J-A26020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL FIUMARA,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

SUPPORTIVE HOUSING MANAGEMENT
SERVICES, INC.,

                         Appellant                   No. 2032 WDA 2015


              Appeal from the Order Entered December 4, 2015
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD-12-19281


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 12, 2016

      Appellant, Supportive Housing Management Services, Inc. (referred to

herein as “SHMS”), appeals from the trial court’s December 4, 2015 order

denying its motion for post-trial relief, granting Appellee’s, Carol Fiumara,

motion for post-trial relief, and awarding a new trial limited to the issue of

damages for SHMS’s breach of a lease agreement. For the reasons stated

herein, we affirm in part and reverse in part.

      The trial court set forth the facts and procedural history of this case as

follows:
            I presided over this Jury Trial from March 24, 2015 to
      March 27, 2015. It involved the claims of Breach of Contract
      and unlawful eviction by [Appellee] Carol Fiumara (Fiumara)
      against   [Appellant],  her   landlord,   Supportive Housing
      Management Services, Inc. (SHMS).

           After [the] close of testimony[,] I directed a verdict on the
      Breach of Contract claim but left the issue of damages for that
J-A26020-16


     breach to the jury. It found “zero” damages. I also submitted
     to the jury the question of whether SHMS had acted in an
     “outrageous fashion” against Fiumara. It found that it had.

           Based on that finding[,] I permitted Fiumara to then
     submit evidence in support of her punitive damage[s] claim.
     The jury returned a verdict of $13,000 in punitive damages plus
     attorney[’]s fees.

           SHMS filed a timely Motion for Post-Trial Relief relative to
     the punitive damage[s] and attorney’s fee[s] verdict[,] and
     [sought] Judgment Non Obstante Veridictu (N.O.V.). Fiumara
     thereafter filed a Motion for Post-Trial Relief contesting the
     award of “zero” damages….

           Both [a]ttorneys filed excellent and able [b]riefs in support
     of their contending positions.

           The [f]acts are relatively simple. SHMS is a federally
     subsidized housing facility for elderly low income residents.
     Fiumara was one such resident.

            SHMS provided reserved parking for its residents who had
     automobiles and Fiumara did have an automobile. It developed
     that an employee of SHMS, one Chip Kemmerer, while answering
     a call at the Dormont facility[,] parked his vehicle in Fiumara’s
     parking spot[,] which it continued to occupy when Fiumara
     returned to the site. She blocked his vehicle in and called the
     local police. The employee appeared shortly thereafter[,] as did
     Police Officer George Dailey. After a mildly heated exchange,
     Officer Dailey declined to issue a citation to Mr. Kemmerer, had
     Fiumara move her car and let Mr. Kemmerer go on to his next
     assignment.

            The next day[,] the [m]anager of SHMS[,] Gloria
     Knowlson, summoned Fiumara to her office and told her she was
     being evicted because of her behavior in the parking lot and
     blocking [in of] Mr. Kemmerer….         She followed this verbal
     eviction with a letter that was received as Plaintiff’s Exhibit 9.

           Fiumara, believing that she [was] being evicted and that
     protest would be futile, complied with Ms. Knowlson’s directive.

           Fiumara was unable to immediately find subsidized
     housing and was forced to take an apartment with her son. As a
     result[,] she was forced to expend more money than [she had]


                                    -2-
J-A26020-16


      previously while a tenant of SHMS. She testified that all of her
      marital pension money plus money borrowed from her children
      was necessary to reside at this new apartment. Later, in 2013,
      she was able to acquire subsidized housing comparable to that of
      SHMS. … [H]er out-of-pocket costs were tabulated in Plaintiff’s
      Exhibits 12 and 13.

             In defense, SHMS acknowledged that it was subject to
      government regulation establishing the basis and protocol for
      eviction. It argued[,] however[,] that because Fiumara left
      willingly after being told to leave and did not require a judicial
      landlord-tenant proceeding[,] that she had not been “evicted.” I
      was not persuaded by this argument.

            The applicable regulations here establish that eviction can
      occur only after a tenant commits a second offense. As [U.S.
      Department of Housing and Urban Development]-subsidized
      housing, federal law restricts the … landlord’s ability to terminate
      leases and remove tenants.         Specifically, except for non-
      payment of rent, dangerous conduct, or criminal activity, the
      landlord is precluded from terminating a tenant’s lease for
      “cause” unless: “… the landlord has given the tenant prior notice
      that said conduct shall henceforth constitute a basis for
      termination of occupancy.” See 24 C.F.R. § 247.3.

Trial Court Opinion (TCO), 12/4/2015, at 1-3.

