Tolo Properties LLC v. S.Q. Jones & The Unknown Heirs of S.Q. Jones ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tolo Properties LLC, :
Appellant :
:
v. :
:
Sylvester Q. Jones and The Unknown : No. 334 C.D. 2019
Heirs of Sylvester Q. Jones : Submitted: February 26, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 3, 2021
Tolo Properties, LLC (Appellant), appeals from the February 6, 2019
order of the Philadelphia County Court of Common Pleas (trial court) that dismissed
Appellant’s Petition for the Appointment of a Conservator Pursuant to the
Abandoned and Blighted Property Conservatorship Act (Petition) of real property
located at 1806 Harlan Street, Philadelphia, Pennsylvania (the Property). For the
reasons that follow, we affirm.
On January 17, 2019, Appellant commenced this matter as an in rem
action by filing the Petition pursuant to the Abandoned and Blighted Property
Conservatorship Act, Act of November 26, 2008, P.L. 1672, as amended, 68 P.S. §§
1101-1111 (the Act). The Petition alleged the following concerning the Property:
16. The Property is a vacant and abandoned lot located at
1806 Harlan Street, Philadelphia, Pennsylvania 19121.
....
18. The Property and grounds have not been maintained
for at least 9 years. (A historic photograph of the Property
from Google Maps is attached hereto as Exhibit “3”).
19. Photos of the Property taken on January 5, 2019 are
attached hereto and incorporated herein as Exhibit “4”.
....
21. The Property is currently a trash strewn lot with
excessive debris.
22. The Property contains excessive overgrowth of
vegetation.
23. The debris and overgrowth subject the Property and
neighborhood to vermin. See Exhibit “4”.
24. The Property is in the following condition:
[Photograph attached.]
Petition at 3-4, ¶¶ 16, 18-19 & 21-24. The Petition then detailed numerous violations
from the City of Philadelphia Department of Licenses and Inspections issued to the
Property owner from 2011 through 2019 for failing to maintain the Property in a
clean, safe, and sanitary condition (collectively, Violation Notices). See Petition at
4-8, ¶¶ 25-44; see also Violation Notices, Exhibits 5-14. The Petition also included
certain attachments as exhibits, including an information certificate regarding the
Property from an abstract company (Exhibit 1); a deed to the Property dated
December 11, 1984 (Property Deed) (Exhibit 2); historical and current photographs
of the Property and surrounding properties (Exhibits 3 through 4 & 15); the Violation
2
Notices (Exhibits 5-14); and a printout from realtor.com detailing the Property and
the surrounding neighborhood together with a Financial Plan & Budget for the
planned conservatorship of the Property (Exhibit 16). See Petition Exhibits 1-16.
Without scheduling a hearing, the trial court dismissed the Petition
without prejudice by order dated February 6, 2019, which stated: “[Appellant] has
failed to establish the property in question falls under the definition of a ‘building’
pursuant to the Act.” Trial Court Order to Dismiss dated February 6, 2019 (Order
to Dismiss). Appellant timely appealed to this Court.1, 2, 3
On appeal, Appellant alleges that the trial court committed an error of
law and/or an abuse of discretion by denying the Petition without affording
Appellant a hearing or the opportunity to present additional evidence in support of
the Petition. See Appellant’s Brief at 4, 10-21. Specifically, Appellant alleges the
trial court failed to regard the Property Deed and photographs attached to the Petition
as proof that illustrated the Property once contained a building that has been
demolished. See id. at 10-15. Appellant also argues that the trial court erred in not
granting a hearing despite Appellant having included with the Petition a sworn
1
“Our review is limited to determining whether the trial court abused its discretion or
committed an error of law necessary to the outcome of the case.” City of Bethlehem v. Kanofsky,
175 A.3d 467, 475 (Pa. Cmwlth. 2017) (internal quotations omitted).
2
Appellee was precluded from filing a brief in this matter for failure to comply with this
Court’s Order of February 5, 2020, requiring Appellee to file a brief within 14 days.
3
By order dated February 20, 2020, this Court denied the Application of The Philadelphia
Land Bank (Land Bank) for Leave to Intervene and Request for Additional Time to File Brief,
which had been filed on January 28, 2020. Although it denied the requested intervention, this
Court’s February 20, 2020 order permitted Land Bank to file an amicus brief pursuant to Pa. R.A.P.
