The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Housing Authority of :
Lackawanna County : CASES CONSOLIDATED
:
v. : No. 215 C.D. 2024
: No. 512 C.D. 2024
Denise Schnars, : Submitted: December 9, 2024
:
Appellant :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 5, 2025
Denise Schnars (Tenant) appeals from a September 18, 2023 order of
the Lackawanna County Court of Common Pleas (trial court), entering judgment in
favor of the Housing Authority of Lackawanna County (Housing Authority). For
the reasons that follow, we affirm in part and reverse in part.
I. BACKGROUND
On October 20, 2022, the Housing Authority filed a one-count eviction
complaint with the trial court, alleging that Tenant engaged in harassing and criminal
activity directed towards contractors hired by the Housing Authority to perform
work at Tenant’s housing site. Housing Authority’s Complaint, 10/20/22,
Reproduced Record (R.R.) at 1.1 The trial court docketed the complaint at No. 2022-
04231. Tenant, acting pro se, filed an answer and new matter. Tenant’s Answer and
New Matter, 11/7/22, Original Record (O.R.), 512 C.D. 2024 at No. 5.
On November 2, 2022, the Housing Authority filed a three-count
eviction complaint with the trial court, alleging that Tenant: (1) failed to pay rent;
(2) failed to allow maintenance workers to inspect and/or make repairs to her
apartment; and (3) failed to comply with the recertification process. Housing
Authority’s Complaint, 11/2/22, R.R. at 3. The trial court docketed the complaint at
No. 2022-04401. Tenant, acting pro se, filed an answer, new matter and
counterclaim. Tenant’s Answer, New Matter and Counterclaim, 12/1/22, R.R. at 6.
The counterclaim consists of a single count titled “Breach of Contract.” Id., R.R. at
11.
On April 20, 2023, the Housing Authority filed a “Motion to Dismiss
[Tenant’s] Counterclaim and to Prohibit [Tenant] from Asserting Defense of
Habitability as a Matter of Law” (motion to dismiss counterclaim). Housing
Authority’s Motion to Dismiss Counterclaim, 4/20/23, R.R. at 30. Citing the case
of Ford v. Philadelphia Housing Authority, 848 A.2d 1038 (Pa. Cmwlth. 2004), the
Housing Authority argued that a contract action for warranty of habitability does not
apply to public housing. Id., ¶¶7-11, R.R. at 31. On May 8, 2023, Tenant, then
represented by counsel, filed (1) an “Agreement to Withdraw Claims for Breach of
Implied Warranty of Habitability” (agreement to withdraw) and (2) a motion to
consolidate her two appeals. Tenant’s Agreement to Withdraw, 5/8/23, R.R. at 33;
Tenant’s Motion to Consolidate, 5/8/23, O.R., 215 C.D. 2024 at No. 22. In the
1
We note that Tenant’s Reproduced Record is not properly numbered as directed in
Pa.R.A.P. 2173 (reproduced record shall be numbered separately in Arabic figures followed by a
small “a”). For convenience, we will refer to the Reproduced Record as paginated by Tenant.
2
agreement to withdraw, Tenant withdrew her counterclaim to the extent it pled a
claim for breach of implied warranty of habitability. Tenant’s Agreement to
Withdraw, ¶¶9-11, R.R. at 34.
On May 15, 2023, Tenant filed a “Brief in Opposition to [the Housing
Authority’s Motion to Dismiss [Tenant’s] Counterclaim . . . .” (brief in opposition
to the Housing Authority’s motion to dismiss). Tenant’s Brief in Opposition to
Motion to Dismiss, R.R. at 37. Citing Ford, Tenant’s brief in opposition to the
Housing Authority’s motion to dismiss theorized that a contract action for implied
warranty of habitability does not apply to public housing. Tenant posited that “since
the [Housing Authority] is already mandated to provide habitable environments
under federal law, there is no need to implement the implied warranty of habitability
to protect tenants.” Tenant’s Brief in Opposition to Motion to Dismiss at 4, R.R. at
40. The brief in opposition to motion to dismiss asserted, however, that “Tenant’s
counterclaim seeks damages for both breach of contract and tortious conduct.
Incorporated into the counterclaim is the allegation that [the Housing Authority]
violated the ‘warranty of habitability.’” Id. Tenant stressed that under Section VII
of the lease,2 the Housing Authority explicitly agreed to provide a habitable living
environment. Id. Tenant also suggested that insofar as the Housing Authority might
argue that these causes of action were not sufficiently pleaded in Tenant’s
counterclaim, the Housing Authority could have filed preliminary objections rather
than answering the counterclaim. Id. at 5, R.R. at 41.
