.             Landlord filed a timely appeal from the

arbitration award on June 29, 2018.              A non-jury trial was scheduled for

September 7, 2018.

               The evidence adduced at trial established that … Landlord,
       at all relevant times[,] owned property located at 5549 Woodmont
       Street, Pittsburgh, Pennsylvania, 15217. On January 13, 2016, …
       Tenants executed a lease regarding the property with Landlord
       that began on August 1, 2016, and ended on June 30, 2017. The
____________________________________________


2 We recognize that our Supreme Court recently held that “the proper practice
under Rule 341(a) is to file separate appeals from an order that resolves issues
arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018). The Walker holding is not applicable in the instant matter,
however, as the aforementioned cases were consolidated prior to Landlord’s
filing of his notice of appeal.


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     monthly rent was $2,340.00, plus utilities, gas, electric, water and
     sewer. On January 18, 2017, Tenants renewed the lease from
     July 1, 2017, through June 30, 2018. The only change was that
     rent increased to $2,440.00 a month. Landlord received a security
     deposit of $2,440.00[,] and the last month’s rent of $2,440.00.

            On July 9, 2017, [Mr.] Farr emailed Landlord to inform him
     that Tenants purchased a new home and would vacate the
     property on August 15, 2017. The parties agreed that Landlord
     would attempt to either sell the property or lease it to a new
     tenant[,] and Tenants would be relieved of their lease obligations
     if this occurred. Landlord advertised the property for rent and
     listed the property for sale with a real estate agent in August of
     2017. Efforts to rent or sell the property were unsuccessful.

           Tenants moved out of the property by the end of August,
     2017, and had removed all of their possessions from the leased
     premises by the end of December. Tenants continued to pay rent
     through February of 2018.

           In early February of 2018, Landlord canceled the realtor
     agreement to sell the property because he had secured a new
     tenant whose lease would begin on July 1, 2018. Landlord
     changed the front door locks because it was possible that realtors
     or others had keys to the property. Landlord did not inform
     Tenants before he changed the locks and did not give them new
     keys immediately afterwards. He believed Tenants could still
     access their property by using their back door key and did not
     know they were unable to enter the property. After Tenants
     discovered that the locks had been changed, they contacted an
     attorney to see if they could terminate the lease.

           Landlord received a letter from Tenants dated February 24,
     2018, stating they considered the lease terminated as of February
     11, 2018, when they were locked out of the premise[s]. It is
     uncontroverted that after Landlord received the letter, he
     immediately attempted to provide Tenants with keys for the new
     locks, offering to personally deliver them to Tenants. Landlord
     called Tenants, left messages[,] and communicated with them
     through email, but Tenants refused to accept the new keys.

           [The trial court] found it credible that Landlord did not
     intend to lock Tenants out of the property. Landlord believed that
     Tenants had a key to the back door deadbolt when he changed
     the locks, and thought it was the only functioning back door lock.


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J-A29009-19


         Although Landlord expected Tenants to use the back door key
      to access the property, Tenants never received the necessary back
      door keys. Landlord had not provided Tenants keys to the
      property when they took possession. [Mr.] Farr had received the
      keys from the previous tenant, Brendan Meeder, whom he knew.
      The testimony was unclear whether Tenants received a key for the
      back door deadbolt, but [Mr.] Farr testified that he was able to
      unlock the back door deadbolt. [Mr.] Farr stated:

         [W]hen I was verifying that I could not get into the property
         on February 11, I used the keys that I had and tried to use
         it on both the deadbolt[,] as well as on the key lock on the
         back. Neither of the keys I had would operate the knob
         lock, but they would operate the deadbolt. So[,] it appeared
         to be that it was two separately sized keys between the
         deadbolt and the knob, which I would say [] would require
         two different keys.

         The back door had two locks, a handle lock and a deadbolt lock,
      and Tenants definitely did not receive keys to both locks. Landlord
      never gave [Mr.] Meeder a key for the back door handle lock
      because he thought it was broken, so Tenants could not have
      received one.

Trial Court Opinion (“TCO”), 4/15/19, at 1-3 (emphasis and citations to record

omitted; commas added to some numbers).