      Based on the trial court’s findings of fact and legal conclusions, it

issued an order denying SHMS’s motion for post-trial relief, granting Ms.

Fiumara’s motion for post-trial relief, and awarding a new trial limited to the

issue of damages for breach of contract. SHMS timely appealed, and raises

two issues for our review:
         1. Whether the trial court erred by allowing an award of
            punitive damages, plus attorney’s fees, for a breach of
            contract, when the sole tort claim pled by Ms. Fiumara was
            earlier dismissed, and there was no contractual or
            statutory basis for an award of attorney’s fees.

         2. Whether the trial court erred in awarding Ms. Fiumara a
            new trial limited to the issue of damages for SHMS’s
            breach of Ms. Fiumara’s lease, when the jury’s finding of

                                     -3-
J-A26020-16


           $0 in compensatory damages was fully supported by the
           record, including by Ms. Fiumara’s failure to establish any
           specific amount that she paid as a result of SHMS’s
           conduct, and by Ms. Fiumara’s failure to mitigate her
           damages, and in no way the result of some improper
           influence.

SHMS’s Brief at 4.

     First, we examine SHMS’s claim that the punitive damages award was

made in error and should be vacated.     See SHMS’s Brief at 18, 21.     We

apply the following standard of review when assessing a trial court’s denial

of a request for judgment notwithstanding the verdict:
     [T]he standard of review for an order granting or denying
     judgment notwithstanding the verdict is whether there was
     sufficient competent evidence to sustain the verdict. We must
     view the evidence in the light most favorable to the verdict
     winner and give him or her the benefit of every reasonable
     inference arising therefrom while rejecting all unfavorable
     testimony and inferences. Furthermore, judgment nov should be
     entered only in a clear case, where the evidence is such that no
     reasonable minds could disagree that the moving party is
     entitled to relief. Review of the denial of judgment nov has two
     parts, one factual and one legal:

        Concerning any questions of law, our scope of review is
        plenary. Concerning questions of credibility and weight
        accorded evidence at trial, we will not substitute our
        judgment for that of the finder of fact.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.

Super. 2008) (citation omitted).

     Specifically, SHMS asserts that “[i]t is axiomatic that punitive damages

cannot be awarded for a breach of contract.    It does not matter how the

breach of contract is categorized. The bottom line is that … the defendant

must first be found liable for some tort before punitive damages can be


                                   -4-
J-A26020-16



awarded.” SHMS’s Brief at 18 (citations omitted). According to SHMS, “Ms.

Fiumara’s sole tort claim — for intentional infliction of emotional distress —

was correctly thrown out after she failed to introduce the requisite ‘expert

medical testimony’ to support her claim. At that point, Ms. Fiumara’s case

was reduced to one for breach of contract, and punitive damages should

have been off the table.” Id. at 19-20 (citations omitted).1 We agree.

       This Court has previously stated that “[t]he law is clear that punitive

damages are not recoverable in an action for breach of contract.” Thorsen

v. Iron and Glass Bank, 476 A.2d 928, 932 (Pa. Super. 1984) (citations

omitted).    See also G.J.D. by G.J.D. v. Johnson, 713 A.2d 1127, 1129

(Pa. 1998) (“Punitive damages may be imposed for torts that are committed

willfully, maliciously, or so carelessly as to indicate wanton disregard of the

rights of the party injured.”) (citation and internal quotations omitted);

DiGregorio v. Keystone Health Plan East, 840 A.2d 361, 370 (Pa. Super.

2003) (“It is settled law that one cannot recover punitive damages

independently from an underlying cause of action. … Even if the cause of

____________________________________________


1
  As the trial court acknowledged, SHMS argued that Ms. Fiumara’s claim for
intentional infliction of emotional distress required “medical proof of such
distress[,]” and that “[t]here was no such medical evidence here[.]” TCO at
4. Indeed, “our Supreme Court clearly articulated … that, to the extent the
tort of [intentional infliction of emotional distress] is recognized in this
Commonwealth, recovery is limited to those cases in which competent
medical evidence of emotional distress is presented by the claimant.” Gray
v. Huntzinger, -- A.3d --, 2016 WL 4533781, at *5 (Pa. Super. 2016)
(citations omitted).