2
The lease can be found at page 392 of the Reproduced Record.
3
The trial court held argument on the motion to dismiss counterclaim on
May 30, 2023.3 In an order issued that same day, the trial court granted, without
further explanation, the Housing Authority’s motion to dismiss counterclaim and
Tenant’s motion to consolidate the two eviction complaints. Trial Court Order,
5/30/23, R.R. at 42.
II. TRIAL
On June 9, 2023, the trial court held a bench trial and evidence was
presented on the following.4
A. Tenant’s Alleged Failure to Cooperate with Maintenance Personnel
The Housing Authority presented the testimony of Judy Thiel, the
property manager for Tenant’s apartment complex. Thiel testified that Tenant raised
concerns with the Housing Authority about the habitability of her apartment unit
because “in the closet there was mold that had to be taken care of[,] and [Tenant]
stated in another part of the unit she thought there was mold.” Trial Transcript,
6/9/23, Notes of Testimony (N.T.) at 19. Thiel stated that maintenance personnel
went to Tenant’s apartment to inspect the area, but Tenant would not allow them to
see what needed to be done “because it was too extensive that she couldn’t be not –
[sic] - could not be in the unit while they did anything.” Id., N.T. at 20-21. Thiel
3
The May 30, 2023 proceeding ostensibly began as an argument on a motion in limine
filed by the Housing Authority; however, it morphed into an argument on whether Tenant’s
counterclaim contained any causes of action in addition to breach of implied warranty of
habitability. The argument was transcribed and appears in the Original Record of the appeal
docketed at 215 C.D. 2024, at Docket Entry No. 50.
4
The trial transcript can be found on page 171 of the Reproduced Record.
4
further testified that on a prior occasion, Tenant had been instructed to clean out the
closet area and notify staff so that they could return and evaluate the premises and/or
perform necessary work. Tenant never contacted the Housing Authority. Id., N.T.
at 88. Thiel confirmed that Tenant’s failure to allow maintenance personnel to enter
the unit or to prepare the unit for maintenance was a lease violation. Id., N.T. at 23.
Finally, Thiel stated that on July 14, 2022, the Housing Authority issued Tenant a
notice to quit because Tenant would not allow maintenance personnel “to do the
repairs in her unit [or] to see what was needed to do the repairs[].” Id., N.T. at 19;
Housing Authority Exhibit 6.
The Housing Authority also presented the testimony of Leo “Skip”
Southard, a maintenance employee of the Housing Authority. Southard testified that
he went to Tenant’s apartment approximately five times to assess the mold issues.
Trial Transcript, N.T. at 93. Southard indicated that he could never access the area,
particularly Tenant’s closet, because Tenant “had a lot of stuff” in the apartment.
Id., N.T. at 94. Southard stated:
Q. And to the best of your knowledge, did she ever clear
out that area to allow you to get in there?
A. No, not until the last time I was in there[,] which was
a couple months ago maybe, I guess.
Q. So even after all this time she knows what has to be
done and it still hasn’t been done?
A. No.
Q. So[,] were you even adequately able to assess the
situation in her unit?
A. No, I actually didn’t see it.
Q. This is through no fault of your [own] though, right?
5
A. No.
Q. Assuming you were able to get access to the closet and
the area, is the Housing Authority ready, willing, and able
to do whatever is necessary to remedy?
A. Sure. Yeah, we could have did [sic] it.
Id.
Tenant testified on her own behalf. Tenant stated that she moved into
her apartment in October of 2012. Trial Transcript, N.T. at 121. At the time of the
trial, she was not staying in the apartment due to mold. Id., N.T. at 121-22. Tenant
first noticed mold and moisture in her apartment in 2018. Id., N.T. at 125. Tenant
indicated that the moisture issues were initially caused by a hot water heater that was
fixed and eventually replaced by maintenance personnel. Id. Tenant testified that
she periodically purchased “moisture absorbers” to collect moisture in the air. Id.,
N.T. at 126-28. Tenant also stated that she had the substance in her apartment tested
and that the test was positive for mold. Id., N.T. at 129. Tenant stated that she
suffered headaches because of the mold. Id., N.T. at 135. Tenant denied that she
prevented maintenance personnel from accessing her apartment or performing work.
Id., N.T. at 164, 174.
