Deaktor v. Sutton

245 A.3d 1070 (Table)

Scott I. DEAKTOR and Marsha A. Deaktor, Husband and Wife d/b/a Scott and Marsha Deaktor Real Estate, Appellants v. Raymond K. SUTTON, a/k/a Kevin Sutton and Beth F. Young Sutton, Husband and Wife Scott I. Deaktor and Marsha A. Deaktor, Husband and Wife d/b/a Scott and Marsha Deaktor Real Estate v. Raymond K. Sutton a/k/a Kevin Sutton and Beth F. Young Sutton, Husband and Wife, Appellants

No. 1548 WDA 2019

No. 1565 WDA 2019

Superior Court of Pennsylvania.

Filed December 15, 2020

MEMORANDUM BY BENDER, P.J.E.:

Appellants, Scott I. Deaktor and Marsha A. Deaktor, husband and wife d/b/a Scott and Marsha Deaktor Real Estate, appeal and Appellees, Raymond K. Sutton a/k/a Kevin Sutton and Beth F. Young Sutton, husband and wife, cross-appeal from the July 30, 2019 judgment entered by the trial court following a non-jury trial. After careful review, we affirm.

The trial court summarized the factual and procedural background of this case as follows:

In 2016, the Sutton family had to relocate from Washington, D.C. to Pittsburgh because [Mr.] Sutton left his position as assistant coach of the Georgetown University men[’s] basketball team for a position as assistant coach of the University of Pittsburgh men[’s] basketball team. Mr. Sutton's wife, Beth, suffers from moderate asthma, while their youngest daughter, then six years old, suffers from severe asthma. Hence, during negotiations to rent a townhouse located in Pittsburgh at 709 Copeland Street, the Suttons informed [Ms.] Deaktor, who owned the property with her husband, Scott, that [Ms. Sutton] and their two daughters suffered from asthma triggered by poor air quality. While Ms. Deaktor described 709 Copeland Street, which rented for $5,200 per month, as the "crown jewel" of their two hundred rental units, its windows had been leaking water during rainfalls for a lengthy period of time. The wood around the windows was rotting from the moisture, but the Deaktors simply painted the rotting wood without repairing the leaky windows. They knew, or should have known, that these conditions produce mold and poor air quality. Ms. Deaktor, however, told the Suttons the air quality was good and did not disclose the condition to the Suttons before they signed a lease agreement on April 25, 2016.

Mr. Sutton was able to move to 709 Copeland Street on April 29, 2016. Due to her employment as a teacher, Ms. Sutton could not physically inspect the property before the lease signing and remained in Washington, D.C.[,] with their youngest child until June 10. Shortly after they moved in, Ms. Sutton and her daughter began experiencing asthma symptoms. When her daughter's symptoms worsened, Ms. Sutton started the "action plan" from her daughter's physicians that included using a nebulizer every four hours followed by Flonase. The Suttons also noticed water penetrating the home during a rainstorm and suspected poor air quality due to it. On June 21[,] the Suttons notified Ms. Deaktor that, due primarily to the[ir] illness from mold in 709 Copeland Street, they could no longer stay there and wanted to be released from the lease. After Ms. Deaktor refused to have a mold test done, on June 24[,] Mr. and [Ms]. Sutton had 709 Copeland Street tested for mold, and on June 28[,] they received the results. Stachybotrus, more commonly known as toxic black mold, was present in the air samples from June 24. Ms. Sutton was terrified, and after her daughter slept there that night wearing a mask that filters out pollutants in the air, on June 29[,] the Suttons moved out. They stayed in Pittsburgh hotels and traveled elsewhere until July 15, when they moved to another home in the Pittsburgh area. Two days before that, Mr. and [Ms]. Deaktor filed the complaint in civil action that began this proceeding. ^[1]

On March 27, March 28[,] and April 18, 2019, the dispute went for resolution by way of a non-jury trial before me. I then issued a verdict in favor of Mr. and [Ms]. Deaktor in the amount of $61,860, with a counterclaim verdict in favor of Mr. and [Ms]. Sutton in the amount of $40,303.06. ^[2] Mr. and [Ms]. Deaktor, as well as Mr. and [Ms]. Sutton, filed [timely] motions for post-trial relief. I denied those motions and entered judgment on the verdict. Mr. and [Ms]. Deaktor filed a timely appeal to the Commonwealth Court of Pennsylvania, with Mr. and [Ms]. Sutton thereafter also filing a timely appeal to the Commonwealth Court of Pennsylvania. ^[3] However, the dispute is not within the jurisdiction of the Commonwealth Court, and on September 30 and October 1, 2019[,] the Commonwealth Court ordered the transfer of it to the Superior Court of Pennsylvania.

