G&G Investors, LLC v. Phillips Simmons Real Estate Holdings, LLC , 183 A.3d 472 ( 2018 )

J-A17015-17
2018 PA Super 80G & G INVESTORS, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
PHILLIPS SIMMONS REAL ESTATE :
HOLDINGS, LLC :
1262 POINT BREEZE AVENUE :
PHILADELPHIA, PA 19146 :
OPA/BRT: 871167750 :
:
Appellee : No. 2732 EDA 2016
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
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
OPINION BY GANTMAN, P.J.: FILED APRIL 04, 2018
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, 68 P.S. § 1101,
et seq. (“Act 135”), seeking to be appointed conservator of the Property.
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17015-17
The court dismissed Appellant’s petition without prejudice for procedural
defects on March 11, 2016. On March 17, 2016, Appellant filed an amended
petition for appointment of conservator. The court issued an order on March
21, 2016, to show cause and scheduled a hearing on Appellant’s amended
petition. On April 19, 2016, Appellant filed a petition for authorization to
inspect the Property’s interior. Appellee filed an answer and new matter to
the amended petition, and Appellant filed a reply to new matter.
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
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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.
1 Exhibit P-1H shows the back door to the Property
open. The integrity of the door is not compromised,
and there appears to be a lock-box attached to the
doorknob. There is no indication from the photo that
the Property is subject to unauthorized entry.
[Appellee]’s first witness was Lionel Simmons, co-owner of
[Appellee]. Mr. Simmons testified that [in] 2009 he
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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 Pa.R.A.P. 1925(b);
Appellant timely complied on September 9, 2016.
Appellant raises three issues for our review.
[WHETHER] THE TRIAL COURT ERRED AS A MATTER OF
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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 OF 68 P.S.
[§] 1105(D)(5) AS [APPELLANT] PRESENTED EVIDENCE
THAT THE PREMISES MET AT LEAST THREE OF THE
[BLIGHT] CRITERIA [UNDER 68 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:
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“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
* * *
(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
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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.
* * *
Pa.R.C.P. 227.1(c)(1)-(2) and Note (emphasis added). Generally, following
a trial, an appellant must file post-trial motions to preserve issues for
appellate review; issues not raised in post-trial motions are waived.
Chalkey v. Roush, 757 A.2d 972, 975 (Pa.Super. 2000) (en banc), aff’d,
569 Pa. 462, 805 A.2d 491 (2002). Our Supreme Court has held “that
pursuant to Rule 227.1…, parties are required to file post-trial motions from
a trial court’s order following a trial in both actions at law and in equity in
order to properly preserve issues that they wish to raise on appeal….”
Chalkey v. Roush, 569 Pa. 462, 463-64, 805 A.2d 491, 492 (2002).
Parties to a proceeding that does not amount to a trial, however, need
not file post-trial motions to preserve issues for appeal. Pa.R.C.P.
227.1(c)(1)-(2) and Note. Pennsylvania courts look to the substance of an
action, rather than the form of a petitioner’s initial pleading, to determine
whether an action falls within the scope of Rule 227.1. Motorists Mut. Ins.
Co. v. Pinkerton, 574 Pa. 333, 343 n. 6, 830 A.2d 958, 964 n. 6 (2003)
(applying Rule 227.1 to action petitioner initiated through “Petition for
Declaratory Judgment,” where case did not proceed under “rules of petition
practice”; explaining substance of action, not label petitioner gives initial
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pleading, dictates whether Rule 227.1 applies).
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 Rule 227.1 makes clear
a post-trial motion is necessary; (ii) case law provides a post-trial motion is
necessary, even if Rule 227.1 is silent on the subject; and (iii) practicing
attorneys would reasonably expect a post-trial motion to be necessary.
Newman Development Group of Pottstown, LLC v. Genuardi’s Family
Markets, 617 Pa. 265, 289-90, 52 A.3d 1233, 1248 (2012). Case law
requires a post-trial motion following a proceeding, where the court heard
new testimony and received new evidence, which the court relied upon when
it issued its decision. See id. at 294-95, 52 A.3d at 1251 (stating:
“a…proceeding…that relies on an existing record is not a trial….”); Vautar v.
First Nat. Bank of Pennsylvania, 133 A.3d 6, 11-12 (Pa.Super. 2016)
(providing where parties took no new testimony and introduced no evidence
and court issued verdict based solely on evaluation of existing record,
proceedings did not amount to trial and post-trial motions were
unnecessary); City of Philadelphia v. New Life Evangelistic Church,
114 A.3d 472, 478 (Pa.Cmwlth. 2015) (discussing Newman, supra and
stating: “[T]he Supreme Court…signaled that a hearing that bears the
hallmarks of a trial by requiring or admitting, or…offering a party the
opportunity to present additional evidence, does constitute a ‘trial’ for
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the purposes of [Rule] 227.1”) (emphasis in original).
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 Rule 227.1 is silent concerning post-trial
motions following an Act 135 hearing, the record establishes the court relied
upon the July 13, 2016 hearing testimony and documentary evidence when
it denied Appellant relief. See Newman, supra; Pa.R.A.P. 227.1(c).
Therefore, case law makes clear, and practicing attorneys would reasonably
expect, post-trial motions were necessary following the July 13, 2016
hearing. See Newman, supra; Vautar, supra. Thus, the hearing on
Appellant’s petition constituted a trial for purposes of Rule 227.1. See
Newman, supra; Vautar, supra; Pa.R.A.P. 227.1(c). After the court
denied Appellant’s petition, however, Appellant filed a timely notice of appeal
but failed to file any post-trial motion. Accordingly, Appellant waived its
issues on appeal. See id.
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
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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.
* * *
(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
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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:
(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
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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.