      The trial court entered a verdict in favor of Landlord on September 13,

2018, and awarded him damages in the amount of $5,048.00. On September

21, 2018, Tenants filed a motion for post-trial relief. By order of court dated

December 13, 2018, the trial court modified the amount of damages to

$4,880.00, but otherwise denied Tenants’ motion. A judgment in the amount

of $4,880.00 was entered in favor of Landlord and against Tenants on

December 19, 2018. Tenants filed a timely notice of appeal on January 3,

2019. Herein, Tenants raise the following issues for our review:

      1. Whether the trial court erred in concluding that [] Landlord’s
         act of changing the locks on the front door to the leased

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J-A29009-19


          premises during the term of the lease was not a breach of the
          explicit and implicit covenant of quiet enjoyment terminating
          the Lease, and [] Tenants’ obligation to pay rent[?]

       2. Whether the trial court erred in concluding that [] Landlord’s
          act of changing the locks on the front door to the leased
          premises during the term of the lease did not constitute a
          constructive eviction of [] Tenants, in part because [] Landlord
          did not intend to exercise possession[?]

       3. Whether the trial court erred in concluding that Tenants failed
          to present sufficient evidence that [] Landlord’s acknowledged
          breach of the parties’ Lease was not material when [] Landlord
          changed the locks to the front door in violation of the lease,
          the covenant of quiet enjoyment[,] and[] the[] prohibition
          against self-help evictions[?]

       4. Whether the trial court erred by failing to find that Landlord’s
          act of changing the locks and exercising possession of the
          leased premises terminated Tenants’ obligation to pay rent and
          entitled Tenants to the return of escrow monies?

See Tenants’ Brief at 9-10, 35 (unnecessary capitalization omitted).3

       We apply the following standard of review to a non-jury trial verdict:

       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 the 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
____________________________________________


3 We acknowledge that issue 4 is not listed within Tenants’ Statement of the
Questions Involved, as required under Pa.R.A.P. 2116; however, their brief
does include a separate argument section regarding this claim. Moreover, the
record reflects that this issue was properly preserved in Tenants’ motion for
post-trial relief, and it was addressed by the trial court in its Pa.R.A.P. 1925(a)
opinion. Based on the foregoing, we determine that Tenants’ omission of this
issue from their Statement of Questions Involved does not impede our ability
to conduct meaningful appellate review and, thus, we will address the merits
of this issue herein.

                                           -5-
J-A29009-19


        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 facts of the case. The trial court, as the finder
        of fact, is free to believe all, part or none of the evidence
        presented. Issues of credibility and conflicts in evidence are for
        the trial court to resolve; this Court is not permitted to reexamine
        the weight and credibility determination or substitute our
        judgment for that of the fact finder.

Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P., 181 A.3d

1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks

omitted).

        Preliminarily, we observe that the parties’ lease agreement contains an

explicit warrant of Tenants’ quiet enjoyment of the property.         See Lease

Agreement, 1/13/16, at 5 ¶22.4 Additionally, we note that “[i]n every lease

of real property[,] there will be implied a covenant of quiet enjoyment.”

Pollock v. Morelli, 369 A.2d 458, 460 (Pa. Super. 1976).

        The legal implication of the covenant [for quiet enjoyment],
        express or implied, is that the lessor will permit the tenant to
        enjoy fully the demised premises subject to any rights of the
        lessor…. The covenant is breached when a tenant’s possession is
        impaired by the acts of the lessor or those acting under him….
        The impairment of the lessee’s possession need not be total, but
        the utility of the premises must be substantially decreased by the
____________________________________________


4   The lease agreement provides, in relevant part:

        22. QUIET ENJOYMENT:        Lessor hereby warrants the quiet
        enjoyment of Tenant in the leased premises.

Id.

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      landlord’s interference with a right or privilege which is necessary
      to the enjoyment of the premises….

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 967-

68 (Pa. Super. 2015) (internal quotation marks and citations omitted).

      Constructive eviction is one species of a violation of the lessee’s right to

quiet enjoyment. Id. at 973. See also Kohl v. PNC Bank Nat. Ass’n, 912

A.2d 237, 249 (Pa. 2006) (noting that this Court has concluded repeatedly

that a breach of the covenant of quiet enjoyment can be demonstrated

through constructive eviction).

      To constitute a constructive eviction, the interference by a
      landlord with the possession of his tenant or with the tenant’s
      enjoyment of the demised premises must be of a substantial
      nature and so injurious to the tenant as to deprive him of the
      beneficial enjoyment of a part or the whole of the demised
      premises, … to which the tenant yields, abandoning the possession
      within a reasonable time.

Sears, 126 A.3d at 968 (quoting Kuriger v. Cramer, 498 A.2d 1331, 1338

(Pa. Super. 1985)) (emphasis omitted).

      Instantly, Tenants claim that Landlord’s act of changing the locks on the

front door of the leased premises during the term of their lease constituted a

breach of the covenant of quiet enjoyment, as well as a constructive eviction.

Tenant’s Brief at 19, 24. They argue that when Landlord changed the locks,

he effectively terminated their ability to gain access to the leased premises,

which they were “entitled to fully enjoy…, including access … through the front

door, without interference from [] Landlord.” Id. at 23. In support of their

argument, Tenants note that this Court has “consistently held that the

covenant of quiet enjoyment is breached not only if the landlord asserts

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possession and changes the locks, but merely interferes with access.” Id. at

22 (citing Pollock, 369 A.2d at 461). Moreover, Tenants contend that they

have “presented clear and convincing evidence that [] Landlord substantially

interfered with their possession of the leasehold[,] and[] that they abandoned

the leasehold after [] Landlord’s actions.” Id. at 27-28.

      Landlord acknowledges that he changed the locks during the term of

Tenants’ lease without giving them advanced notice; however, he maintains

that this act did not amount to a breach of the covenant of quiet enjoyment

or a constructive eviction, as he did not intend to lock out Tenants. Landlord’s

Brief at 6, 24. Landlord states that he was under the impression the prior

tenant had given Tenants keys to the back door and, thus, he thought they

would still have access to the premises. Id. at 23-24. After learning that

Tenants did not possess back door keys, Landlord testified that he would have

provided them with new keys had he been asked. TCO at 8.

      The trial court recognized that the parties’ lease was still in effect at the

time Landlord changed the front door locks and that, although he expected

Tenants to use the back door key to access the property, Tenants never

received the necessary keys. See id. at 3 (noting that “Landlord never gave

[the prior tenant] a key for the back door handle lock because he thought it

was broken, so Tenants could not have received one”). Despite these findings,

the trial court ruled in favor of Landlord, and reasoned: “Tenants were only

locked out because Landlord did not realize they did not have access through

the back door.    Tenants were not denied access.        All they had to do was

                                      -8-
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contact Landlord[,] and he would have provided them [with] new keys.” Id.

at 8. After careful review, we deem the trial court’s ruling in favor of Landlord

to be an error of law, as we determine that the record clearly supports the

finding of a breach of the covenant of quiet enjoyment and a constructive

eviction.

      Our Supreme Court has in-depthly examined the pertinent law of this

Commonwealth regarding violations of the covenant of quiet enjoyment and

as to what constitutes constructive eviction.

      “[I]t is settled in [Pennsylvania] that any wrongful act of the
      landlord which results in an interference of the tenant’s
      possession, in whole or in part, is an eviction for which the
      landlord is liable in damages to the tenant.” Kelly v. Miller, … 94
      A. 1055, 1056 ([Pa.] 1915)…. In Kelly, this Court held that the
      covenant was breached when the landowner closed several
      openings joining the leased premises, a theater, with other
      adjoining premises that were owned or otherwise leased by the
      tenant. The [C]ourt found that by obstructing access to the
      adjoining premises, which were not encompassed in the relevant
      lease, the landowner denied the tenant direct access to rooms
      necessary to the functioning of the theater such as storage rooms,
      dressing rooms, and bathrooms. We concluded that these actions
      interfered with the tenant’s possession of the leased premises
      even though they did not evict the tenant from the theater
      building covered by the lease.

