G & G INVESTORS, LLC v. PHILLIPS SIMMONS REAL ESTATE HOLDINGS, LLC
No. 2732 EDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED APRIL 04, 2018
2018 PA Super 80
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
Appeal from the Order Entered July 18, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): February Term, 2016 No. 1599
Appellant, G & G Investors, LLC, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying Appellant‘s petition for a conservator of real property owned by Appellee, Phillips Simmons Real Estate Holdings, LLC 1262 Point Breeze Avenue Philadelphia, PA 19146 OPA/BRT: 871167750. We affirm.
The relevant facts and procedural history of this case are as follows. Appellee owns an unoccupied building in Philadelphia, Pennsylvania (“Property“). On February 10, 2016, Appellant filed a petition pursuant to the Abandoned and Blighted Property Conservatorship Act,
On July 13, 2016, the court conducted a proceeding, at which both parties gave opening statements and presented testimony and other evidence, including photographs of the Property. The trial court opinion summarized the hearing as follows.
[Appellant] first offered testimony from David Feldman who was qualified as an expert as a realtor licensed in Pennsylvania and as a licensed architect. Mr. Feldman testified that he inspected the exterior of the Property and found certain deficiencies such as the building‘s “brick work appears to be pulling away from the building” ([N.T. Hearing, 7/13/16, at] 21); the boarded second-floor window was installed improperly, resulting in “a very large opening for [both] birds to get in and rain” ([Id. at] 25); looking through the windows of the first floor he saw debris and mouse or rat droppings. ([Id. at] 26-27). Mr. Feldman later qualified his testimony, stating he was not certain that what he saw were animal droppings. ([Id. at] 41). The photos of the Property presented by [Appellant] and identified by Mr. Feldman did not reflect an exterior of an “abandoned and blighted” property.
Lastly, Mr. Feldman testified that the condition of the Property has a negative effect on neighbors. By his own admission, Mr. Feldman drew his conclusion based on “generalities” and did not speak to any neighbors on the block or the surrounding area. ([Id. at] 31). He did not testify as to the specific effect the alleged conditions of this Property had on the surrounding neighborhood, such as reduction in value, or inability to obtain insurance.
[Appellant]‘s second witness was Mariano Mattei. Mr. Mattei‘s father owns [real property] located next to and abutting the Property at issue. His property is being renovated for use as a pizza shop but was not in operation as of the hearing. Mr. Mattei testified that [he] believed his property sustained water damage due to the conditions of the Property in question. However, when asked “what facts do you have to establish that the water you‘re testifying to today comes from [the Property]“, Mr. Mattei admitted, “I have no facts.” ([Id. at] 56). ...
[Appellant]‘s third witness was Anthony Gioielli, co-owner of [Appellant]. Mr. Gioielli testified that he‘d seen the back door to the Property unsecured. ([Id. at] 62). Although Mr. Gioielli identified a photo of the back door which appeared to be open1, Mr. Mattei stated he never saw the back door open as it was in the photo. ([Id. at] 53). [Mr. Gioielli] further testified that he had seen people throw trash into the gated front entrance ([Id. at] 63), however none of the photos offered into evidence by [Appellant] reflected trash in the area in question. The front of the Property appeared secured with gates covering large glass display windows. Th[e Property] appeared to be a corner commercial [p]roperty with glass display windows on both sides of the corner front entrance. Finally, Mr. Gioielli admitted that he had approached [Appellee] prior to filing this action and offered to buy the Property. ([Id. at] 68). Mr. Gioielli testified that he owned
properties in [the] area, he was an investor that “flipped” properties and that this Property had affected his investment properties. He was not specific as to how these properties were affected.
[Appellee]‘s first witness was Lionel Simmons, co-owner of [Appellee]. Mr. Simmons testified that [in] 2009 he obtained a permit from the City of Philadelphia to make repairs on the Property and started work on new stairs, and repair and replacements of joists. ([Id. at] 76). He admitted that at some point he stopped work due [to] a legal dispute that arose with a co-owner which could have clouded the title. Mr. Simmons testified that currently the Property is “gutted out“, with the electric and plumbing removed. ([Id. at] 77). [Appellee] introduced photographs of the interior to show the status of the Property renovations and were consistent with [Mr. Simmons‘] description that the Property had been “gutted out.” ...
