J-S21016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BCJ MANAGEMENT, L.P.

Appellant

v.

LEEA RUSSELL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 957 WDA 2017

Appeal from the Order Entered May 30, 2017

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): LT-17-000323

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED MAY 08, 2018

BCJ Management, L.P. (Appellant) appeals from the order sustaining the 

preliminary objections of Appellee, Leea Russell (Russell), and dismissing 

Appellant’s eviction complaint with prejudice. We affirm.

Appellant is a property management firm. On October 22, 2014, 

Appellant and Russell executed a public housing agency (PHA) lease

agreement for Russell to lease an apartment at 100 Jamal Place, Pittsburgh, 

Pennsylvania, 15213. The apartment is part of the Oak Hill Apartments 

housing community (the Premises). Pursuant to Section 9(K)(2) of the lease, 

Russell agreed to not engage in “[a]ny criminal activity that threatens the 

health, safety, or right to peaceful enjoyment of the Premises by members of 

the Household, Guests, other Tenants or employees of [Appellant] or persons 

residing in the immediate vicinity of the Premises.” Lease Agreement at 10, 
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Ex. to Appellant’s Complaint (emphasis added). If Russell failed to comply 

with this provision, it “shall be considered a material breach of the Lease and 

cause for eviction.” Id. at 9. Additionally, Section 20A(b) of the lease sets 

forth conduct that would result in immediate eviction, including “criminal 

activity that threatens the health, safety, or right to peaceful enjoyment of 

the premises by other residents, employees of [Appellant], or persons residing 

in the immediate vicinity of the premises.” Id. at 19 (emphasis added). 

Pertinently, the lease does not define “the immediate vicinity of the Premises.”

On October 16, 2016, Appellant was arrested and charged with simple 

assault and terroristic threats as a result of an incident that occurred in a 

courtyard outside of an apartment at 2523 Chauncey Drive, Pittsburgh, PA 

15219, located in the Bedford Dwellings housing community, approximately 

1.2 miles from the Premises. The complaining witness, Darcetta Epps, told 

police that Russell punched Ms. Epps’ face several times, drew a small black 

handgun from her pocket, pointed it at Ms. Epps’ face, and screamed “I’m 

going to kill you!”

1

 According to Russell, the terroristic threats charge was 

withdrawn, and she was found not guilty on the remaining charges — two 

counts of simple assault. Russell’s Brief at 5 n.2, citing Commonwealth v. 

Russell, CP-02-CR-0012827-2016 (Allegheny Co.).

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1 City of Pittsburgh Bureau of Police Investigative Report, 10/16/16, at 1-2, 

Ex. to Appellant’s Complaint. Ms. Epps lived at Bedford Dwellings, and also

told police that on the previous evening, she and Russell had an altercation to 

which police responded.
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On January 31, 2017, Appellant filed an eviction complaint in the 

Magisterial District Court. The court found in Russell’s favor, and Appellant 

appealed to the Court of Common Pleas, filing a complaint on March 30, 2017. 

The complaint averred: the Premises are “located within a larger community 

commonly known as Oak Hill;” the courtyard where the alleged assault 

occurred is “located within the housing project known as Bedford Dwellings;”

and the Premises and the courtyard “are within three (3) to four (4) minutes 

driving distance . . . and therefore . . . Epps is a person residing in the 

immediate vicinity of the Premises.” Appellant’s Complaint, 3/30/17, at ¶¶ 3, 

12, 14. The complaint further asserted that Appellant’s alleged assault was a 

breach of Sections 9(K)(2) and 20A(b) of the lease and thus eviction was 

justified.

Russell, represented by counsel, filed preliminary objections, arguing 

that Appellant’s complaint was legally deficient because the alleged criminal 

activity did not occur in, nor involve a resident from, the “immediate vicinity”

of the Premises. Russell pointed out that Bedford Dwellings is located more 

than one mile from the Premises, and that the two locations have different zip 

codes and are separated by a third neighborhood, Middle Hill, as well as 

undeveloped woods. Appellant filed an answer stating, for the first time, that 

the Premises and Bedford Dwellings “are both located within the Hill District, 

a community that is represented primarily by one (1) member of Pittsburgh 

City Council and one (1) member of Allegheny County Council.” Appellant’s 
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Answer to Preliminary Objections, 5/8/17, at ¶ 4.