B. Tenant’s Alleged Failure to Comply with the Recertification Process
Thiel testified that the Department of Housing and Urban Development
(HUD) requires all tenants to participate in an annual recertification process. Trial
Transcript, N.T. at 24. Thiel stated that she sent Tenant a letter on August 1, 2022,
scheduling Tenant’s recertification appointment for August 8, 2022. Id., N.T. at 25;
Housing Authority Exhibit 8. Tenant was an “October 1st recert[ification.]” Id.,
N.T. at 84. Tenant responded in writing, via her attorney, advising Thiel that she
6
would not participate in the recertification process. Id., N.T. at 27; Housing
Authority Exhibit 9. Thiel testified that failure to participate in the recertification
process is a lease violation. Id., N.T. at 29. As a result, on August 17, 2022, Thiel
issued a notice to quit for Tenant’s failure to participate in the recertification process.
Id., N.T. at 27; Housing Authority Exhibit 10. Thiel stated that as of June 9, 2023
(the date of trial), Tenant had not yet completed her 2022 annual recertification. Id.,
N.T. at 84.
During her testimony, Tenant acknowledged that she received a notice
from Thiel on August 1, 2022, concerning her annual recertification paperwork.
Trial Transcript, N.T. at 170. Tenant stated that she told Thiel it would be difficult
to meet with her because “it takes me a lot longer to get all the documents
prepared[.]” Id. Tenant further acknowledged that her lawyer had sent a letter to
Thiel, advising her that Tenant would not participate in the recertification process
while the eviction was pending. Id., N.T. at 202. Tenant testified that she provided
the completed recertification application in February of 2023 when she attached it
to her discovery responses. Id., N.T. at 171-72. Tenant also stated that because the
Housing Authority was not satisfied with the application, she resubmitted it on
several occasions. Id., N.T. at 172-73. Finally, on cross-examination, Tenant
conceded that her recertification application was late. Id., N.T. at 205.
C. Tenant’s Rent Abatement
Thiel testified that on July 7, 2022, the Housing Authority issued a
notice to quit because Tenant had failed to pay her rent by the fifth of the month.
Trial Transcript, N.T. at 14-15; Housing Authority Exhibit 4. Thiel stated that
Tenant stopped paying rent after the notice to quit was issued because she believed
7
that her unit was uninhabitable. Id., N.T. at 42. Thiel indicated that Tenant owed
rent for the months of July, August, September, and October of 2022. Id., N.T. at
15.
In response, Tenant testified that she deposited rent for July, August,
and September 2022 into an escrow account with the trial court. Trial Transcript,
N.T. at 200, 205. Tenant noted that she sent a letter to Thiel in April of 2022,
requesting a reduction in rent for the cost of mold testing. Id., N.T. at 147. Tenant
stated that she began abating rent in July of 2022 because of habitability issues in
her unit. Id., N.T. at 147-48, 153. Tenant’s intent to abate rent was conveyed in an
email from her attorney to the Housing Authority’s counsel. Id., N.T. at 151.
Tenant admitted that the Housing Authority offered her a different
apartment in February of 2022; however, it was not in the same community. Trial
Transcript, N.T. at 178-79. Tenant acknowledged that she did not accept the
Housing Authority’s offer stating, “Why should I be forced from my home for issues
that weren’t of my doing? Why should I be forced from my community?” Id., N.T.
at 180. Tenant testified that the Housing Authority then offered to put her on the list
for the next available one-bedroom apartment in her current complex. Id. Tenant
accepted the offer because she believed an apartment would be available in
approximately four months; however, the Housing Authority later rescinded the
offer when it began eviction proceedings based on Tenant’s alleged harassment of
contractors. Id., N.T. at 180-81.
III. TRIAL COURT’S VERDICT/POST-TRIAL MOTIONS
On June 14, 2023, the trial court entered a verdict in favor of the
Housing Authority, finding that the Housing Authority had satisfied its burden of
8
proof on three of the four counts it raised in its eviction complaints. Specifically,
the trial court found that Tenant violated the following sections of the lease
agreement: (1) Sections VII(c)(1), (2) and XIV(a)(5) by failing to participate in and
complete the recertification process; (2) Section X, “Tenant Responsibilities” (b)
and Section XIV(a) by failing to pay rent in July, August, and September of 2022;
and (3) Section IX(o) by failing to act in a cooperative manner with the Housing
Authority staff. 5 See Trial Court Verdict, 6/14/23, ¶¶1-7, R.R. at 99-101. Thus, the
trial court ordered that Tenant was to vacate the premises by June 30, 2023. Id., ¶11,
R.R. at 101. In the event that Tenant failed to comply, the trial court indicated that
“the [Housing Authority] can seek an order of possession for [Tenant’s] premises
. . . from the Office of [the Magisterial District Judge (MDJ)].” Id., ¶12, R.R. at 101.