531, which Land Bank accordingly filed on March 11, 2020, and which alleges that the instant
appeal is moot as a result of Land Bank acquiring the Property at an April 18, 2019 sheriff’s sale.
We note that Appellant has not withdrawn this appeal.
3
statement that Appellant has met the requirements of pleadings under the Act. Id. at
15-21. We disagree.
Initially, this Court has explained that
in Pennsylvania, sufficient factual averments must be
pleaded in a complaint to sustain a cause of action.
Pennsylvania is a fact-pleading state; a complaint must not
only give the defendant notice of what the plaintiff’s claim
is and the grounds upon which it rests, but the complaint
must also formulate the issues by summarizing those facts
essential to support the claim. Even our present liberalized
system of pleading requires that the material facts upon
which a cause of action is premised be pled with sufficient
specificity so as to set forth the prima facie elements of the
[claims] alleged.
Horan v. Newingham (Pa. Cmwlth., No. 2622 C.D. 2015, filed Oct. 24, 2016),4 slip
op. at 17 (internal citations and quotation marks omitted).
The Act provides:
[a] petition for the appointment of a conservator to take
possession and to undertake the rehabilitation of a building
may be filed by a party in interest in a court in the county
in which the building is located.
Section 4 of the Act, 68 P.S. § 1104(a). Thus, at initiation, a petition must allege, at
a minimum, that the petitioner is a party in interest and that the property to which a
conservator is requested to be appointed is a “building” under the Act. See id. The
Act defines a “building” as
4
Pursuant to Commonwealth Court Internal Operating Procedure Section 414(a), 210 Pa.
Code § 69.414(a), unreported panel decisions of this Court, issued after January 15, 2008, may be
cited for their persuasive value.
4
[a] residential, commercial or industrial building or
structure and the land appurtenant thereto, including a
vacant lot on which a building has been demolished.
Section 3 of the Act, 68 P.S. § 1103. A trial court may deny a hearing under the Act
if “it appears that a prima facie entitlement to a hearing on the appointment of a
conservator is not established via documents or detailed averments attached to or
included in the [p]etition.” Philadelphia County Court of Common Pleas General
Court Regulation 2009-01 ¶ 10.
In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion
(1925(a) Opinion), the trial court noted the applicable definition of “building.”
1925(a) Opinion at 2. The trial court explained that Appellant was not entitled to a
hearing on the appointment of a conservator because the Petition failed to make
requisite allegations to establish a prima facie claim that the Property qualifies as a
“building” under the Act. See 1925(a) Opinion at 2-3. The trial court explained as
follows:
[T]here are no facts contained within the Petition to
establish the [P]roperty falls within the definition of
“building” as provided in the Act. The Petition alleges
“The Property is a vacant and abandoned lot located at
1806 Harlan Street, Philadelphia, PA 19121.” Nowhere in
this averment is an allegation that a building once stood on
1806 Harlan Street and had been demolished.
1925(a) Opinion at 2-3 (internal citations omitted).
We agree that the plain language of the Petition makes no averment that
the Property is a residential, commercial, or industrial building or structure. See
Petition at 3-8, ¶¶ 16-46. Further, as the trial court noted, the Petition makes no
express averment that the vacant lot that forms the Property ever had a building
5
thereon that has been demolished. See Petition at 3-7, ¶¶ 16-46; see also 1925(a)
Opinion at 2-3. Thus, the trial court needed to examine the documents attached to
or included in the Petition to determine whether it established a prima facie
entitlement to a hearing under the Act. See Philadelphia County Court of Common
Pleas General Court Regulation 2009-01 ¶ 10.
The trial court performed such an examination and determined as
follows:
A review of the photos reveals a vacant lot covered with
overgrown vegetation, litter, and debris; nothing in these
photos suggest a building existed on the lot and has been
demolished.
1925(a) Opinion at 3 (footnote omitted). Philadelphia County Court of Common
Pleas’ regulations allow the trial court to assess whether petitions filed under the Act
have met prima facie thresholds to request the appointment of a conservator. See
Philadelphia County Court of Common Pleas General Court Regulation 2009-01 ¶
10. We find no error of law or abuse of discretion in the trial court having made
such an assessment by reviewing the photographs attached to the Petition in this
case, Appellant’s disagreement with the trial court’s assessment of the photographs
notwithstanding.