                                           -5-
J-A26020-16



action for breach of contract had not been resolved, [the a]ppellants could

not recover punitive damages for an action solely sounding in breach of

contract.”) (citations omitted).           Moreover, the trial court apparently

dismissed Ms. Fiumara’s intentional infliction of emotional distress claim, so

punitive damages could not be premised on that tort.2

       Despite dismissing Ms. Fiumara’s tort claim for intentional infliction of

emotional distress, the trial court reasoned that it could still award punitive

damages because “the [f]acts herein show a ‘wrongful eviction’ by SHMS,

which is a tort, and as a result the award of punitive and exemplary

damages is appropriate.” TCO at 4. Ms. Fiumara likewise contends that she

“pled and proved that she was wrongfully and illegally evicted,” which

thereby permits an award of punitive damages. See Ms. Fiumara’s Brief at

13 (capitalization omitted).3
____________________________________________


2
  See note 1, cited supra. SHMS also points out that “[n]either counsel
addressed the claim for intentional infliction of emotional distress during
closing argument; the jury was never instructed on the elements of that
claim; and the resulting verdict forms did not include a question regarding
such a claim.” SHMS’s Brief at 6 n.3. See also Ms. Fiumara’s Brief at 8-9
(acknowledging that the claim of intentional infliction of emotional distress
was not submitted to the jury).
3
  Ms. Fiumara seems to argue that the facts established at trial support
recovery for the tort of wrongful eviction and, as such, SHMS is liable for
that tort. However, she provides no authority to support that she was not
required to distinctly raise her wrongful eviction tort claim at trial.
Additionally, we note that the parties dispute whether the tort of wrongful
eviction was even properly pled by Ms. Fiumara. See Ms. Fiumara’s Brief at
17-18; SHMS’s Reply Brief at 2-3. Because we dispose of this matter on
other grounds, we need not determine that issue herein.



                                           -6-
J-A26020-16



       Yet, liability for the tort of wrongful eviction was never raised at trial,

let alone proven.       Rather, the trial court and the parties all agree that,

following the jury trial, SHMS was found liable for breach of contract and

acting in an outrageous fashion against Ms. Fiumara. TCO at 1 (“After close

of testimony[,] I directed a verdict on the Breach of Contract claim but left

the issue of damages for that breach to the jury. … I also submitted to the

jury the question of whether SHMS had acted in an ‘outrageous fashion’

against Fiumara. It found that it had.”); SHMS’s Brief at 7 (“After closing

arguments, the trial court issued specific instructions regarding the amount

of   damages      for   a   breach    of   contract,   as   well   as   ‘the   issue   of

outrageous[ness].’”); Ms. Fiumara’s Brief at 9 (“The jury awarded ‘zero’

damages for breach of contract but answered ‘yes’ that [SHMS’s] conduct

was ‘outrageous[.’]”). Significantly, no directed verdict was entered, nor did

the jury find, SHMS liable for the tort of wrongful eviction.4
____________________________________________


4
  It is well-established that the breach of contract and wrongful eviction are
distinct actions; accordingly, they are not synonymous or interchangeable,
even though they may arise from the same set of operative facts. See
Kuriger v. Cramer, 498 A.2d 1331, 1338 (Pa. Super. 1985) (“An eviction is
an act by a landlord or a third person that interferes with a tenant's
possessory right to the demised premises. If that act is wrongful, the tenant
may sue for damages in trespass or assumpsit.”) (citations omitted). We
note that, under our Rules of Civil Procedure, “[i]f a transaction or
occurrence gives rise to more than one cause of action heretofore asserted
in assumpsit and trespass, against the same person, including causes of
action in the alternative, they shall be joined in separate counts in the action
against any such person.” See Pa.R.C.P. 1020(d). While this rule permits
separate counts to be asserted in one complaint, it does not make those
separate counts one and the same.



                                           -7-
J-A26020-16



       Moreover, when the trial court inquired about the allegations at issue

in Ms. Fiumara’s case at trial, her counsel did not raise a claim for the tort of

wrongful eviction:
       [Trial Court]: Now, your allegations are what? Your counts are
       what?

       [Ms. Fiumara’s Counsel]: My count is breach of contract for the
       monetary damages….

            And in addition, a count for intentional infliction of
       emotional distress.

             There was a separate count added for punitive damages,
       but as Your Honor said, that’s not dealt with in this manner, so I
       have two counts.

N.T. Jury Trial, 3/23/2015, at 386-87.5

       Because Ms. Fiumara did not establish liability for — or even raise —

the tort of wrongful eviction at trial, it could not be the basis for punitive

damages here.6 See, e.g., McShea v. City of Philadelphia, 995 A.2d 334,

____________________________________________


5
  Similarly, when SHMS asserted at trial that punitive damages must arise
from a tort, Ms. Fiumara did not make any mention of the tort of wrongful
eviction in order to support such damages. N.T. Jury Trial, 3/26/2015, at
421-22.
6
  We are also not persuaded by Ms. Fiumara’s argument that the punitive
damages award must stand in this case because “Pennsylvania law
recognizes a claim for punitive damages where a landlord acts with malice
and oppression in evicting its tenant….” Ms. Fiumara’s Brief at 20. Upon
reviewing the cases proffered by Ms. Fiumara in support of this assertion, we
concur with SHMS that these “cases merely hold that a dispossessed tenant
may recover punitive damages in a tort (or trespass) action against the
landlord.” SHMS’s Reply Brief at 2-3, n.2. However, as stated above, Ms.
Fiumara did not raise a claim for the tort of wrongful eviction or trespass at
trial.



