J-A13037-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

ERMALEA LAZARUS,

 Appellee

 v.

DOUGH NATION PIZZA, LLC

AND MATTHEW GRANT HOLLEY,

 Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2061 EDA 2018

Appeal from the Order Entered June 26, 2018

in the Court of Common Pleas of Bucks County

Civil Division at No(s): 2015-02879-0072

BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 27, 2019

Dough Nation Pizza, LLC and Matthew Grant Holley (collectively, Tenant) 

appeal the verdict of $39,481.87, entered on June 26, 2018, against Tenant

and in favor of Ermalea Lazarus1 (Landlord) following a non-jury trial. We 

affirm.

The dispute arises from a commercial lease entered into between the 

parties on May 19, 2013 (Lease). The trial court set forth the factual and 

procedural history as follows.

Tenant and Landlord entered into [the Lease] for a commercial 

pizza restaurant located at 7 East Bridge Street, New Hope 

Borough, Bucks County, Pennsylvania [(Property)]. The Lease 

was for a term of [5] years. Rent was due on the first day of each 

month.5

 

1 Ermalea Lazarus’s son and power of attorney, Arthur Lazarus, has always 

acted, and continues to act, on behalf of his mother in this case. See Trial 

Court Opinion, 10/3/2018, at 1 n.1.
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______

5 Rent for the first year was $30,000 annually (or $2,500 

monthly) and was to increase by three percent (3%) yearly. 

Tenant had a grace period of five (5) days from the first of 

the month to pay rent and then would be charged a late fee 

of five percent (5%). Tenant was responsible for 

maintaining and repairing the Property, including the 

heating and air conditioning equipment; Landlord was 

responsible for replacement of systems in the Property.

The Lease allowed Landlord to terminate the Lease or 

receive accelerated rent if Tenant failed to pay rent within [10]

days of it being due.6

______

6 ... [Among others, a]nother event of default under the 

Lease was: “abandonment, vacation or desertion of the 

[Property] or suspension of business at the [Property] for 

more than ten consecutive (10) days.” [Lease, 5/19/2013, 

at ¶ 13(a)(3).]

***

[] Right of Access to the Alley

During the first year of the Lease, Tenant kept trash in an 

alley [(Alley)] between the Property and a neighbor, C.L. Lindsay’s 

[(Neighbor)] property. The Neighbor owned the Alley and it was 

not a part of the Property. Beginning in May [] 2014, Neighbor 

did not want Tenant to keep trash in the Alley anymore. Neighbor 

eventually locked the gate to the Alley with a chain and lock, 

preventing Tenant from using it to store its trash.

Tenant began keeping its trash out front of the Property. On 

September 4, 2014, [New Hope] Borough sent a letter [to 

Landlord and Tenant] that Tenant’s trash was violating Borough 

Codes.18 On September 10, [2014,] the Borough [] followed up 

with an official Notice of Violation of a New Hope Borough Code.19

______

18 In 2004[,] the Property had been approved for a special 

exception use as a retail food shop. Approval of that special 

exception was based on a lease with Neighbor which granted 

access to the Alley as a place to store trash cans. The letter 
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advised Tenant and Landlord that, “[i]f for some reason, the 

adjacent alley leasing arrangement is no longer available, 

alternative arrangements for solid waste storage must be 

immediately developed.” [N.T., 10/31/2017, at Tenant’s 

Exh. 4 (Letter, 9/4/2014, at 1).]

19 The Notice of Violation listed as a description of the 

corrective action required, “... you are hereby directed to 

provide daily municipal waste collection service or other 

remedy suitable to the Borough to resolve the violations 

cited herein.” [N.T., 10/31/2017, at Tenant’s Exh. 4 (Notice 

of Violation, 9/10/2014, at 2).]

Based on the imminent threat of fines, Tenant decided to 

store trash inside the Property. This led to rats inside the 

Property. Tenant called an exterminator who inspected the 

Property on September 11, 2014.22 Tenant was closed for 

business for two or three days because of the rats. 

______

22 According to Tenant, the exterminators could do nothing 

without access to the Alley, where they would have to put 

rat traps in order to exterminate them properly.

On September 13, 2014, a fire occurred in the Alley.24 There 

was no interior damage to the Property, but firefighters “burst 

through” the Property’s front door to search for a back exit to get 

to the locked Alley.25 [After the fire,] Landlord secured the 

doorway with plywood and a padlock and left the key with a 

neighboring tenant for Tenant to retrieve. [Tenant’s business] 

was not open for business again after that time.

______

24 The fire was caused by a short[] of exposed electrical 

wires on the roof of the Property. [Tenant’s business] was 

closed at the time of the fire.

25 Once inside the Property, firefighters discovered there 

was no back exit to the Alley.

[] Dough Nation’s Late Rent Payments and Magisterial 

District Court Action
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During the above-mentioned events, Tenant began 

remitting rent payments late. On February 27, 2014, Landlord 

filed a landlord-tenant complaint in a Bucks County magisterial 

district court. Landlord withdrew that complaint [without 

prejudice] after Tenant provided checks to catch up on rent. On 

May 7, 2014[,] Landlord re-filed the complaint after one of the 

checks bounced.