[Appellee]‘s second witness was Christopher Sample, chief of staff to District Councilmember Kenyatta Johnson. Mr. Sample confirmed that the Councilman‘s office had not received any complaints about the Property, which is located in his district.
At the conclusion of testimony, [Appellee] moved to dismiss the action due to [Appellant]‘s failure to satisfy the requirements of [Section] 1105 of [Act 135]. [Appellant] requested that the court first allow an interior inspection of the Property pursuant to [its] Petition to Inspect. The court denied [Appellant]‘s request and granted [Appellee]‘s oral [m]otion to dismiss or deny the [p]etition.
(Trial Court Opinion, filed December 28, 2016, at 2-4, unpaginated).
On July 14, 2016, the court issued an order denying Appellant‘s amended petition, with notice to the parties on July 18, 2016. Appellant filed no post-trial motion. Appellant did file a timely notice of appeal on August 17, 2016. The court ordered Appellant on August 19, 2016, to file a concise statement of errors complained of appeal per
Appellant raises three issues for our review.
[WHETHER] THE TRIAL COURT ERRED AS A MATTER OF LAW BY DENYING APPELLANT‘S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION OF THE PENDING PETITION ACTION PURSUANT TO
68 P.S. [§] 1101 ET SEQ., [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO VERMIN OR DEBRIS IN THE PREMISES AND AFTER HEARING IT DETERMINED THAT TWO OF THREE REQUIRED CRITERIA WERE MET[?][WHETHER] THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT‘S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION
OF THE PENDING PETITION ACTION PURSUANT TO 68 P.S. [§] 1101, ET SEQ. , [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO VERMIN OR DEBRIS IN THE PREMISES AND AFTER HEARING IT DETERMINED THAT TWO OF THE THREE CRITERIA WERE MET[?][WHETHER] THE TRIAL COURT ERRED IN THAT ITS ORDER WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AVERRED IN THE PETITION FOR CONSERVATORSHIP PURSUANT TO
68 P.S. [§] 1101, ET SEQ. , SUBSEQUENT FILINGS AND AT THE HEARING HELD BY THE COURT BECAUSE THE PREMISES MET THE CRITERIA OF68 P.S. [§] 1105(D)(5) AS [APPELLEANT] PRESENTED EVIDENCE THAT THE PREMISES MET AT LEAST THREE OF THE [BLIGHT] CRITERIA [UNDER68 P.S. [§]1105(D)(5)? ]
(Appellant‘s Brief at 8-9) (internal footnote omitted).
As a prefatory matter, we must determine whether Appellant properly preserved its issues for review. See Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007), aff‘d, 602 Pa. 147, 977 A.2d 1170 (2009) (citing Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178 (2006), cert. denied, 549 U.S. 1171, 127 S.Ct. 1131, 166 L.Ed.2d 900 (2007)) (stating: “This Court may sua sponte determine whether issues have been properly preserved for appeal“); Hall v. Owens Corning Fiberglass Corp., 779 A.2d 1167, 1169 (Pa.Super. 2001) (stating: “[P]ost-trial relief may not be granted unless the grounds for such relief are specified in the post-trial motion. Grounds not specified in the post-trial motion are deemed waived“) (internal citations omitted); Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 (Pa.Cmwlth. 1998) (stating party‘s failure to file post-verdict motions constitutes waiver of all issues on appeal; whether appellant has preserved any issue for appeal can be raised sua sponte by reviewing court).
The Pennsylvania Rules of Civil Procedure set out the requirements for post-trial relief and state in pertinent part:
Rule 227.1. Post-Trial Relief
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(c) Post Trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial without a jury.