* * *
68 P.S. § 1105(a), (c), (d).
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
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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 also failed to
prove dilapidated appearance or condition of Property negatively affects
economic well-being of residents and businesses near Property; Appellant
presented no testimony from neighbors as to effect of Property, and
Appellee produced evidence that no neighbor had complained to city
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councilman about Property). The record supports the trial court’s rationale,
and we would have no need to disturb it. Accordingly, even if Appellant had
properly preserved its issues on appeal, we would affirm on the basis of the
trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/18
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Circulated 03/09/2018 10:30 AM
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G & G INVESTORS, LLC FEBRUARY TERM, 2016 " v.- 1 .;
v. N0.1599
PHILLIPS SIMMONS REAL ESTATE SUPERIOR COURT
HOLDINGS, LLC 2732 EDA 2016
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, 68
P.S. §1101 et seq. C'Act 135''). Petitioner sought appointment as Conservator of
property located 1262 Point Breeze Avenue in Philadelphia ("Property"). The named
owner of the Property is Phillips Simmons Real Estate Holdings, LLC ('Respondent'').
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 Pa.C.R.P. 4009.31. ..... As the elements of Petitioner's proofs include
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elements on the interior of the premises, Petitioner respectfully requests this Honorable
Court grant a property inspection." This court finding that any such inspection should
not be allowed until after a hearing and Petitioner's has established, through testimony
and/or evidence, that the Property qualifies for relief under Act 135, deferred its
decision until the scheduled hearing.
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 hls.conduslon 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 second witness was Mariano Mattei. Mr. Mattei's father owns 1262
Point Breeze Avenue, 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 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." (NT p, 56) Accordingly, the court found him not credible.
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. Gloielli 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. Gioielll 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.
1
Exhibit P-lH shows the back door to the Property open. The integrity of the door Is not compromised, and there
appears to be a lock-box attached to the doorknob. There is no indication from the photo that the Property ls
subject to unauthorized entry.
Respondent's first witness was Lionel Simmons, co-owner of Respondent Phillips
Simmons Real Estate. Mr. Simmons testified that 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 (NT p. 76). He admitted that at some point he
stopped work due 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 (NT p. 77). Respondent introduced photographs of the
interior to show the status of the Property renovations and were consistent with his
description that the Property had been "gutted out." This court found Mr. Simmons
credible.
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.
I. Petition to Inspect
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
68 P.S. 1101 et seq." Petitioner also contends that since Respondent averred that
rehabilitation has taken place during the previous twelve months, Petitioner should
have opportunity to view the premises and assess the work. This court disagrees.
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. 68 P.S.
§1105(a). This short time frame precludes prolonged discovery periods. The
importance of prompt resolution may also be gleaned from the Legislature's 2014
amendment to Act 135, which shortened the time period under §1105(a) from 120 days
to 60 days. See 2014, Oct. 22, P.L. 2557, No. 157. Clearly the Legislature found that
actions to remediate blighted and abandoned buildings, many of which are imminently
dangerous to neighbors, should be resolved quickly. Related to this issue Is the
requirement that a !is pendens be filed against the property when the Act 135 petition
is filed. See§1104(c). Lis pendensis notice to the world that a cloud exist over the
title to a property. Janus Mgmt Servs., Inc. v. Schlessinger, 2002 Pa. Super 312, 810
A.2d 637, 642 (Pa.Super. 2002). This cloud is a significant encumbrance upon the
owner as it may prevent, inter a/ia, the sale of the property to a responsible purchaser.
The /is pendens may also prevent an owner from borrowing the funds necessary to
repair a property. Repair of the property by the owner, or sale of the property to a
buyer who would make repairs is a more efficient means of transformation than court-
supervised conservatorship. Accordingly, this court finds that a prompt determination
of whether a conservator should be appointed, and whether the /is pendensshould be
lifted, is in accordance with the purpose of Act 135.
Petitioner begins its case by requesting an inspection. As Petitioner fails to meet
the burden as set forth In 68 P.S. §1105(d), it demands an interior inspection to prove
its claim that the Property is "abandoned and blighted" as defined by Act 135. Petition
contends that the mere filing of a Petition should allow it immediate access to another's
property, without any threshold, and without presenting testimony and/or evidence of
the conditions required under Act 135. If the only reason for this court's dismissal of the
Petition was based solely on Respondent's statement that renovations had been made
on the Property over the proceeding twelve months and such work was not apparent,
then the court may have properly continued the matter to allow an inspection.
However, that is not the case here.
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.
For these reasons, the court's denial of the Petition to Inspect was correct as a
matter of law. Further, the court did not abuse its discretion. As discussed below,
Petitioner failed to present sufficient evidence to allow this court to find that this
Property met the conditions as required under §1105(d).
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, §UOS(d) requires Petitioner to prove
three of the nine criteria required by §llOS(d)(S).
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)(S)(li) and (iii).
However, Petitioner did not establish a third criteria as required. Petitioner did not
present credible and/or sufficient evidence that the Property: is a public nuisance2; the
condition and vacancy of the building materially increases the risk of fire3; is subject to
unauthorized entry leading to potential health and safety hazards4; is an attractive
nuisance to children5; or is an attractive nuisance for illicit purposes6• With regard to
the remaining two criteria, Petitioner failed to meet its burden of proof.
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 §UOS(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
2
§llOS(d}(S)(ii)
3
§llOS(d)(S)(iv)
4
§llOS(d)(S)(v)
5
§llOS(d)(S)(vi)
6
§llOS(d)(S)(ix)
finds that Petitioner failed to prove that three of the nine criteria of §1105(d)(S) were
met.
For the above mentioned reasons, this court's decision should be affirmed.
Date:_ / �
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