J

- A07042

- 21

2021 PA Super 84

PCS CHADAGA

v.

AMANDA TORRES AND LUIS TORRES

- USECHI

APPEAL OF: AMANDA TORRES :

:

:

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1018 MDA 2020

Appeal from the Order Entered July 16, 2020 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2017

- CV

- 05480

- DJ

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E. *

OPINION BY STEVENS, P.J.E.: FILED MAY 04, 2021

Appellant Amanda Torres appeals from the Order entered in the Court

of Common Pleas of Dauphin County on July 16, 2020, granting Appellee PCS

Chadaga possession of a rental premises following Appellee’s filing of a

l a ndlord/tenant complaint. 1 We affirm.

The trial court set s forth the procedural history herein as follows:

[Appellee] commenced this landlord

- tenant action by Complaint filed September 14, 2017, following [Appellant’s] appeal of judgment in [Appellee’s] favor before the magisterial district court. [Appell ee ] all eges that [Appellant ] [is] in breach of a rental agreement for property at 35 Oak Knoll Estates, a mobile

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 Appellant previously was married to Luis Torres

- Usechi who had been named as a defendant in the Complaint. The two are now divorced, and Mr. Torres

Usechi no longer lives on these premises and is not involved in this appeal. Brief for Appellant at 4. Thus, we refer to Appellant in the singular throughout this Opinion.J

- A07042

- 21

- 2

-

home community, by [her] frequent delinquencies in rent and failure to pay any rent since July 2017. (Complaint, para. 1

- 7). [Appellee] further alleges that [Appellant] breached the terms of the rental agreement by harassing a neighboring tenant, allowing [her] dog to foul another tenant's property, failing to maintain the exterior of [her] mobile home, failing to maintain exterior landscaping, a nd allowing accumulation of debris. (Id., para. 9

- 14), [Appellant] filed an Answer with New Matter on October 5, 2017, to which [Appellee] filed an Answer on March 18, 2019. During the pendency of the litigation, [Appellant] made monthly deposits of escrow funds in accordance with Dauphin County Local Magisterial District Justice Rule 1008B.I [Appellee] periodically filed motions for release of funds. On March 26, 2019, following compulsory arbitration, arbitrators found in favor of [Appellee] in the amoun t of $5001.00 and granted possession of the property to [Appellee]

. [Appellant] appealed. [Appellant] continued to deposit escrow funds, which the Court released to [Appellee] upon motion. On June 10, 2020, we conducted a bench trial. We announced our ruli ng in favor of [Appellee]
, and the reasons therefore, at the close of testimony. On June 30, 2020; we entered a written order award [ing] [Appellee] the sum of $6,222.80, which included attorneys' fees. On July 16, 2020, we ordered: Inasmuch as [Appellee’s] Complaint seeks possession of the premises and judgment having been granted in [Appellee’s] favor on June 10, 2020, [Appellee’s] demand for possession is GRANTED. (Order, July 16, 2020).

On August 3, 2020 [Appellant] f il ed a Notice of Appeal which stated:

AND NOW, this day of August 2020 comes [Appellant] , by [her] attorneys Richard K. Konkel, Esquire and CGA Law Firm, and give this Notice of Appeal to [the] Superior Court of Pennsylvania, appealing the Honorable John F. Cherry's Order of Court entered July 16, 2020, granting [Appellee’s] demand for possession because no evictions are being permitted to go forward at this time due to CO VI D

- 19. Copy of Order is attached

.
( [Appellant’s] Notice of Appeal, August 3, 2020).

Pursuant to our order to so, [Appellant] filed a Concise Statement of Matters Complained of on Appeal on October 9, 2020. [Appellant] asserted that orde rs of the PennsylvaniaJ

- A07042

- 21

- 3

-

Supreme Court an d Pennsylvania Governor Thomas Wolf apply to th e within action to prohibit eviction of [Appellant]

. As stated above, we set forth our findings of fact, reasoning, and conclusions of law in open court at the conclusion of the bench trial, specifically finding the grounds for grant of possession in favor of [Appellee]

. Those reasons render [Appellant’s] claims on appeal meritless.