If a party has filed a timely post-trial motion, any other party may file a post-trial motion within ten days after the filing of the first post-trial motion.
Note: A motion for post-trial relief may be filed following a trial by jury or a trial by a judge without a jury pursuant to
Rule 1038 . A motion for post-trial relief may not be filed to orders disposing of...other proceedings which do not constitute a trial. See U.S. National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985).A motion for post-trial relief may not be filed to matters governed exclusively by the rules of petition practice.
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Parties to a proceeding that does not amount to a trial, however, need not file post-trial motions to preserve issues for appeal.
To determine whether an appellant must file post-trial motions following an in-court proceeding, we consider whether, under the circumstances of the action: (i) the plain language of
Instantly, Appellant initiated this case by filing a petition for appointment of a conservator pursuant to Act 135. The trial court conducted a hearing on Appellant‘s petition, during which the parties offered exhibits into evidence and collectively examined and cross-examined five witnesses. The parties introduced evidence and elicited witness testimony for the first time at the hearing. Although
Moreover, even if properly preserved, Appellant‘s issues on appeal would not warrant relief. The relevant standard of review is as follows:
Our review in a non-jury case is limited to whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. We must grant the court‘s findings of fact the same weight and effect as the verdict of a jury and, accordingly, may disturb the non-jury verdict only if the court‘s findings are unsupported by competent evidence or the court committed legal error that affected the outcome of the trial. It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the fact[-]finder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.
Agostinelli v. Edwards, 98 A.3d 695, 704 (Pa.Super. 2014), appeal denied, 631 Pa. 734, 113 A.3d 278 (2014) (internal citations omitted).
Act 135 provides, in relevant part, as follows:
§ 1105. Appointment of conservator
(a) General rule.—The court shall act upon a petition submitted by holding a hearing within 60 days of receipt of the petition and by rendering a decision no later than 30 days after completion of the hearing.
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(b) Hearing.—At the hearing, any party in interest shall be permitted to present evidence to support or contest the petition, including, but not limited to, the schedule of encumbrances.
(c) Conditions for conservatorship.—If a petition is filed under [this statute], the court may appoint a conservator if all of the following apply as of the date of filing:
(1) The building has not been legally occupied for at least the previous 12 months.
(2) The owner fails to present compelling evidence that he has actively marketed the property during the preceding 60-day period and made a good faith effort to sell the property at a price which reflects the circumstances and market conditions.
(3) The property is not subject to a pending foreclosure action by an individual or nongovernmental entity.
(4) The current owner fails to present sufficient evidence that he has acquired the property within the preceding six months. The evidence shall not include instances where the prior owner is a member of the immediate family of the current owner, unless the transfer of title results from the death of the prior owner, or where the current or prior owner is a corporation, partnership or other entity in which either owner has an immediate family of either owner has an interest in excess of 5%.
(5) The court finds at least three of the following:
(i) The building or physical structure is a public nuisance.
(ii) The building is in need of substantial rehabilitation and no rehabilitation has taken place during the previous 12 months.
(iii) The building is unfit for human habitation, occupancy or use. (iv) The condition and vacancy of the building materially increase the risk of fire to the building and to adjacent properties.
(v) The building is subject to unauthorized entry leading to potential health and safety hazards and one of the following applies:
(A) The owner has failed to take reasonable and necessary measures to secure the building.
(B) The municipality has secured the building in order to prevent such hazards after the owner has failed to do so.
(vi) The property is an attractive nuisance to children, including, but not limited to, the presence of abandoned wells, shafts, basements, excavations and unsafe structures.
(vii) The presence of vermin or the accumulation of debris, uncut vegetation or physical deterioration of the structure or grounds has created potential health and safety hazards and the owner has failed to take reasonable and necessary measures to remove the hazards.
(viii) The dilapidated appearance or other condition of the building negatively affects the economic well-being of residents and businesses in close proximity to the building, including decreases in property value and loss of business, and the owner has failed to take reasonable and necessary measures to remedy appearance or the condition.