The trial court further stated that “[the MDJ’s office] shall comply with a request for
an Order of Possession upon presentation of this order.” Id., ¶13, R.R. at 102.
Tenant filed a “Motion for Post-Trial Relief . . . Requesting a New Trial
and/or the Modification of the Verdict” (motion for post-trial relief). Tenant’s
Motion for Post-Trial Relief, 6/23/23, R.R. at 103. By order dated August 11, 2023,
the trial court denied Tenant’s motion for post-trial relief and judgment was entered
in favor of the Housing Authority on September 18, 2023. See Trial Court Order,
8/11/23, R.R. at 128. Tenant then filed a notice of appeal to the Superior Court.6
5
The trial court also determined that the Housing Authority did not meet its burden of
proving that Tenant engaged in criminal activity in violation of Section XIV(a)(7) of the lease.
That finding is not challenged on appeal.
6
By order dated March 7, 2024, the matter was transferred to Commonwealth Court and
was docketed at No. 215 C.D. 2024. On April 10, 2024, this Court issued an order noting that the
trial court order on appeal appeared to involve consolidated actions before the trial court. Citing
the case of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), the order advised that Tenant may
wish to file an additional notice of appeal to preserve her appellate rights. On October 5, 2023,
(Footnote continued on next page…)
9
The trial court ordered Tenant to file a statement of errors complained
of on appeal. See Pa.R.A.P. 1925(b). Tenant responded by raising 27 alleged errors
challenging the trial court’s ruling related to Tenant’s counterclaim; the trial court’s
finding that Tenant improperly abated rent; the trial court’s finding that she refused
to cooperate with the Housing Authority’s maintenance personnel; the trial court’s
conclusion that Tenant failed to comply with the recertification process; and
asserting that the trial court improperly “streamlin[ed]” the order of possession
process. O.R., 215 C.D. 2024 at No. 48; O.R., 512 C.D. 2024 at No. 23.
IV. TRIAL COURT’S PA.R.A.P. 1925(a) OPINION
In response to Tenant’s statement of errors complained of on appeal,
the trial court issued an opinion pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a), Pa.R.A.P. 1925(a), addressing the following.
A. Tenant’s Counterclaim
The trial court noted that Tenant’s counterclaim raised one count for
breach of contract. The counterclaim stated:
COUNT 1-BREACH OF CONTRACT
2. [Tenant] has been a resident in good standing at 47
Kennedy Boulevard, Scranton[,] PA 18504 for ten (10)
years.
3. The current executed lease was signed in September
2021 with current property manager Judy Thiel and is not
the lease shown in Exhibit A of [the Housing Authority’s]
Complaint.
Tenant filed a second notice of appeal. The second notice of appeal was docketed at No. 512 C.D.
2024. By order dated July 19, 2024, this Court consolidated Tenant’s appeals.
10
4. The lease in effect is attached as Exhibit 3.
5. [The Housing Authority] violated the warranty of
habitability of the subject premises and did not address
major repairs and issues as requested in a timely manner.
See Exhibit 1 and 2 to this pleading.
6. [The Housing Authority’s] failure to timely address the
structural defects and habitability issues inside and outside
the unit[,] which directly caused a moisture problem to
continue and get worse leading to an increased
accumulation of mold inside the unit.
7. Major problems and failed repairs included damage to
the outer wall and damage to the insulation of the outer
wall, and damage to the inner wall that contributed to
serious mold issues in the subject premises are attached as
Exhibit 4 [sic].
8. [Tenant] informed [the Housing Authority] of her cares,
concerns, and maintenance issues in a letter sent in
December 2021. See Exhibit 1.
9. [The Housing Authority’s] response is attached as
Exhibit 2.
10. [The Housing Authority] by correspondence dated
February 17, 2022, advised that, as was its obligation, it
would move [Tenant] to a separate unit. See Exhibit 5.
11. Subsequently, [the Housing Authority] revoked [its]
offer and violated [its] obligation to relocate [Tenant] and
instead sought to evict [Tenant].
12. The repairs were not completed by July 2022, when
[Tenant] began to withold [sic] rent, abatement, [sic] for
the repairs which were still not completed since November
2021 as per her right under the lease agreement.
13. [Tenant] was required to pay for the Mold Test cost
out[-]of[-]pocket. Attach Receipts as Exhibit 6 [sic].
11
14. [Tenant] has suffered economic loss to include out[-]
of[-]pocket costs for cleaning supplies necessitated by the
reoccuring [sic] mold.