___

1 Dauphin County Local Rule of Magisterial District Court Rule 10081 B , Landlord and Tenant Appeals provides:

In cases where the tenant in possession of real property desires to appeal from a judgment f o r the possession of said entered by a Magisterial District Judge of the court and does not desire to or is unable to file a bond with surety as required by Pa.R.C.P.D.J. 1008B, such tenant, upon application to and approv al by the Court, may be permitted to deposit rental payments corning due during the proceedings in the Court of Common Pleas in an escrow account in a bank or trust company approved by the Court. No withdrawals shall be permitted from any such escrow

accou nt except pursuant to court order. At the conclusion of the proceedings, such deposits shall be applied to the payment of any judgment (Including costs) against the tenant rendered on appeal,

Trial Court Opinion, filed 11/4/20, at 1

- 3.

At the conclusio n o f the bench tri al, the trial court stated the following on

the record:

Well, I've listened to the evidence and these things are never pleasant because [Appellant] is a decent, hard

- working woman. She's owned the home since 2008. She admitted that she 's in violation. She needs to replac e the porch and repair the skirting and that she's been payin g rent into escrow. She also admitted that she was given notice to get rid of the dog and obviously she didn't comply. Of course, those are very hard things to do. Nonetheless, there is a history here of nonpayment. And the balance due is $6,222.80, roughly 2,400 of that attorneyJ

- A07042

- 21

- 4

-

fees, which brings us to around 3,800 in past due rent and that's for a long period of time. These and other issues involving the prop erty, particularly payment problem since 2013 but particularly now it appears to be $3,800 in rent for that lot due and

– which would amount to around three years of rent with attorney fees of $2,399.50. I find for [Appellee] in the amount of $6,222.80. As I indicated, the attorney fees are included in that fee, Thank you.

N.T. Bench Trial, 6/10/20, at 33

- 34. 2

In her brief, Appellant presents the following question for this Court’s

review:

Whether the [t] rial [c] ourt erred by granting possession of the premises at issue by its Order dated July 16, 2020, when an Executive Order of the Governor of Commonwealth of Pennsylvania was in effect which extended the evictions and foreclosures moratorium through August 31, 2020, and that the Governor's Executive O rder applied to the Landlord/Tenant Act of 1951 and the Manufactured Home Community Rights Act, which is the Act under which the present case was brought?
Brief for Appellant at 3.

Before we determine the merits of this issue, we first consider whether

Appellant has preserved it for appellate review.

To preserve a claim of error for appellate review , a party must make a

specific objection to the alleged error before the trial court in a timely fashio n

_________________ __________ ______ ____ _______

2 In its Rule 1925(a) Opinion, after finding no merit to Appellant’s appeal, the trial court stresse d Appellant’s failure to request a transcript of the Bench Trial and include it in the certified record as required by Pa.R.A.P. 1911 impeded its ability to consider any issues Appellant raised on appeal and, therefore, render e d them waived. See Trial Court Opinion, filed 11/4/20, at 3

- 4

. However, Appellant filed a supplemental record con taining the transcripts of the proceeding and corresponding exhibits on December 24, 2020, and provided this Court with those documents for our review

.J

- A07042

- 21

- 5

-

and at the appropriate stage of the proceedings; failure to raise such objection

results in waiver of the underlying issue on appeal. Commonwealth v. May
,
584 Pa. 640, 887 A.2d 750 (2005), cert. denied , 549 U.S. 832, 127 S.Ct. 58,

166 L.Ed.2d 54 (2006) ( reiterating absence of specific and contemporaneous

objection to error waives issue on appeal); Commonwealth v. Arroyo , 555

Pa. 125, 723 A.2d 162 (1999) (explaining if ground upon which objection is

based is specifically stated, all other reasons for its exclusion are waived).