                                           -8-
J-A26020-16



340 n.5 (Pa. 2010) (“Punitive damages are awarded in tort actions, not for

breach of contract.”) (citation omitted); DeLuca v. Fidelity Bank, 422 A.2d

1159, 1161 (Pa. Super. 1980) (“No punitive damages can be recovered on a

breach of contract claim.”) (citation omitted).   See also Hilbert v. Roth,

149 A.2d 648, 652 (Pa. 1959) (“The right to punitive damages is a mere

incident to a cause of action … and not the subject of an action in itself.

Hence, since plaintiff no longer has a cause of action of which his claim for

punitive damages may be an element, that claim must fail.”). Accordingly,

we reverse and vacate the trial court’s award of punitive damages, including

the award of attorney’s fees.7

       Second, we consider whether the trial court erred in awarding Ms.

Fiumara a new trial limited to the issue of damages for breach of contract.

SHMS argues that “the jury’s $0 finding was fully supported by the record

evidence, including the lack of any concrete evidence of the expenses Ms.

Fiumara actually paid as a result of her move, and Ms. Fiumara’s failure to

mitigate her damages[.]” SHMS’s Brief at 17. Moreover, SHMS claims that

____________________________________________


7
  The jury added attorney’s fees onto its assessment of punitive damages.
See Ms. Fiumara’s Brief at 10 (“After further deliberations, the jury returned
a verdict awarding $13,000 punitive damages ‘plus additional legal fees
incurred by [Ms. Fiumara].’”); SHMS’s Brief at 22 (“As there was no basis for
such an instruction or the resulting award (and as the award was essentially
the fruit of the poisoned punitive damages tree), the award of ‘legal costs’
should also be vacated.”). Because we reverse and vacate the punitive
damages award, we also reverse and vacate the award of attorney’s fees
included therein.



                                           -9-
J-A26020-16



“there was no indication that the jury’s $0 finding was the product of some

improper motivation” and the trial judge purportedly “did not explain, in any

detail, how or why that $0 finding ‘shocked’ his conscience.” Id.

      “It is settled that the grant or denial of a new trial rests in the

discretion of the trial court.” Livelsberger v. Kreider, 743 A.2d 494, 495

(Pa. Super. 1999) (citation omitted).         This Court has explained that “in

reviewing an order to grant a new trial our standard of review is limited to

determining whether the trial court abused its discretion or committed an

error of law.” Id. (citations omitted). “A trial court may only grant a new

trial when the jury’s verdict is so contrary to the evidence that it ‘shocks

one’s sense of justice.’” Id. (citations omitted).

      Our Supreme Court has further explained:
             An appellate court by its nature stands on a different plane
      than a trial court. Whereas a trial court's decision to grant or
      deny a new trial is aided by an on-the-scene evaluation of the
      evidence, an appellate court's review rests solely upon a cold
      record. Because of this disparity in vantage points an appellate
      court is not empowered to merely substitute its opinion
      concerning the weight of the evidence for that of the trial judge.
      Rather our court has consistently held that appellate review of
      the trial court's grant of a new trial is to focus on whether the
      trial judge has palpably abused his discretion, as opposed to
      whether the appellate court can find support in the record for the
      jury's verdict. In that regard the Superior Court must review a
      trial court's decision to grant a new trial in the same manner as
      we have required review of the denial of a new trial.

            In reviewing the entire record to determine the propriety
      of a new trial, an appellate court must first determine whether
      the trial judge's reasons and factual basis can be supported.
      Unless there are facts and inferences of record that disclose a
      palpable abuse of discretion, the trial judge's reasons should
      prevail. It is not the place of an appellate court to invade the

                                     - 10 -
J-A26020-16


      trial judge's discretion any more than a trial judge may invade
      the province of a jury, unless both or either have palpably
      abused their function.

             To determine whether a trial court's decision constituted a
      palpable abuse of discretion, an appellate court must “examine
      the record and assess the weight of the evidence; not, however,
      as the trial judge, to determine whether the preponderance of
      the evidence opposes the verdict, but rather to determine
      whether the court below in so finding plainly exceeded the limits
      of judicial discretion and invaded the exclusive domain of the
      jury.” Where the record adequately supports the trial court, the
      trial court has acted within the limits of its judicial discretion.