Further, although not expressly discussed by the trial court in its order
or the 1925(a) Opinion, none of the other documents attached to the Petition could
have carried the Petition over the required threshold of producing prima facie
evidence that the Property is a “building” under the Act. Contrary to Appellant’s
suggestion,5 the Property Deed does not evidence that a building previously stood
5
See Appellant’s Brief at 13.
6
on the Property and has been demolished. The Property Deed is a form deed that
makes the following general conveyance: “ALL THAT CERTAIN lot or piece of
ground with building and improvements thereon erected[,]” and then continues with
a metes and bounds description of the Property. See Property Deed at 1. The
Property Deed does not include a description or any details of any then-existing
buildings or improvements. See id. at 1-3. The Property Deed’s general statement
regarding buildings and improvements is a conditional statement of possibility that
if, in fact, buildings or improvements actually did exist on the property when deeded,
then those buildings and improvements would be included and conveyed as part of
the deed. See Kramer v. Dunn, 749 A.2d 984, 992 (Pa. Super. 2000)6 (“where there
is a sale of real estate and the seller conveys the property with the structures and
buildings contained thereon, the deed is a representation that the buildings are a part
of the sale and are a part of the property described in the deed”). The Property Deed
does not, however, make a definite statement that any such buildings or
improvements actually existed at the time the deed was prepared, and thus cannot be
read as evidence of a previously existing and since demolished building for purposes
of the Act. See Property Deed.
Likewise, the other exhibits attached to the Petition do not represent
prima facie evidence that a now-demolished building once stood on the Property.
The Violation Notices discuss the unsanitary conditions existent at the Property,
which the notices describe simply as a vacant lot. See Petition Exhibits 5-14.
Additionally, the realtor.com printout and photographs of the surrounding
neighborhood describe the neighborhood in general and do not evidence or
6
Although not binding, Superior Court decisions are persuasive authority in this Court.
Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
7
necessitate the conclusion that a now-demolished building ever existed on the
Property in particular. See Petition Exhibits 15-16.
Finally, to the extent Appellant argues that “all that is required to
proceed to a hearing[,]” Appellant’s Brief at 16 (emphasis omitted), is a sworn
statement that the factors enumerated in Section 5(d)(5) of the Act are met, we
disagree. Section 5(d) of the Act specifies the conditions that must be present to
appoint a conservator under the Act, one of which conditions is the existence of a
minimum of three of the nine property conditions enumerated in Section 5(d)(5).
See 68 P.S. § 1105(d).7 The conditions enumerated in Section 5(d) are examined
7
Section 5(d) provides as follows:
(d) Conditions for conservatorship.--If a petition is filed under section
4, 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 or the immediate family of either owner has an interest
in excess of 5%.
(5) The court finds at least three of the following:
8
(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.
9
after a petition has been properly initiated under Section 4 of the Act. These
conditions do not replace the Act’s requirement that a petitioner for the appointment
of a conservator present adequate pleadings to proceed under the Act, including
averments sufficient to establish at least a prima facie case that the property for
which a conservator is sought qualifies as a “building” under the Act. See 68 P.S.
§§ 1103, 1104(a). As detailed above, Appellant failed to make this threshold
allegation either through direct averments or through documents attached to the
Petition, which the trial court reviewed in detail.
For these reasons, we affirm the trial court order dismissing the
Petition.8
__________________________________
CHRISTINE FIZZANO CANNON, Judge
68 P.S. § 1105(d).
8
We acknowledge Land Bank’s argument that this matter is moot as a result of Land
Bank’s purchase of the Property at an April 18, 2019 sheriff’s sale. See Amicus Brief at 1 & 3-4
(pagination supplied). While we appreciate Land Bank’s argument, given the Court’s denial of
Land Bank’s requested intervention and our disposition herein, we need not discuss either the
allegations of the amicus brief or the attached documentary support therefor. Those documents
are outside the underlying trial court record in any event.
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Tolo Properties LLC, :
Appellant :
:
v. :
:
Sylvester Q. Jones and The Unknown : No. 334 C.D. 2019
Heirs of Sylvester Q. Jones :
ORDER
AND NOW, this 3rd day of May, 2021, the February 6, 2019 order of
the Philadelphia County Court of Common Pleas is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge