IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: A p peal o f Gressen Properties, : LLC :

: From Decision of City of Philadelphia : Commission on Human Relations :

: No. 349 C.D. 2023 Appeal of: Christopher Leidig : Submitt ed: April 11

, 2024

BEFORE: HONORABLE ANNE E. COVEY , Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: May 9, 2024

Christopher Leidig (Appellant) appeals from the Philadelphia County
Common Pleas Court’s (trial court) March 17, 2023 order reversing the City of
Philadelphia Commission on Human Relations ’ (PCHR ) decision that determined
that although Appellant did not establish a discrimination claim, Appellant did

establish a claim for two counts of retaliation

. Essentially, t he issue be fore this Court

is whether the trial c ourt err ed by reversing the contested portion of the PCHR’s

de c ision

. 1 After review, this Court affirms.

1 Appellant presente d five issues in his “Questions Involved:” (1) whether the trial court erred by substituting its own judgment for the PCHR’s judgment on the weight, credibility and relevance of the evidence; (2) whether the trial court erred by ruling that Appellant failed to name the correct respondent; (3) whether the trial court erred by ruling that it was logically i ncongruous that a complainant failed to prevail on an underlying discrimination claim, but still prevailed on a retaliation claim; (4) whether the trial court erred by ruling that the relief granted by the PCHR was not justified; and (5) whether the trial court erred by using the wrong standards when it
reviewed the case . Appellant Br. at 5. A ll of the iss ues are subsumed in the issue as stated by this
Court and will be addressed accordingly.2 On or about February 1, 2017, Appellant and his mother, Patricia L eidig

(Mother)

, signed a lease with Scott G ress e n (Gress e n) 2 to reside at a portion of

G r essen’s pr operty designated as first floor apartment, 448 Seville Street

, Philadelphia ( Apartment)

, as tenants (Lease)

. See Original Record (O.R.) at 275

-
2 78

. 3 On June 1, 2019, Gressen Properties, LLC (Gressen Properties) sent a notice

to all tenants that pursuant to C lause 13 of the Lease, 4 it amended the building rules
and added no vaping to the no smoking policy (June 1, 2019 Notice)

. 5 See O.R. at

301. On June 6, 2019, Appellant sent a picture of his medical marijuana card to

Gressen Pr o perties’ employee, Jo h nny , 6 and stated: “ Here is a pi cture of my legal
verification for marijuana I vaporize [.] [I] t is against the law to tell me I cannot take
my prescription [.] I will sue you if you try to kick us out for it [.] I do not smoke

m a riju [ a na]

. . . . ” 7 O.R. at 299. To which, Johnny responded: “You never stated
this on your application [,] and you are violating our [n] o [s] moking policy for the

2 Gress e n owns the property Appellant and Mother leased.

3 Because the pages in the original record are not numbered, the page numbers referenced
herein reflect electronic pagination.

4 Clause 13 of the Lease provided:
Building Rules

. Tenant will comply with the rules of the [b]uilding adopted and altered by [l]andlord from time to time and will cause all of its agents, employees, invitees [,] and visitors to do so; all changes to such rules will be sent by [l]andlord to [t]enant in writing

. The initial rules for the [b]uilding are attached hereto . . . and incorporated herein for all purposes.

O

. R. at 276.

5 The original no smoking policy prohibited smoking inside the apartments. The June 1, 2019 Notice provided: “Any violation of this rule will be cause for eviction.” O.R. at 301.

6 Johnny’s last name is not included in the original record.

7 The rest of the text is cut off.3

building. Vape or not. That’s the issue at hand. You were asked not to do it in the
building.” O.R. at 300.

O n June 14, 2019, Appellant sent a list of complaints regarding the
condition of his Apartment to Gressen Properties. On June 17, 2019, Gressen
Properties ’ man a ger Carrie Anne Sanford (Sanford) responded :

Thank you for bringing these items to our attention. Per our conversation earlier, Johnny will be by on Wednesday, June 19th around 1 [:00] p [.] m [.] to evaluate the items on the list.

The timing of which you chose to report these items is a little ironic since you have recently told us you will not be renewing your [L] ease after we reached out to you about violating the no smoking policy.

After discussing your complaint with [Gressen] , he has decided that we would [sic] let you out of your [L] ease early without penalty if you wish to do so. We want all of our tenants to be happy and [] satisfied. Please let me know what you decide []

.
O.R. at 308.

On June 18, 2019, Appellant emailed the following to Sanford at 12:39

p.m.:
I sent a picture to Johnny of my prescription and let him

know that I vaporize it and do not smoke there is no smoking clause on my [L] ease that I saw it my water [sic] looked over it and prove [sic] that I was right [.] I decided not to renew my [L] ease because he told me [,] but it does not matter and I should have let him know my medications prior to that which is highly illegal according to my [L] ease if I want to renew it I will let my landlord who is [Gressen] no [sic] not Johnny who is not the landlor d [.] I am not talking to Johnny anymore because he has violated my rights time and time again [sic] I ’ m in the right here4 and I ’ ve already set up legal aid and they also agreed that I ’ m not violating my [L] ease so I would appreciate it if you looked at my rights before you guys decided to violate them [.]

O.R. at 297. At 12:39 p.m., that same date, Appellant again emailed Sanford stating:

Find [sic] me that according to the Fair Housing Act [ 8 ] my prescriptions are my business and the fact that I gave you a copy of it after the fact and you guys are still coming at

me [,] I might just have to go to my lawyer again because this is blatant discrimination on my disabilities [.]

Id . Finally, at 12:53 p.m., that same date, Appellant emailed Sanford:

Here is once again another of my legal prescription [sic] from the Department of Health Pennsylvania and I am supposed to vaporize it indoors that [sic] the legal way to use it and that is the legal way that I do use it [.] I do not smoke it [,] it does not violate the smoking [c] lause that does not even exist and I would like the email sent to me have a copy of our signatures on the addendum on the [L] ease that says the non

- smoking [c] lause that we do not have [.]

Id

.
On June 21, 2019, as a result of complaints from neighboring tenant s

that marijuana smoke was infiltrating their apartment s , Counsel for Gressen

P roperties (Counsel) sent a notice to Appellant and M other regarding their violation

of the building rules and reiterating the new rule (June 21, 2019 Notice)

. 9 See O.R.

8 42 U.S.C. §§ 3601

- 3631.

9 The June 21, 2019 Notice reiterated : This rule goes into effect immediately. Any violation of this rule will be cause for eviction. This letter is also placing you on notice of your prior violation of the oral warning provided at the inception5

at 302

. O n June 27, 2019, Counsel sent a letter to Appellant and Mother notifying

them that their Le ase was terminated due to a violation of the building rules and
giving them 10 days to vacate the premises. See O.R. at 305. On or about July 16,
2019, Appellant filed a c omplaint with the PC HR alleging disability discrimination

. See O.R. at 522

- 525. On August 27, 2019, Counsel sent another letter to Appellant
and Mother notifying them that their Lease would not be renewed and instructing
them to vacate the premises

.

On September 9, 2019, Appellant filed a c omplaint with the Fair
Housing Commission (FHC)

. On December 3, 2019, after holding a hearing, the

FHC determined that the August 27, 2019 lease nonrenewal notice was not

reta liatory “as there were issues between the parties that preceded [the] letter fr o m
[landlord] to [t]enant [

, ]” and that the PC HR will address Appellant’s claim that the
no smoking policy is discriminatory and should be waived as an accommodation.

O.R. at 322. On December 5, 2019, Counsel sent a letter to Appellant and Mother
again notifying them that their L ease will not be renewed and instructing them to

“vacate on or before January 31, 2020.” O.R. at 496. On or about January 17 , 2020,
Appellant filed another c omplaint with the P CHR alleging disability discrimination

and retaliation. See O.R. at 526

- 528. Appellant vacated the premises on February

1, 2021, after his L ease term expired.

On May 14, 2021, the P C HR held a hearing. On October 21, 2021, the

P C HR determined that Appellant failed to establish a claim of disability

discrimination/failure to accommodate a disability under Section 9

- 110 8 of the

of your [L]ease. No further warnings shall issue in this regard.
Continued violation of this rule will be cause for eviction.

O.R. at 302

.6

Philadelphia Fair P ractice Ordinance (PFPO); 10 and that Gressen Properties violated

the PFPO by retaliating against Appellant for engaging in protected activities on two

occasions. 11 The P C HR directed Gressen Properties to: (1) pay a $2,000.00 penalty
for each retaliatory action; (2) reimburse Appellant for reasonable attorney’s fees

and costs; and (3) cease and desist engaging in retaliatory actions.

On October 27, 2021, Gressen Properties appealed to the trial court. On

March 17, 202 3 , the trial court reversed the contested portion of the P C HR’s

decision. On April 10, 202 3 , Appellant appealed to this Court. 12 On May 1, 202 3

, the trial court directed Appellant to file a Statement of Errors Complained of on

10 Philadelphia, PA, Code, §§ 9

- 1101

– 9

- 1133 (12th ed. 2020). The PFPO is not included in the original record but can be found at: https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0

- 0

- 0

- 278561 ( last
visited Ma y 8 , 2024 ). The PCHR incorrectly referenced Section 9

- 1103 of the PFPO, which prohibits unlawful employment practices

. See Philadelphia, PA, Code, § 9

- 1103. Section 9

- 110 8 of the PFPO prohibits unlawful housing and real property practices. See Philadelphia, PA, Code, § 9

- 1108.

11 Specifically, the P C HR determined that the two separate acts of retaliation were : (1) seeking to evict Appellant after Appellant filed claims with the PCHR and the FHC; and (2) seeking to evict Mother

. See O.R. at 533.

12 This Court has consistently held that our scope of review is limited
to a determination of whether the [PCHR’s] adjudication is in
accordance with law , constitutional rights have been violated or the findings of the [PCHR] are not supported by substantial evidence. Civil Serv [

. ] Comm [ ’n ] of Phila [

. ] v. Banks

, . . . 442 A.2d 41 ( [Pa. Cmwlth.] 1982). “Substantial evidence must be something more than a scintilla creating a mere suspicion of the existence of a fact, and must be such relevant evidence as a reasonable mind might consider adequate to support a conclusion.” Barnes v. Dep [ ’ t ] of
Just [

. ]

. . . , 452 A.2d 593, 595 ( [Pa. Cmwlth.] 1982).
City of Phila. Comm’n on Hum. Rels. v. Trs

. of Univ. of Pa.

, 496 A.2d 4 35, 436 (Pa. Cmwlth.
1 9 85).7

Appeal pursuant t o Pennsylvania Rule of Appellate P rocedure (Rule) 1925(b) (Rule

1 9 25(b) Statement ) . On May 19, 202 3 , Appellant filed his Rule 1925(b) Statement.

On August 1, 2023, the trial court filed a Notice of N o Supplemental Opinion

pursuant to R ule 1925(a).

Appellant argues that the trial court reweigh ed the evidence and the
credibility determinations , and substitute d its judgment for that of the P C HR

. Specifically, Appellant contends that t he trial court reassessed the facts, and then

arrived at the conclusion it would have had it been sitting as the fact

- finder. Gressen
Properties rejoins that t he trial c ourt did not substitute its own judgment for the

PCHR ’s judgment on the weight, credibility, and relevance of the evidence , but

rather it determined that the evidence could not support the PCHR’s finding s , and
that there was no explanation regarding why the award was entered against an

incorrect part y.

T he PCHR concluded , in relevant part :

8. [Appellant] did not present sufficient evidence to establish a failure to accommodate claim under the PFPO. While [Appellant] is unequivocally a qualified individual with a disability, he did not present sufficient evidence to show that [Gressen Propertie s’] building policies precluded him from being able to take his prescribed medication.

9. [Appellant] did establish a retaliation claim under [the] PFPO. In fact, [Appellant] established that [Gressen Properties] engaged in two separate acts of retaliation: (1) seeking to evict [Appellant] after [Appellant] filed claims with the PCHR and FHC [;] and (2) seeking to evict [Mother]. Clearly, [ Appellant ] engaged in the protected activity of filing complaints against [ Gressen Properties ] and [ Gressen Properties ] took adverse action against both [ Appellant ] and [ Mother ].8

O.R. at 532

- 533 (emphasis added).

Section 9

- 1108 (1) ( g ) of the PFPO provides that it shall be unlawful

[ f ] or any person to harass, threaten, harm, damage or otherwise penalize, retaliate or discriminate in any manner against any person because he , she or it has complied with the provisions of this Chapter, exercised his, her or its rights under this Chapter, en joyed the benefits of this Chapter, or made a charge , testified or assisted in any manner in any investigation, proceeding or hearing hereunder

. Philadelphia, PA, Code, § 9

- 1108 (1) (g) (emphasis added). “ PFPO claims are
generally evaluated under the same legal framework as Title VII claims. ” Darby v.
Temple Univ. , 216 F. Supp. 3 d 535, 543 ( E.D. Pa. 2016). “ [R] etaliation claims are
subject to the McDonnell Douglas burden

- shifting analysis. See Moore v. City of

Phila. , 461 F.3d 331, 342 (3d Cir. 2006) (applying the McDonnell Douglas [ Corp.

v. Green , 411 U.S. 792 (1973) ]

, framework to a Title VII retaliation claim) [.]”

Griswold v. Drexel Univ.

, ___ F.3d ___, ___ ( E.D. Pa., No. 22

- 0568, filed March 1,

2024 ) , slip. op. at 3.

U nder the P ennsylvania H uman R elations A ct
, 13

[a] prima facie case of retaliation requires [ Appellant ] to show that (i) [] he was engaged in a protected activity; (ii) [ Gressen Properties ] was aware of the protected activity; (iii) subsequent to participation in the protected activity [ Appellant ] was subjected to an adverse [] action; and (iv) there is a causal connection between participation in the protected activity and the adverse [] action. Robert Wholey Co [

. ] , Inc. v. [ Pa. ] Hum [

. ] [ Rels. ] Comm [ ’n ],

. . . 606 A.2d 982, 983 ( [Pa.] 1992). Upon showing a prima facie case, the burden shifts to [ Gressen Properties ] to articulate a l egitimate, non

- discriminatory reason for its

13 Act of October 27, 1955, P.L. 744, as amended , 43 P.S. §§ 951

- 963

.9 action. See McDonnell Douglas

. Finally, the burden shifts to [ Appellant ] to show that [ Gressen Properties’ ] proffered reasons are pretextual. Id

. Spanish Council of York, Inc. v. Pa. Hum. Rels. Comm ’ n , 879 A.2d 391, 399 (Pa. Cmwlth. 2005).

Jackson v. Pa. Hum. Rels. Comm’n

, 308 A.3d 900

, 907 (Pa. Cmwlth. 2024 ).

Here, the PCHR determined that Gressen Properties engaged in
retaliation based on nothing more than the fact that Appellant filed c omplaints with
the FHC and the PCHR, and sometime thereafter, Gressen Properties sent a second

notice of non

- renewal/notice to quit to Appellant and Mother. See O.R. at 531
(Finding s of Fact 13

- 15).

However , Mother was not a party to the c omplaint before the PCHR,

thus whether Gressen Properties sought to evict Mother is irrelevant to the issue of
retaliation. Further, and most significantly, the PCHR completely ignore d the fact

that, o n June 27, 2019, over two months before Appellant filed his c omplaints with

the FHC and the PCHR, Counsel sent a letter to Appellant and Mother notifying

them that their L ease was terminated due to a violation of the building rules and
giving them 10 days to vacate the premises. See O.R. at 305. Thus, there is no

causal connection between participation in the protected activity and the adverse

action . Moreover, the record is replete with evidence establishing that Gressen
Properties had a legitimate, non

- discriminatory r eason for its action , i.e., Appellant’s
violation of the no smoking policy.

Here, the trial court correctly stated its standard of review. Specifically,

the trial court describ ed:

Under Pennsylvania l aw, the trial court ’ s review of a local
agency ’ s determinations is analogous to that of an10 appellate court of a trial court ’ s legal ruling. Due deference is accorded to [the] agency ’ s fact

- finding determinations. Review is limited to determining whether the [ agency ] had committed an e rr or of l aw or a manifest abuse of discretion. Allegheny W. C [ ivic ] Council Inc. v. Zoning [ Bd. ] of Adjustment , 689 A.2d 225, 227 (Pa. 1997). 2 Pa.C.S. § 752. When, as in the instant case, no further evidence is introduced before the trial court

, “ review is limited to determining whether the [reviewing ] [a gency] committed an abuse of discretion or an error of l aw in rendering its decision. [The appellate court] may conclude that the [agency] abused its discretion only if its findings are not supported by substan tial evidence, which [courts] have defined as ‘ relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached .” Marshall v. City of Phila [

. ] , 97 A.3d 323, 331 (Pa. 2014).

Both Pennsylvania [c] ommon [l] aw and [r] ules of [a] dministrative [l] aw allow the trial court t o overturn an agency decision, only after “ determining whether there was a constitutional violation, an error of law, a failure by [the] local agency to comply with the statutes procedural provisions, or a material finding of fact that is unsupported by substantial evidence. ” Johnson v. Lansdale Borough

, . . . 146 A.3d 711 ( [Pa.] 2016) [;] 42 Pa.C.S. § 704. If the trial court does not affirm th e agency decision, the trial court may enter any order authorized by . . . [Section] 706 [of the Judicial Code , which ] authorizes the trial court to “ affirm, modify, vacate, set aside, or reverse any order brought before it for review and may remand the matter and direct the entry of such appropriate order

. . . . ” 42 Pa.C.S. [] § 706.

Trial Ct. Op. at 5

- 6.

Using this standard, the trial court determined , in relevant part : “ [T] he

PCHR ’ s fundamentally erroneous findings effectively undermined the resulting

decision. Substantial evidence did not support [ its ] determinations

. . . . Thus,11

reversal of the PCH R ’ s [o] rder of October 21, 2021 [,] is due

. ” Id

. at 7 (emphasis

added)

. This Court discerns no error in the trial court’s determination. 14

For all of the above reasons, the trial court’s order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge

14 Given this Court’s determination, t he issue of whether the PCHR entered its award against an incorrect party is moot.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

In re: Appeal o f Gressen Properties, : LLC :

: From Decision of City of Philadelphia : Commission on Human Relations :

: No. 349 C.D. 2023 Appeal of: Christopher Leidig :

O R D E R

AND NOW, this 9 th day of May , 20 2 4

, the Philadelphia County
Common Pleas Court’s March 17, 2023 order is affirmed.

___________________________ ______ ANNE E. COVEY, Judge