On May 19, 2014, Landlord and Tenant appeared for a 

landlord-tenant complaint hearing.32 The parties entered into an 

agreement where an order of possession against Tenant would be 

pending in the magisterial district court. As long as Tenant paid 

its rent on time, Landlord would not execute said order.

______

32 Tenant brought a check for $5,750[,] to satisfy the rent 

through May [2014].

Tenant did not pay June’s rent on time.35 On July 11, 2014,

Tenant submitted a payment of $5,000[,] for June and July

[2014]’s rent.36 [The rent for] August 2014[,] was not paid until 

September 4, 2014.37

______

35 Landlord’s attorney sent Tenant a letter stating that 

Landlord would take appropriate steps to execute upon the 

pending order for possession if payment was not received 

promptly.

36 June and July [2014]’s rent check was not the accurate 

amount under the Lease as the monthly rent increased by 

three percent after May 2014.

37 August [2014]’s rent was for the inaccurate amount of 

[$2,500] instead of [$2,575], the appropriate amount under 

the Lease. Tenant never paid any late rent charges for these 

late payments as was required under the Lease.

Based on the fact that Tenant did not open for business after 

the September 13[, 2014] fire and lack of further rent payment, 

Landlord moved to evict Tenant by instating the pending order for 

possession. The magisterial judge signed the order for possession 

in favor of Landlord on September 17, 2014.
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Once Tenant removed all of its equipment, Landlord began 

renovating the Property.40 In April 2015, Landlord located a new 

tenant for the Property who moved in shortly after. 

______

40 Landlord testified that there was a lot of damage[,] 

including rot under the floor from water dripping.

On April 15, 2015, Tenant [filed] a complaint against 

Landlord for breach of the Lease, breach of the implied covenant 

of quiet enjoyment, and fraud. On May 11, 2015, Landlord filed 

an answer with new matter and a counterclaim against Tenant for 

breach of [the] Lease.

On November 18, 2016, Landlord filed a motion for 

summary judgment. On February 6, 2017, Tenant filed a counter 

motion for summary judgment. The [trial court] denied and 

dismissed both motions for summary judgment.

On October 31, 2017, this matter proceeded to a [2] day 

non-jury trial. The [trial] court heard testimony from: (1) [] 

Holley; (2) Ronald Edwin Holley, Tenant’s expert on [its] averred 

business losses; and (3) Arthur Lazarus.

During the trial, the [trial] court granted Landlord’s motion 

for nonsuit on Tenant’s [fraud claim] based on a lack of 

evidence.... Additionally, the [trial] court dismissed Tenant’s claim 

for breach of the implied covenant of quiet enjoyment because 

Tenant did not establish the elements to satisfy a prima facie case.

On January 8, 2018, the [trial] court issued a verdict. The 

court awarded Landlord $39,481.87. 

On January 29, 2018, Tenant filed a motion for post trial 

relief[, which the trial court denied on May 17, 2018]....46

______

46 On January 31, 2018, Landlord filed a praecipe to enter 

judgment on the January 8, 2018 verdict and the 

prothonotary’s office entered the January 8, 2018 

judgment. On February 19, 2018, Tenant filed a motion to 

strike the premature entry of judgment[,] which the [trial] 

court granted on May 17, 2018.
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On June 26, 2018, the [trial] court re-issued the verdict 

against Tenant and for Landlord, awarding Landlord $39,481.87 

for rent due under the remainder of the lease less the amount 

Landlord was paid by the new tenant in possession of the Property.

Trial Court Opinion, 10/3/2018, at 1-7 (capitalization and party designation 

altered; citations to the record and some footnotes omitted).

This timely-filed appeal followed. Both Tenant and the trial court 

complied with Pa.R.A.P. 1925.2

On appeal, Tenant sets forth two questions for our review.

A. Whether the trial court erred by not enforcing the parties’ lease 

by its terms and the implied covenant of quiet enjoyment[.]

B. Whether the covenant of quiet enjoyment is breached first by 

loss of a necessary condition to operation of premises granted 

and then eviction.

Tenant’s Brief at 3-4.

We apply the following standard of review to a nonjury trial verdict.

Our appellate role in cases arising from nonjury 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 

 

2 We note that on July 17, 2018, the trial court ordered Tenant to file its 

statement pursuant to Pa.R.A.P. 1925(b) within 21 days. Tenant did not 

comply, filing its statement on August 10, 2018. However, “where the trial 

court addresses the issues raised in an untimely Rule 1925(b) statement, we 

need not remand but may address the issues on their merits.” 

Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016), citing

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (“[I]f there 

has been an untimely filing, this Court may decide the appeal on the merits if 

the trial court had adequate opportunity to prepare an opinion addressing the 

issues being raised on appeal.”). Instantly, the trial court’s Rule 1925(a) 

opinion addresses the issues Tenant raises on appeal. See Trial Court 

Opinion, 10/3/2018, at 11-12. Accordingly, we will address the issues on their 

merits.
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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 in the record or if its findings are premised 

on an error of law. However, [where] the issue ... concerns a 

question of law, our scope of review is plenary.

The trial court’s conclusions of law on appeal originating 

from a non-jury trial are not binding on an appellate court because 

it is the appellate court’s duty to determine if the trial court 

correctly applied the law to the facts of the case.

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 Ctr. Assoc., L.P., 181 A.3d 1188, 

1191-92 (Pa. Super. 2018) (citations and quotation marks omitted).

In the case before us, Tenant argues that Landlord breached the terms 

of the lease and the covenant of quiet enjoyment because the Property was 

not fit for use as a restaurant once Tenant no longer had access to the Alley 

adjacent to the Property to store trash. Tenant’s Brief at 16-29. Tenant claims 

that Landlord’s failure to maintain a lease to the Alley or provide some 

alternate arrangement substantially interfered with his enjoyment of the 

Property. Id. at 24-25.

“[A] lease is in the nature of a contract and is to be controlled by 

principles of contract law. The interpretation of any contract is a question of 
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law and this Court’s scope of review is plenary.” Gamesa Energy USA, LLC,

181 A.3d at 1192 (citations omitted).

In addition, we set forth the following principles relating to the implied 

covenant of quiet enjoyment.

There is an implied covenant of quiet enjoyment in every lease of 

real property. The covenant is between lessor and lessee. It is 

breached when the lessee’s possession is impaired either by acts 

of the lessor or those acting under the lessor or by the actions of 

a holder of a superior title. Any “wrongful act” of the lessor that 

interferes with the lessee’s possession, in whole or in part, is a 

breach of the covenant of quiet enjoyment.

Lichtenfels v. Bridgeview Coal Co., 531 A.2d 22, 25 (Pa. Super. 1987) 

(citations omitted).

Tenant relies on various boilerplate subsections of the Lease to support 

his argument that Landlord was in breach thereof. See Tenant’s Brief at 19-

22. Our review of the Lease does not reveal any reference to the Alley, nor 

does it contain any reference to any other lease or agreement between 

Landlord and Neighbor, or any other third party, relating to the Alley. Thus, 

we do not find any merit to Tenant’s argument that Landlord was in breach of 

any express provision in the Lease.

Further, we agree with the trial court that Tenant’s claim for breach of 

the covenant of quiet enjoyment fails because there was no wrongful act by 

Landlord. See Trial Court Opinion, 10/3/2018, at 11-12. As noted supra, the 

Neighbor owned the Alley and is the one who locked it and prevented Tenant’s 

access. Id. at 12. The Lease did not provide Tenant access to the Alley, and 
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Landlord did not represent to Tenant that the Alley was part of the Property. 

Because Tenant’s claim is based upon the conduct of a neighboring property 

owner, not Landlord, it cannot form the basis for a claim of breach of quiet 

enjoyment. See Lichtenfels, 531 A.2d at 25. 

Moreover, Tenant’s access to the Alley was restricted by the Neighbor 

in spring of 2014. However, Tenant did not notify Landlord at that time of any 

issue relating to trash storage, despite two magisterial district court 

proceedings brought by Landlord to collect late rent payments. Instead, 

Tenant waited until September 2014, to notify Landlord, which was after 

Tenant had received a letter from the borough and a notice of violation for 

improper trash storage. As the borough’s notice so informed, Tenant had an 

alternative for trash disposal: daily municipal waste collection.

3

 Tenant failed 

to make any such arrangement.

Additionally, the record demonstrates and Tenant admits that from 

nearly the outset of the Lease, Tenant was repeatedly in breach for failing to 

pay rent in full and on time. See Tenant’s Brief at 9. As noted supra, after 

Landlord filed a second complaint seeking possession of the Property, the 

parties agreed at the second magisterial district court hearing in May 2014,

that the court would issue a judgment of possession, but Landlord would not 

take action on it as long as Tenant paid rent and otherwise complied with the 

 

3

In addition, borough regulations permitted indoor storage of trash if certain 

conditions were met. 
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terms of the Lease. Thereafter, Tenant failed to pay rent on time for June, 

July, and August 2014, and failed to pay September 2014 rent at all. Tenant’s 

failure to pay rent was unrelated to the Alley issue. Tenant testified that he 

failed to pay rent due to cash flow problems or accounting errors on his end. 

N.T., 10/31/2017, at 80-81. Tenant’s claim that the restricted Alley access 

was a breach of the Lease and his quiet enjoyment of the Property strikes us 

as a belated attempt to justify his breach by late and unpaid rent. The fact 

remains that Tenant had the option of daily trash pick-up and chose not to 

make those arrangements.

For the foregoing reasons, we affirm the trial court’s June 26, 2018 order 

entering judgment in favor of Landlord.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/27/19