IN THE SUPERIOR COURT OF PENNSYLVANIA
LEBANON COUNTY HOUSING AUTHORITY, : Docket No. 34 MDA 2008
Appellee :
:
v. : Trial Court Docket No.:
: 2006-01289
VERONICA LANDECK, : (Lebanon County Court
Appellant : of Common Pleas)
BRIEF FOR APPELLANT, Veronica Landeck
Appeal from the entry of judgment against the Defendant / Appellant
pursuant to Orders dated December 4, 2007 and December 13, 2007
of the Court of Common Pleas of Lebanon County, Pennsylvania in
Docket No. 2006-01289
Howard Miskey
Attorney I.D. #29463 MidPenn Legal Services
513 Chestnut Street
Lebanon, Pennsylvania 17042
(717) 274-2834
TABLE OF CONTENTS
Page
Table of Citations 4
Statement of Jurisdiction 8
Order in Question 9
Statement of Scope and Standard of Review 10
Statement of the Questions Involved 11
Statement of the Case 13
Summary of Argument 23
Argument 24
I. The Trial Court Erred as a matter of law by concluding that the Housing Authority has established its right to possession of the rental property.
II. The Trial Court erred as a matter of law by concluding that Landeck failed to prove the necessary elements to establish a reasonable accommodation defense to the Housing Authority’s Eviction Action under the Fair Housing Act.
Conclusion and Statement of Relief Sought 42
Appendices 44
A. Order and Adjudication of the Lower Court dated December 4, 2007 by the Honorable Samuel A. Kline
B. Order of the Lower Court Denying Defendant’s Motion For Post-Trial Relief dated December 13, 2007 by the Honorable Samuel A. Kline
C. Defendant’s Statement of Matters Complained of on Appeal Pursuant to Rule 1925 (b) filed January 21, 2008
D. Notice of Proposed Termination of Lease (Exhibit 5)
E. Notice to Quit (Exhibit 4)
F. Letter from Landeck marked Received June 9, 2006 (Exhibit 7)
G. Letter to Susan Bowman dated July 10, 2006 (Exhibit 13)
H. Letter from Michael Seifert dated 7/13/06 (Exhibit 9)
I. HUD – DOJ Joint Statement - Reasonable Accommodations Under the Fair Housing Act.
TABLE OF CITATIONS
Cases Page
Abstract Inv. Co. v. Hutchinson, 22 Cal.Rptr. 309 (Cal. Ct. App. 1962) 37
Allegheny County Housing Authority v. Lancing, 908 A.2d 336 (Pa. Super. Ct. 2006) 10
Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547 (Pa. Super. Ct. 2004) 10
Ananst v. Commonwealth Apartments, 956 F.Supp. 792 (N.D.Ill. 1997) 39
Ansonia Acquisition I. LLC v. Francis, 1999 Conn. Super. LEXIS 3516 (Conn. Super. Ct. Nov. 18, 1999) 37
Arnold Murray Constr., L.L.C. v. Hicks, 621 N.W.2d 171 (S.D. 2001) 38
Atlantic LB, Inc. v. Zdravko, 905 A.2d 552 (Pa. Super. Ct. 2006) 24
Boulder Meadows v. Saville, 2 P.3d 131 (Colo. Ct. App. 2000) 38
Brown v. Brown, 64 A.2d 506 (Pa. Super. Ct. 1949) 24
Capone v. Kenny, 646 So. 2d 510 (La. Ct. App. 1994) 37
City Wide Assocs. v. Penfield, 564 N.E.2d 1003 (Mass. 1991) 38, 39
Cobble-Hill Apts. V. Sandra McLaughlin, 1999 Mass.App.Div. 166 (Mass.App.Div. 1999) 39, 46
Connecticut Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612 (U.S. 1884) 31
Cordrey v. Town of Holyoke Housing Authority, No. 80-C-881, 1980 U.S. Dist. LEXIS 17835 (D. Colo. Dec. 3, 1980) 27
Cunningham v. Superior Court, 67 Cal. App. 4th 743 (Cal. Ct. App. 1998) 27
Dodrill v. Shalala, 12 F.2d 915 (9th Cir. 1993) 31
Douglas v. Kriegsfeld Corp., 884 A.2d 1109 (D.C. 2005) 30, 31,
35-40
Elizabethtown Lodge No. 596 v. Ellis, 137 A.2d 286 (Pa. 1958) 24
Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702 (Minn. 1982) 37
First Mortgage Co. of Pennsylvania v. Carter, 452 A.2d 835 (Pa. Super. Ct. 1982) 25
Giebeler v. M&B Assocs., 343 F.3d 1143 (9th Cir. 2003) 40
Groner v. Golden Gate Gardens Apts., 250 F.3d 1039 (6th Cir. 2001) 40