On May 31, 2017, the trial court sustained Russell’s preliminary 

objections and dismissed Appellant’s complaint with prejudice. The court took 

judicial notice of an online Google map2 showing that, depending on the route, 

the driving distance between the Premises and the location of the alleged 

assault was 1.2 to 1.6 miles and the walking distance was 1.1 to 1.5 miles. 

Trial Court Opinion, 10/12/17, at 3 n.1. The court held that these distances 

were sufficient to support a determination that, as a matter of law, the alleged 

crime did not occur “within the immediate vicinity of the premises.” Id. at 3. 

The trial court thus concluded “that it was clear that [Appellant] would be 

unable to prove facts sufficient to establish its right to relief.” Id. We note 

that in support, the court cited Powell v. Hous. Auth., 760 A.2d 473 (Pa. 

Cmwlth. 2000) (“Powell I”), rev’d, 812 A.2d 1201 (Pa. 2002) (“Powell II”), 

in which the trial court upheld the administrative agency’s factual finding that, 

pursuant to the term “immediate vicinity” in Section 8 of the United States 

Housing Act, 42 U.S.C. § 1437f, the location of a crime 0.8 miles from the 

Section 8 tenant’s residence was not in the residence’s “immediate vicinity.”3 

The court also relied on Hous. Auth. of City of Pittsburgh v. Mitchell, 2014 

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2 https://www.google.com/maps/dir/100+Jamal+PI,+Pittsburgh,+PA+15213

/2523+Chauncey+Dr,+Pittsburgh,+PA+15219/@40.4514855,-79.9754054,1

7z/data=!3m1!4b1!4m8!4m7!1m0!1m5!1m1!1s0x8834f3d03a7bc6c7:0x881

762a80e736ae7!2m2!1d-79.9732167!2d40.4514855.

3 We discuss Powell I and Powell II, infra, at pages 8 - 9.
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Pa. Dist. & Cnty. Dec. LEXIS 5022, which cited Powell I and held that criminal 

activity that occurred more than 1.5 miles from the tenant’s residence was 

not in the immediate vicinity of the residence.

Appellant timely appealed and complied with the court’s order to file a 

Pa.R.A.P. 1925(b) statement of errors. It presents one issue for our review:

Whether the Trial Court committed an error of law and/or abused 

its discretion by sustaining the Preliminary Objections of Russell 

and dismissing [Appellant’s] Complaint without permitting 

[Appellant’s] claims to proceed to a factual hearing for the purpose 

of determining (a) the appropriate definition of the neighborhood 

relevant to [Appellant’s] claims and (b) whether Russell’s criminal 

activity occurred within the immediate vicinity of her residential 

dwelling unit and the housing community wherein such unit is 

located?

Appellant’s Brief at 3.

Appellant first cites the Oxford Dictionary definition of “neighborhood” 

as “a district, especially one forming a community, within a town or city.” Id.

at 11-12. Appellant maintains the term “neighborhood” is not limited by 

definition of a certain distance, and reiterates that the Premises and Bedford 

Dwellings are both located within Pittsburgh’s Hill District. Next, Appellant 

reasons that the trial court’s reliance on Powell I and Mitchell was misplaced 

because in those cases, the trial court reached its decision after a factual 

record was made. Appellant thus concludes that the trial court’s ruling was 

manifestly unreasonable because there was no factual inquiry, and requests 

remand for a hearing to determine whether the Premises and Bedford 

Dwellings “are located within the same neighborhood.” Id. at 13-14.
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This Court has stated:

A preliminary objection in the nature of a demurrer is properly 

granted where the contested pleading is legally insufficient. 

“Preliminary objections in the nature of a demurrer require the 

court to resolve the issues solely on the basis of the pleadings; no 

testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by the 

demurrer.” All material facts set forth in the pleading and all 

inferences reasonably deducible therefrom must be admitted as 

true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. The impetus 

of our inquiry is to determine the legal sufficiency of the 

complaint and whether the pleading would permit recovery 

if ultimately proven. This Court will reverse the trial court’s 

decision regarding preliminary objections only where there 

has been an error of law or abuse of discretion. When 

sustaining the trial court’s ruling will result in the denial of 

claim or a dismissal of suit, preliminary objections will be 

sustained only where the case i[s] free and clear of doubt.

Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa. Super. 2012)

(citations omitted).

“When terms in a contract are not defined, we must construe the 

words in accordance with their natural, plain, and ordinary 

meaning.” As the parties have the right to make their own 

contract, we will not modify the plain meaning of the words under 

the guise of interpretation or give the language a construction in 

conflict with the accepted meaning of the language used.