      From Kelly, the Superior Court has concluded repeatedly that a
      breach of the covenant can be demonstrated through constructive
      eviction, if the tenant establishes that the utility of the premises
      has been substantially decreased. See Branish[ v. NHP Prop.
      Mgmt., Inc.], 694 A.2d 1106 [(Pa. Super. 1997)] (finding breach
      of covenant of quiet enjoyment where landowner threatened
      eviction if tenant’s boyfriend visited tenant at the property);
      Jonnet Dev. Corp. v. Dietrich Indus., Inc., … 463 A.2d 1026,
      1033 ([Pa. Super.] 1983) (noting that earlier cases required
      physical disposition or actual disturbance but that “the great
      weight of authority now is that a constructive eviction” will

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       suffice);[5] Checker Oil Co. of Del.[, Inc. v. Harold H. Hogg,
       Inc.], 380 A.2d [815,] 819 [(Pa. Super. 1977)] (holding
       landowner’s erection of guardrail blocking access from public
       highway to tenant’s gasoline station constituted breach of
       covenant of quiet enjoyment because the alteration deprived
       tenant of a “valuable feature of the plot” and “substantially
       reduced its utility”); Pollock…, … 369 A.2d [at] 458 … (collecting
       cases and finding breach of covenant where landowner erected
       mini-mall around formerly easily accessible dry-cleaning
       establishment because the structural alteration substantially
       decreased the utility of the property)….

Kohl v. PNC Bank Nat. Ass’n, 912 A.2d 237, 249 (Pa. 2006).

       The application of these principles is further illustrated in Kuriger v.

Cramer, 498 A.2d 1331 (Pa. Super. 1985), where the heating system in the

appellant’s mobile home rental operated erratically throughout the winter and

eventually broke down altogether. After the appellee failed to take action to

fix the heating system, the appellant withheld rent.        The appellee then

responded by shutting off heat and water to the mobile home. The Kuriger

Court opined that in such cases where “a landlord withholds heat, in breach

of a lease covenant, our courts have found a constructive eviction that gives

rise to an action for damages by the tenant.”        Id. at 1338.    The Court


____________________________________________


5 See also Weighley v. Muller, 1912 WL 4709, at *4 (Pa. Super. Jan. 1,
1912) (recognizing that the weight of authority no longer requires “physical
dispossession or actual disturbance in the possession of the tenant” to
constitute a breach of the covenant for quiet enjoyment; a constructive
eviction is sufficient); McSorley v. Allen, 1908 WL 3684, at *2 (Pa. Super.
Jan. 1, 1908) (“Physical expulsion is not … necessary to constitute an eviction.
Any act of a landlord which deprives his tenant of that beneficial enjoyment
of the premises to which he is entitled under a lease, will amount in law to an
eviction….”).



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concluded, however, that the theory of constructive eviction was not available

to the appellant in Kuriger, only because she remained in possession of the

property.    “However much the tenant may be disturbed in the beneficial

enjoyment of the premises by the landlord’s wrongful act, there is no

constructive eviction if he continues in possession of the whole of the

premises. Possession must be given up by the tenant in consequence of the

landlord’s acts[.]” Id. (internal quotation marks and citations omitted).

       Instantly, Tenants have clearly abandoned possession of the leasehold.

After discovering that the locks on the leasehold had been changed, Tenants

informed Landlord via certified letter that they considered the lease to be

terminated, and they returned all keys in their possession to him. Tenants’

Brief at 15-16. Moreover, after analyzing the relevant principles and case law,

we conclude that Landlord’s interference with Tenants’ enjoyment of the

leasehold was certainly substantial, as it not only limited or altered their

access to the premises, but completely deprived them of their means to enter

the leasehold.

       Additionally, we determine that the trial court erred in placing undue

emphasis on Landlord’s intention regarding the changing of the locks. 6 This

precise issue was addressed in Morley v. Morley, 424 A.2d 524 (Pa. Super.

____________________________________________


6 The trial court opined: “Landlord did not intentionally keep Tenants from
accessing the property, and [he] wanted to provide new keys as soon as he
learned Tenants were locked out…. Landlord’s changing the locks was not a
constructive eviction, since Tenants could have entered simply by contacting
Landlord for new keys.” TCO at 7.

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1981), where the appellant returned to her rental home after an extended

visit with an ill parent, only to find that the appellee had changed the locks.