Hous. Auth. of Bangor v. Maheux, 748 A.2d 474 (Me. 2000) 38-40
Howell v. Sewicklev Twp., 43 A.2d 121 (Pa. 1945) 25
In Re Estate of Costick, 526 A.2d 746, 748 (Pa. 1987) 24
Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891 (7th Cir. 1996) 35-37
Josephinium Assocs. v. Kahli, 111 Wn. App. 617 (Wash. Ct. App. 2002) 37
Kalina v. Eckert, 497 A.2d 1384 (Pa. Super. Ct. 1985). 24
L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090 (Pa. Super. Ct. 2001) 10
Lable & Co. v. Flowers, 661 N.E.2d 782 (Ohio Ct. App. 1995) 10
Liazis v. Kosta, Inc., 618 A.2d 450 (Pa. Super. Ct. 1992) 24
Malibu Inv. Co. v. Sparks, 996 P.2d 1043 (Utah 2000) 38
Marine Park Assocs. v. Johnson, 274 N.E.2d 645 (Ill. App. Ct. 1971) 37
Mascaro v. Hudson, 496 So.2d 428 (La. Ct. App. 1986) 37
Moore v. Housing Authority of New Haven, 1993 Conn. Super. LEXIS 3235 (Conn. Super. Ct. Nov. 22, 1993) 27
Newell v. Rolling Hills Apts., 134 F.Supp. 2d 1026 (N.D. Iowa 2001) 37
Paradise Mangement Inc. v. Johnson, No. 85D-10201 (Ga. State Ct. DeKalb County, June 25, 1986) 27
Radecki v. Joura, 114 F.3d 115 (8th Cir. 1997) 39
Roe v. Housing Authority of the City of Boulder, 909 F.Supp. 814 (D. Col. 1995) 39
Roe v. Sugar Mills Assoc., 820 F.Supp. 636 (D.N.H. 1993) 39
Schuett Inv. Co. v. Anderson, 386 N.W.2d 249 (Minn. Ct. App. 1986) 38
Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995) 40
Taylor v. Phoenixville School District, 184 F.3d 296 (3rd Cir. 1999) 36
Triffin v. Dillabough, 716 A.2d 605 (Pa. 1998) 10
U.S. v. California Mobile Home Park Management Co., 29 F.3d 1413 (9th Cir. 1994) 37
U.S. Airways v. Barnett, 535 U.S. 391 (U.S. 2002) 35
Union River Assoc. v. Budman, 850 A.2d 334 (Me. 2004) 39
Western Land Office, Inc. v. Cervantes, 220 Cal. Rptr. 784 (Cal. Ct. App. 1985) 37
William v. Notopolis, 103 A. 290 (Pa. 1918) 25
Wilson v. Transport Ins. Co., 889 A.2d 563 (Pa. Super. Ct. 2005) 10
Statutes and Regulations
42 U.S.C. §§ 3601-3619 30-31
42 U.S.C. §§ 12101-12213 35
24 C.F.R. § 966.7 37
42 Pa.C.S.A. § 742 8
Other Authority
HUD Handbook 4350.3 REV-1, app. 4-A, Paragraph 11 (issued June 12, 2003, dated 5/03) 26
Joint Statement, “Reasonable Accommodations Under the Fair Housing Act” available at http://www.usdoj.gov/crt/housing/joint_statement_ra_5-17-04.pdf 31-32
36, 40
Stern’s Trickett on the Law of Landlord and Tenant in Pennsylvania, Section 359 (Rev’d 1973 Ed.) 25
STATEMENT OF JURISDICTION
Jurisdiction over this matter is conferred upon this Honorable Court by Title 42 Pa.C.S.A.
§ 742, providing that the Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of the chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.
ORDER IN QUESTION
AND NOW, this 4th day of December, 2007, after reviewing the transcript, documentary evidence, and legal memoranda of the parties, the Court finds in favor of Plaintiff and as against Defendant.
Defendant is granted temporary possession of the rental property at 1408 Lafayette Street, Lebanon for 60 days from the date of this Order, so as to provide her an opportunity to locate new housing. Thereafter, Defendant must vacate the property. Further, the terms of the parties’ lease remain enforceable during this period.
By the Court,
/s/Samuel A. Kline, J.
Samuel J. Kline
STATEMENT OF SCOPE AND STANDARD OF REVIEW
This Court’s scope of review of a bench trial verdict is plenary where the issue concerns a question of law. The trial court’s conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts of the case. Wilson v. Transport Ins. Co., 889 A.2d 563, (Pa. Super. Ct. 2005) quoting Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa. Super. Ct. 2004).