Profit Wize Mktg. v. Wiest, 812 A.2d 1270, 1274-75 (Pa. 2002) (citations 

omitted).

Appellant’s complaint in eviction is based on an alleged breach of

contract: that Russell breached clauses in the lease prohibiting her from 
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perpetrating criminal activity that threatens the health, safety, or right to 

peaceful enjoyment of others residing in the “immediate vicinity” of the 

Premises. However, as stated above, the term “immediate vicinity” is not

defined in the lease. Rather than addressing the plain meaning of the terms 

“immediate” and “vicinity,” however, Appellant argues that this Court — and 

the trial court — should consider whether the Premises and Bedford Dwellings

are in the same “neighborhood.” Appellant’s Brief at 11-12, citing

https://en.oxforddictionaries.com/definition/us/neighborhood. However, as 

Russell points out, Appellant wholly ignores the word “immediate.” See

Russell’s Brief at 13 (Appellant’s interpretation “would render superfluous the 

key modifier ‘immediate’”).4

While Appellant’s complaint characterized the Premises as located 

“within a larger community commonly known as Oak Hill,” the only support 

for Appellant’s claim that the two locations were in the same “immediate 

vicinity” were statements that they are a three to four-minute drive apart and 

that they are both in the Hill District. See Appellant’s Complaint at ¶ 14; 

Appellant’s Answer to Preliminary Objections at ¶ 4. Accordingly, we hold that 

the trial court did not err in finding these statements insufficient to establish 

that the alleged assault occurred in the “immediate vicinity” of the Premises. 

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4 Appellant’s source defines immediate as “nearest or next to in space.” See

https://en.oxforddictionaries.com/definition/us/immediate. 
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Therefore, the court did not abuse its discretion or commit an error of law in 

sustaining Russell’s preliminary objections and dismissing Appellant’s 

complaint with prejudice. See Weiley, 51 A.3d at 208.

Finally, because the trial court and both parties rely on the 

Commonwealth Court’s decision in Powell I, we note that Powell I may be 

distinguished because, while that decision addressed the term “immediate 

vicinity” as it appears in federal Section 8 and HUD regulations, Appellant’s 

issue presents a question of contract interpretation.5 Further, the claim raised 

in Powell I — and not reached in Powell II on mootness grounds — was that 

the trial court, on statutory appeal from an administrative agency’s decision, 

erred in disregarding factual findings made by the agency’s hearing officer. 

Powell I, 760 A.2d at 483. The Commonwealth Court resolved this issue by

holding that it was a question of law to be properly decided by the trial court. 

Id.; see Powell II, 812 A.2d at 1208 n.9 (“Where, as here, a complete record 

was developed before the local agency, the court reviewing the matter on 

appeal must affirm the local agency unless it is determined that constitutional 

rights were violated, that an error of law was committed, that the procedure 

before the agency was contrary to the statute or that necessary findings of 

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5 While the lease terms at issue in this case are based on Section 8 provisions, 

Appellant has made no mention before the trial court or in its appellate brief 

that its lease with Russell involved PHA assistance. See Lease Agreement at 

1 (title of lease is “OAK HILL LEASE AGREEMENT, (PHA-Assisted Unit)”).
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fact were unsupported by substantial evidence.”). Here, there was no agency 

decision and corresponding appeal to the Court of Common Pleas. Instead, 

Appellant filed a landlord/tenant eviction complaint in the Magisterial District 

Court, and subsequently, on appeal, a complaint in the Court of Common 

Pleas.6 Nonetheless, in the instant case, Powell I is instructive where the 

record supports the trial court’s determination that “the alleged crime at issue 

occurred at a location that was not within the immediate vicinity of the 

[P]remises.” Trial Court Opinion, 10/12/17, at 3.

In sum, we hold the trial court did not abuse its discretion or err in 

sustaining Russell’s preliminary objections and dismissing Appellant’s 

complaint with prejudice.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8 /2018

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6 We also decline to consider the Court of Common Pleas’ decision in Mitchell, 

2014 Pa. Dist. & Cnty. Dec. LEXIS 5022. See Sysco Corp. v. FW 

Chocolatier, LLC, 85 A.3d 515, 520 n.2 (Pa. Super. 2014) (“It is well-settled 

that Court of Common Pleas decisions ‘are not binding precedent for this 

Court.’”).