The appellee originally testified that he only changed the locks “because the

old locking or latching mechanism … just disintegrated. The front door knob

came off in [his] hand[.]” Id. at 525. Later, the appellee admitted that “he

changed the locks on the front door to maintain his privacy, and, [he] had

continued to exclude the appellant from the jointly-owned residence….” Id.

at 525-26. On appeal, we concluded that the appellee’s act in changing the

lock on the dwelling, “for whatever reason” and his failure to provide the

appellant with a new key constituted a constructive eviction.      Id. at 526

(emphasis added).       Our decision in Morley was based on the appellee’s

actions and their effect on the appellant – not on the intent behind those

actions.

      Similarly, in the case at hand, we must look to Landlord’s actions and

their effect on Tenants, and not to Landlord’s intentions.      Regardless of

whether he intended to lock out Tenants, by changing the locks on the front

door, Landlord prevented Tenants from accessing the leasehold.      This Court

has consistently found constructive eviction where access to the premises was

merely altered or limited in such a way that the utility of the premises was

substantially decreased. Thus, we must certainly conclude that constructive

eviction has been established where, as here, Landlord’s actions completely

denied Tenants’ access to the property, and where Tenants abandoned the

premises as a result.

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       Given our determination that Landlord’s actions constituted a breach of

the covenant of quiet enjoyment and constructive eviction, we need not reach

the merits of Tenants’ claim regarding whether a breach of contract occurred.

Our disposition of Tenants’ first two claims renders this issue moot.

       Finally, we address Tenants’ claim regarding whether the trial court

erred in finding that they owe past due rent to Landlord, and that they are not

entitled to a refund of their security deposit.     The trial court opined that

Tenants’ obligation to pay rent was not terminated when Landlord changed

the locks and, thus, concluded that Tenants still owed rent for the months of

March through June of 2018. The court further indicated that Tenants were

not entitled to a refund of their security deposit, as the funds were being used

to offset the amount of rent owed to Landlord. TCO at 5-6. 7

       To the contrary, based on our finding of constructive eviction in the

instant matter, Tenants’ obligation to pay rent was clearly suspended. “If the

tenant is entitled to the beneficial enjoyment of the premises under the terms

of his lease, and if he is deprived of this by the act of the landlord, it amounts

to an eviction, and will suspend the rent….” Sears, 126 A.3d at 967 (quoting

Weighley, 1912 WL 4709, at *4) (emphasis added). See also Hoeveler v.

Fleming, 1879 WL 11614, at *2 (Pa. Oct. 15, 1879) (noting “that an eviction
____________________________________________


7The trial court noted that Tenants did not pay rent beyond February of 2018,
and that the lease extended through June 30, 2018. Id. It calculated that
Tenants owed a total of $9,760.00 for past due rent (4 months at
$2,440.00/month) less the escrow funds ($2,440.00 for the security deposit
and $2,440.00 for the prepaid last month’s rent), “resulting in an award of
$4[,]880[.00] to Landlord.” Id. at 6.

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of a tenant by the landlord of [the] demised premises suspends the rent”);

McCandless v. Findley, 1925 WL 5084, at *2 (Pa. Super. Jan. 1, 1925);

McSorley, supra.

      Not only did Landlord’s actions release Tenants from their obligation to

pay rent, but we note that Tenants may also be entitled to recover damages

from Landlord. It is well-settled in Pennsylvania that “any wrongful act of the

landlord which results in an interference of the tenant’s possession, in whole

or in part, is an eviction for which the landlord is liable in damages to the

tenant.” Pollock, 369 A.2d at 460 (citing Kelly, 94 A. at 1056) (emphasis

added).    “Recovery for breach of [the] covenant [of quiet enjoyment] has

been allowed in Pennsylvania where a landlord has evicted the tenant by

locking up the leased premises and denying the tenant access[.]” Id. (citing

Minnich v. Kauffman, 108 A. 597 (Pa. 1919); Stein v. McGinley, 186 A.

231 (Pa. Super. 1936)). “The general rule … is[] that the lessee may recover

… for all losses which he can prove he has actually sustained, or which he will

necessarily sustain, under the circumstances, as a result of the unlawful

eviction.” Id. at 462 (quoting Minnich, 108 A. at 598).

      Accordingly, we reverse the judgment in favor of Landlord, and we

remand this matter to the trial court for the purpose of determining the

amount of Tenants’ damages, if any, and to enter the same in judgment for

Tenants.

      Judgment reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2020




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