This Court’s standard for review is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. While this Court must consider the evidence in a light most favorable to the verdict winner, it must reverse the trial court if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. Amerikohl Mining Co., Inc. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa. Super. Ct. 2004), appeal denied, 876 A.2d 392 (2005); Allegheny County Housing Authority v. Lancing, 908 A.2d 336 (Pa. Super. Ct. 2006).
The trial court's conclusions of law on appeal originating from a non-jury trial "are not binding on an appellate court because it is the appellate court's duty to determine if the trial court correctly applied the law to the facts" of the case. Triffin v. Dillabough, 716 A.2d 605, 608 (Pa. 1998) (emphasis in original); L.B. Foster Co. v. Charles Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090 (Pa. Super. Ct. 2001).
STATEMENT OF THE QUESTIONS INVOLVED
I. Did the Trial Court Err as a matter of law by concluding that the Housing Authority has established its right to possession of the rental property?
Proposed Answer: Yes
A. Did the Trial Court fail to identify which provisions of the lease agreement between the parties were violated by Landeck and what evidence supports such conclusions?
Proposed Answer: Yes
B. Is the Trial Court’s implied finding that the Housing Authority has presented substantial evidence that Landeck has committed a material breach of her lease, supported by the record and by the weight of the evidence?
Proposed Answer: No
C. Did the Trial Court mischaracterize the evidence by concluding that the May 2006 inspection showed no change in the condition of the home, by ignoring the testimony that Landeck fully complied with the directive given on May 30, 2006 by Housing Authority that she must “relocate all flammable items from your laundry room area immediately”?
Proposed Answer: Yes
II. Did the Trial Court err as a matter of law by concluding that Landeck failed to prove the necessary elements to establish a reasonable accommodation defense to the Housing Authority’s eviction action under the Fair Housing Act?
Proposed Answer: Yes
A. Did the Trial Court mischaracterize the evidence by concluding that at the landlord-tenant hearing of July 2006, Landeck “first mentioned her depression and asked for a reasonable accommodation, but offered no further proof or information” by ignoring several previous occasions including on May 18, 2006, June 9, 2006 and July 10, 2006 prior to such hearing, as well as subsequently, when Landeck disclosed the nature of her disability to the Housing Authority; provided details and on July 10, 2006 and July 24, 2006, requested a reasonable accommodation?
Proposed Answer: Yes
B. Did the Trial Court improperly refuse to permit Landeck’s witnesses, Michael Seifert, MPAS and Joseph Abraham, to testify fully as to their knowledge of Landeck’s disability; to admit into evidence correspondence from them to the Housing Authority regarding Landeck’s disability and their willingness to provide assistance to her as part of a reasonable accommodation request; and is the Trial Court’s conclusion that “neither of these witnesses presented credible evidence that Landeck provided the Authority with notice of any impairment to her ability to comply with the lease prior to the Authority’s filing of legal papers”, contrary to the weight of the evidence and does it demonstrate a misunderstanding and misapplication of applicable law?
Proposed Answer: Yes
C. Is the Trial Court’s conclusion that “. . . the Authority only received a hint of Landeck’s situation after the judgment of the DJ had been handed down, . . . was not nearly as clear as the Douglas letter . . . and did not ask for any sort of accommodation . . . “, supported by the record and the weight of the evidence; and in accordance with applicable law?
Proposed Answer: No
D. Is the Trial Court’s finding that “the Authority had no knowledge of Landeck’s alleged disability and that Landeck did not request a reasonable accommodation” supported by the record and the weight of the evidence?
Proposed Answer: No
STATEMENT OF THE CASE
This is a landlord and tenant ejectment action in which the Lebanon County Housing Authority (hereinafter “Housing Authority”) has sought to evict Veronica Landeck, (hereinafter “Landeck”) who resides in an apartment owned by the Housing Authority, with her teenaged grandson, Codi. The purported reasons for the termination of her tenancy by the Housing Authority as expressed in the notice of proposed termination of lease and notice to quit in April 2006 included creating an unsafe condition by keeping flammable materials too close to the water heater; blocking egress in the front bedroom due to a large quantity of items in the room; poor housekeeping; causing damages – to wit: a broken step and a hole in the second floor closet door; and failure to promptly report such damages.
Landeck defended the eviction on two grounds. First, that the Housing Authority, despite their allegations, had failed to establish a material breach of the conditions of the lease which would justify termination of her tenancy. Second, that she was a person with a disability under the Fair Housing Act; who made her disability know to the Housing Authority and requested a reasonable accommodation in their rules, policies or practices to enable her to remedy the alleged lease violations which were the basis for her eviction; which request was ignored by the Housing Authority, who continued to pursue her eviction in violation of the law.