Additionally, “the law is clear that issues , even those of constitutional

dimension, are waived if not raised in the trial court. A new and different

theory of relief may not be successfully advanced for the first time on appeal.”

Co mmonwealth v. Cline , 177 A.3d 922, 927 (Pa.Super. 2017), appeal

denied , 646 Pa. 735, 187 A.3d 210 (2018); Pa.R.A.P. 302(a).

At the outset of the Ju n e 10, 2020, bench trial , trial counsel and the trial

court engaged in the following exchange :

Attorney Konkel: Your Honor, I do have a motion to make preliminarily, oral motion. Your Honor, m aking a motion to stay this proceeding based on the governor’s order staying all evictions, foreclosures, and such actions until July the 11 th

. THE COURT: Well, this [c] ourt has an administrative order that as of June 1 st , any landlord/tenant actions were to continue

– were to begin. And so based on your motion

— and there is a Supreme Court order May 11 th indicating that all landlord/tenant actions may proceed

— so based on all that, your motion is denied. Attorney Konkel: Thank you.

N.T. Bench Trial 6/10/20, at 3

- 4.

As the foregoing evinces, while Appellant initially requested a stay of

the proceeding based on Governor Wolf’s E xecutive O rder, she neitherJ

- A07042

- 21

- 6

-

specified the basis upon which she deemed that O rder applied to the within

matter nor did she object to the trial court’s explanation of its decision to

continue with the proceeding. Therefore, in light of the foregoing, we find

Appellant's failure to object in a timely and specific manner to the trial court’s

decision to continue with the landlord/tenant action she now challenges,

coupled with h er acquiescence in the trial court’s explanation for its decision

to proceed, has resulted in h er waiver of the issue raised on appeal.

Notwithstanding, even if we were to deem Appellant’s claim properly

preserved for our review, it would afford h er no relief. In 2020, Governor Wolf

issued consecutive E xecutive O rders , pursuant to his emergency powers under

the Emergency Code, that bar red landlords from evicting residential tenants

for defaulting on their rent obligations or overstaying the terms of their

residential leases until further notice

. See Order of the Governor of the

Commonwealth of Pennsylvania for Staying the Notice Requirements for

Certain Actions Related to the Dispossession of Property (May 7, 2020),

https://www.governor.pa.gov/wp

- content/upolads/ 2020/05/2020057

- TWW

dispossession

- of

- property

- order.pdf; Order of the Governor of the

Commonwealth of Pennsylvania Staying Notice Requirements for Specified

Actions Related to the Dispossession of Property (July 9, 2020),

https://www.governor.pa.gov/wp

- content/uploads/2020/07/20200709TWW

eviction

- order.pd f

.

Section 4 of th e July Order , e ntitled “Scope of Order
, ” specifically

provides in relevant part that:J

- A07042

- 21

- 7

-

The provisions of this Order and the suspen s ion of the Acts under this Order apply only to matters involving the nonpayment of monies as well as to those proceedings re lated to the removal of any tenant solely because the tenant has held over or exceeded the term of a lease

. The Order does not apply to suspend notice requirements relating to evictions for breaches of any other covenants.

See id

.

Herein, Appellant’s eviction for maintenance violations and possession

of a dog pertain to breaches of covenants other than rent payment . In

addition, the se violations predated and were in no way caused by the

pandemic . Therefore, Appellant’s position on appeal that her ev iction was

prohibited by Govern o r Wolf ’s E xecutive O rder s d oes no t present an

appealable issue under the plain terms thereof . Appellant does not advance

any other viable theory of re c o v ery. Instead, she asks this Court to interpret

the Governor’s O rder s in a manner which would be clearly inconsistent with

their stated terms and purpose.

As such, absent waiver, Appellant’s issue would lack merit. In light of

all of the foregoing, we affirm the trial court’s July 16, 2020, Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/04/2021