(ix) The property is an attractive nuisance for illicit purposes, including prostitution, drug use and vagrancy.
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After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Idee C. Fox, we conclude Appellant‘s issues would merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed December 28, 2016, at 5-9, unpaginated) (finding: (1-2) Act 135 contains no provision allowing property inspection and discovery; Act 135 requires court to schedule hearing within sixty days of filing of petition; short period between filing of petition and hearing precludes prolonged discovery; further, mere filing of Act 135 petition does not permit petitioner to access another‘s property without presenting testimony and/or evidence of blight and abandonment; Appellant failed to meet its burden to prove Property is blighted and abandoned under Section 1105(d) of Act 135; if court determined Appellant had established Property were “abandoned and blighted” under Act 135, then court could allow inspection by conservator to prepare and submit conservatorship plan; (3) Appellant failed to establish minimum of three blight conditions under Section 1105(d)(5) of Act 135; evidence demonstrated Property is secured, gutted-out building, with one improperly boarded window, and requires substantial rehabilitation; Property also is unfit for human habitation, occupancy, or use, because it has no electrical or water service; Appellant failed to establish, however, that Property presents “potential health and safety hazard“; speculative evidence of debris and possible vermin did not demonstrate health and safety hazard; no evidence showed how debris at doorway affects health or safety of neighbors, and Appellant presented insufficient evidence of vermin; Appellant
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/18
OPINION
Petitioner G & G Investors, LLC appeals this court‘s Order of July 14, 2016, which denied its Petition for the Appointment of an Act 135 Conservator.
FACTUAL AND PROCEDURAL HISTORY
Petitioner, G & G Investors, LLC, filed a Petition for the Appointment of a Conservator pursuant to the Abandoned and Blighted Property Conservatorship Act,
After Respondent was served, Petitioner filed a Motion to inspect the Property prior to the scheduled hearing. Petitioner stated in Motion that “[t]his Honorable Court has authority to grant Petitioner the right to enter the premises for property inspection pursuant to
This court conducted a hearing on the Petition. Petitioner first offered testimony from David Feldman who was qualified as an expert as a realtor licensed in Pennsylvania and as a licensed architect. Mr. Feldman testified that he inspected the exterior of the Property and found certain deficiencies such as the building‘s “brick work appears to be pulling away from the building” (NT p. 21); the boarded second-floor window was installed improperly, resulting in “a very large opening for birds to get in and rain” (NT p. 25); looking through the windows of the first floor he saw debris and mouse or rat droppings” (NT p. 26-27). Mr. Feldman later qualified his testimony, stating he was not certain that what he saw were animal droppings (NT p. 41). The photos of the Property presented by Petitioner and identified by Mr. Feldman did not reflect an exterior of an “abandoned and blighted” property.
Lastly, Mr. Feldman testified that the condition of the Property has a negative effect on neighbors. By his own admission, Mr. Feldman drew his conclusion based on “generalities” and did not speak to any neighbors on the block or the surrounding area (NT p. 31). He did not testify as to the specific effect the alleged conditions of this Property had on the surrounding neighborhood, such as a reduction in value, or inability to obtain insurance.
Petitioner‘s third witness was Anthony Gioielli, co-owner of Petitioner G & G Investments. Mr. Gioielli testified that he‘d seen the back door to the Property unsecured (NT p. 62). Although Mr. Gioielli identified a photo of the back door which appeared to be open1, Mr. Mattei stated he never saw the back door open as it was in the photo.(NT p. 53). He further testified that he had seen people throw trash into the gated front entrance (NT p. 63), however none of the photos offered into evidence by Petitioner reflected trash in the area in question. The front of the Property appeared secured with gates covering large glass display windows. This appeared to be a corner commercial Property with glass display windows on both sides of the corner front entrance. Finally, Mr. Gioielli admitted that he had approached the Property owner prior to filing of this action and offered to buy the Property (NT p. 68). Mr. Gioielli testified that he owned properties in area, he was an investor that “flipped” properties and that this Property had affected his investment properties. He was not specific as to how these properties were affected.