Trial Court Opinion (TCO), 10/28/19, at 1-3.

The Deaktors’ Appeal

We address the Deaktors’ appeal first. They raise the following issues for our review:

1. Whether the [t]rial [c]ourt abused its discretion and erred as a matter of law in giving [the Suttons] the benefits of the early termination clause of the [l]ease where [the Suttons] did not exercise their rights thereunder?

2. Whether the [t]rial [c]ourt abused its discretion and/or erred as a matter of law in finding a violation of the [UTPCPL] where: [the Suttons’] damages were not a result of such a violation; the finding was based upon purported pre-lease, parol evidence; the [t]rial [c]ourt found the [l]ease [p]remises suitable for persons of ordinary sensibilities[;] and [the Deaktors] did not violate the Landlord Tenant Act?

3. Whether the [t]rial [c]ourt's conclusion that there was harmful mold in the [l]ease [p]remises which affected a child of hypersensitivities, but not persons of normal sensitivities, in the absence of any expert or other competent evidence or testimony was supported by substantiated evidence?

Deaktors’ Brief at 4.

At the outset, we observe:

Our appellate role in cases arising from nonjury trial verdicts 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 the jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only 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. However, [where] the issue ... concerns a question of law, our scope of review is plenary.

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.

The trial court, as the finder of fact, is free to believe all, part or none of the evidence presented. Issues of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight and credibility determination or substitute our judgment for that of the fact finder.

Gamesa Energy USA, LLC v. Ten Penn Center Associates, L.P. , 181 A.3d 1188, 1191-92 (Pa. Super. 2018) (internal citations and quotation marks omitted; brackets in original).

First Issue

In the Deaktors’ first issue, they argue that the trial court abused its discretion and erred as a matter of law in giving the Suttons the benefits of the early termination clause contained in the lease, when the Suttons failed to exercise their rights under that clause. See Deaktors’ Brief at 38. The at-issue early termination clause provides the following, which we produce verbatim :

18. DEFAULT

***

E) If TENANT wishes to DEFAULT through an EARLY TERMINATION of this Lease before the end of the specified Lease Term, Tenant must:

1. Give LANDLORD 30 (thirty) day written NOTICE before TENANT's actual move-out day. (Tenant is responsible for the leased property during this full 30 day term which also includes maintaining service with all applicable utilities providers and also being current of all remittances for the monthly rent during this full 30 day period as specified in Paragraph 2 of this Lease);

2. Written NOTICE will go into effect on the 1st of the preceding month after NOTICE is received. (Example: If NOTICE is received on June 15, 2018, NOTICE will go into effect July 1, 2018);

3. Forfeit to LANDLORD your full security deposit;

4. Pay LANDLORD non-refundable settlement feeequivalent to two (2) month's rent (this will not be returned to TENANT), payable by money order, certified check, or cashier's check, DUE on the 1st day of the month that NOTICE takes effect. (Example: if NOTICE is received on June 15, 2018, NOTICE will go into effect July 1, 2018, and PENALTY FEE is also due on July 1, 2018);

5. Be up to date on rent, utilities, and any other applicable remittance as specified within this Lease;

6. Comply with an immediate property inspection subject to the convenience of LANDLORD as soon as NOTICE takes effect;

7. Pay LANDLORD if TENANT damaged the Leased Unit for any loss if TENANT broke promise in this Lease. TENANT must follow all vacating procedures and is subject to the charges outlined within the "Vacating Procedures" of this Lease;

8. Vacate the Leased property on or before the last day of the month that NOTICE is in effect by 5PM Eastern Standard Time. (Example: If NOTICE takes effect on July 1, 2018, tenant must vacate property on or before July 31, 2018 by 5PM EST).

9. In addition to the above 18E-1 through 18E-8; TENANT agrees to reimburse LANDLORD in a separate check payable to SMDRE ^[4] equal to the amount of $100.00 (one hundred U.S. Dollars) for City Ordinance Registration Fee if Ordinance is approved and passed by City of Pittsburgh at time of DEFAULT.

Deaktors’ Exhibit 6 at 4 (cited to hereinafter as the Lease).

Here, in limiting the Deaktors to damages of $15,900 under the early termination clause, the trial court explained:

The

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