Thompson v. City of Philadelphia, 493 A.2d 669, 672-73 (Pa. 1985)

(citations omitted).

      Here, the trial court observed:
             The real basis of Fiumara’s Motion is the fact that the jury
      awarded “zero” damages. The defense argued that the money
      advanced by Fiumara’s children were “gifts” and there[fore] no
      damages should be awarded. Obviously, Fiumara was forced to
      expend all of her monthly income to stay in her new lodging and
      that was not enough![] The children had to come to the rescue.
      Whether there were gifts or not is unclear and in any event the
      wrongful eviction causes economic harm to Fiumara. The exact
      amount and the question of gift vel non can be addressed in the
      new trial. It is clear to me that Fiumara suffered some loss and
      this is sufficient for my action herein. Further, my conscience is
      shocked by the impecunious nature of this verdict.

TCO at 3-4 (emphasis in original).

      We cannot conclude that the trial court palpably abused its discretion

in granting a new trial pertaining to the issue of damages for breach of

contract.   We agree with the trial court that it is clear that Ms. Fiumara

suffered some loss as a result of the breach.      SHMS’s arguments to the

contrary are specious. SHMS first argues that “Ms. Fiumara did not testify

that she incurred a set sum of expenses as a result of her move.” SHMS’s

                                     - 11 -
J-A26020-16



Brief at 24. It states that “[a]lthough [the Dwight Avenue] apartment … was

more expensive than Dormont Place, Ms. Fiumara’s children paid a

significant percentage of the increased rent and utility costs, as well as her

moving and storage costs, and she never paid them back.” Id. at 14. To

the extent she relied on her children to help cover her increased expenses, it

is confounding to us — given the present record — to characterize their

support as a “gift” and thereby conclude that Ms. Fiumara suffered no

economic loss as a result of her move.       While there is testimony that Ms.

Fiumara had not yet paid her children back, SHMS cites no evidence that

their assistance was a mere gift that need not be repaid. If anything, Ms.

Fiumara’s testimony establishes the opposite:
      [Ms. Fiumara’s counsel]: [] Were you able to pay for that?

      [Ms. Fiumara]: No.

      [Ms. Fiumara’s counsel]: Was that something that you had to
      borrow money from your children for?

      [Ms. Fiumara]: Yes. I borrowed a lot.

N.T. Jury Trial, 3/24/2015, at 135 (emphasis added).
      [Ms. Fiumara’s counsel]: Your children paid some of them?

      [Ms. Fiumara]: Subsidized a lot of income.

      [Ms. Fiumara’s counsel]: Do you have to pay your children
      back?

      [Ms. Fiumara]: Yes.

      [Ms. Fiumara’s counsel]: Do your children expect to be paid
      back?

      [Ms. Fiumara]: I would like to. Well, they don’t have a lot
      of money so.

                                    - 12 -
J-A26020-16



Id. at 146 (emphasis added).

      Thus, our review of the present record does not demonstrate that the

trial court exceeded the limits of its judicial discretion in awarding a new trial

as there is no basis to find that the financial assistance of Ms. Fiumara’s

children was given with no expectation of repayment.

      Second, SHMS insists that “the jury had a substantial basis to find that

Ms. Fiumara failed to mitigate her damages.”              SHMS’s Brief at 24.

Specifically, it contends that “[b]y not discussing the Notice [of termination

of the lease] or her proposed termination with Ms. Knowlson (the Dormont

Place Property Manager), or anyone else from SHMS, and not forcing SHMS

to file an eviction proceeding, Ms. Fiumara wasted two, early opportunities

to avoid a move in the first place.” Id. at 25. We find this argument to be

illogical. As the trial court observed, Ms. Fiumara left because she was told

to leave. See TCO at 3. If the jury actually awarded zero damages due to

a failure to mitigate, it would surely shock our conscience as well, as Ms.

Fiumara was simply following Ms. Knowlson’s command. As such, SHMS has

not persuaded us that the trial court abused its discretion by awarding a new

trial on this basis as well.

      To summarize, we affirm the trial court’s order awarding a new trial

limited to the issue of damages for SHMS’s breach of a lease agreement, and

reverse and vacate the trial court’s award of punitive damages, including the

award of attorney’s fees.




                                     - 13 -
J-A26020-16



     Order affirmed in part and reversed in part.     Remand for further

proceedings consistent with this memorandum. Jurisdiction relinquished.

     Judge Musmanno joins this memorandum

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2016




                                  - 14 -