Respondent‘s second witness was Christopher Sample, chief of staff to District Councilmember Kenyatta Johnson. Mr. Sample confirmed that the Councilman‘s office had not received any complaints about the Property, which is located in his district.
At the conclusion of testimony, Respondent moved to dismiss the action due to Petitioner‘s failure to satisfy the requirements of §1105 of Act 135. Petitioner requested that the court first allow an interior inspection of the Property pursuant to their Petition to Inspect. The court denied Petitioner‘s request and granted Respondent‘s oral Motion to dismiss or deny the Petition. This appeal followed.
DISCUSSION
In response to this court‘s Order, Petitioner filed a 1925(b) Statement of Matters Complained of on Appeal. Petitioner raises three issues, which the court will address below.
The first two issues raised on appeal relate this court‘s denial of Petitioner‘s Motion to inspect the interior of the Property. Petitioner contends that the court (1) erred as a matter of law; and (2) abused its discretion by denying the Petition to Inspect “because the [Act 135] Petition and Brief clearly stated that the discovery requested was necessary for a determination of the pending Petition action pursuant to
Act 135 contains no explicit provision for a property inspection, and the terms “inspection” or “inspect” do not appear in the statute. Act 135 also does not include any provision which would allow discovery. In fact the Act requires the Court to schedule a prompt hearing, and requires a hearing within sixty days of filing.
Petitioner begins its case by requesting an inspection. As Petitioner fails to meet the burden as set forth in
In addition, if the court had found Petitioner had established the conditions required under the Act to find the Property “abandoned and blighted“, it reasonably could allow an inspection by Conservator to prepare and submit a plan.
II. Act 135 Petition
Petitioner‘s third issue on appeal contends that the trial court erred in that “the decision to deny the Act 135 Petition was contrary to the weight of the evidence averred in the Act 135 Petition, subsequent filings and evidence presented at the hearing because the Property met the criteria of §1105 of Act 135.” This court disagrees.
Based upon the evidence presented at the hearing, Petitioner failed to satisfy its burden to establish the conditions set forth in §1105(d). The Petitioner established the conditions set forth in §1105(d)(1)-(4). However, §1105(d) requires Petitioner to prove three of the nine criteria required by §1105(d)(5).
The testimony of Mr. Feldman, and the other witnesses offered by Petitioner, the photos admitted into evidence, and the testimony of Mr. Simmons established that the Property is a secured, gutted-out building with one window that was boarded up improperly. Accordingly, the court finds that the Property is “in need of substantial rehabilitation” and because there is so electrical or water service to the Property it is “unfit for human habitation, occupancy of use” pursuant to §1105(d)(5)(ii) and (iii). However, Petitioner did not establish a third criteria as required. Petitioner did not
Petitioner provided evidence of debris and possible vermin, but not to the degree that it creates a “potential health and safety hazard” pursuant to §1105(d)(vii). The testimony established that there is minimal debris in the gated doorway to the Property. There was no evidence provided to show how this affects the health or safety of neighbors. There was also insufficient evidence of vermin, as Mr. Feldman admitted that he was not certain in his observation of mouse droppings.
Additionally, Petitioner failed to prove that “the dilapidated appearance or other condition of the building negatively affects the economic well-being of residents and businesses in close proximity to the building” pursuant to §1105(d)(viii). On this issue, the sole evidence offered by Petitioner was the expert opinion of David Feldman. Mr. Feldman admitted that his conclusions were based on generalities, while the language of the subsection is specific to “residents and business in close proximity to the building.” Petitioner offered no testimony from neighbors as to the effect of this Property. Respondent, on the other hand, produced evidence that no neighbor has ever complained to their Councilman regarding the Property. Accordingly, the court
finds that Petitioner failed to prove that three of the nine criteria of §1105(d)(5) were met.
For the above mentioned reasons, this court‘s decision should be affirmed.
BY THE COURT:
IDEE C. FOX, J.
Date: 12/28/16