15. [Tenant] has incurred costs, expenses[,] and wage loss
for being required to miss work and accept less hours due
to the need to respond by [sic] the [Housing Authority’s]
demands and its failure to address the habitability issues
of her unit rending [sic] her sick and required medical
attention.
16. [Tenant] has suffered economic loss to include out[-]
of[-]pocket costs for mold testing kits and expenses for
analysis of testing. Exhibit 6.
17. [Tenant] is further entitled to any/all rent payments
which she property [sic] withheld, through abatement,
from July 2022 to the present.
WHEREFORE, [Tenant] requests that this Court grant her
claims for relief and enter judgment in her favor and award
[Tenant] her damages, fees[,] and costs, including attorney
fees, reasonably incurred in connection to this matter.
Tenant’s Counterclaim, ¶¶2-17, R.R. at 11-13.
The trial court noted that “[i]nitially, this court dismissed Tenant’s
entire counterclaim because of the language regarding a breach of warranty of
habitability in averment 5. However, Tenant still pled with sufficient language a
claim for breach of contract. As such, this court will address the merits of Tenant’s
counterclaim.” Trial Court Pa.R.A.P. 1925(a) Opinion (Trial Court Opinion),
11/30/2023, at 19.7 The trial court emphasized that in order to sustain the burden of
proof in a contract claim, Tenant was required to establish by a preponderance of the
evidence that: (1) a contract between the parties exists; (2) the Housing Authority
breached the contract; and (3) Tenant was harmed as a result of the breach. Id.
7
The trial court’s opinion can be found on page 151 of Tenant’s Reproduced Record.
12
The trial court highlighted Tenant’s testimony that excess moisture in
her unit resulted in harm to both Tenant and her belongings. Furthermore, Tenant
testified that she made the Housing Authority aware of the issue, but the Housing
Authority breached the contract because it failed to remedy the problem, “resulting
in physical and economic harm.” Trial Court Opinion at 19. In support, Tenant
submitted photographs that “clearly show[ed] water damage.” Id. In addition,
Tenant testified that she had headaches and nausea as a result of the mold. Id.
The trial court noted that Tenant’s testimony was contradicted by the
testimony of Thiel and Southard, as well as the exhibits. The trial court observed
that “Tenant admitted [the Housing Authority] offered her alternative housing but
she rejected the offer.” Trial Court Opinion at 19. Moreover, addressing the
Housing Authority’s repair of the unit, the trial court stated, “it is clear that [the
Housing Authority] tried to gain access numerous times but was unsuccessful.” Id.
at 19-20. Thus, the trial court held that Tenant failed to satisfy her burden of showing
that the Housing Authority breached a duty of care to her. Per the trial court, “the
testimony and exhibits clearly demonstrate otherwise.” Id. at 20.
B. Tenant’s Alleged Lease Violations
Turning to Tenant’s alleged lease violations, Section XIV of the lease
sets forth the procedures the Housing Authority must follow when terminating a
Tenant’s lease. This section states that the Housing Authority may terminate the
lease “only for serious or repeated violations of material terms of the [l]ease, such
as failure to make payments due under the lease or to fulfill Tenant obligations set
forth in [S]ection IX above, or for other good cause.” Section XIV(a) of the Lease
Agreement, R.R. at 405. Furthermore, Section XIV of the lease lists violations that
13
constitute serious violations of material terms. The list includes, but is not limited
to:
(1) The failure to pay rent or other payments when due;
....
(5) Failure to supply, in a timely fashion, any certification,
release, information, or documentation on Family income
or composition needed to process annual reexaminations
or interim redeterminations.
Section XIV(a)(1), (a)(5) of the Lease Agreement, R.R. at 406. The trial court held
that the Housing Authority presented sufficient evidence to find the following
serious violations of material terms of the lease. In reaching its decision, the trial
court emphasized that each ground standing on its own constituted a serious
violation of a material term of the lease. Trial Court Opinion at 19.
1. Tenant’s Alleged Failure to Cooperate with Maintenance
Personnel
The trial court noted that Section IX(o) of the lease requires Tenant to act in
a cooperative manner with Housing Authority staff. The trial court determined the
testimony of Thiel, Southard, and Tenant herself established that the Housing
Authority’s repeated attempts to gain entry to Tenant’s apartment for purposes of
inspecting and/or repairing the mold were “without success.” Trial Court Opinion
at 16. Based on this evidence, the trial court concluded that the Housing Authority
met its burden to show that Tenant was uncooperative with Housing Authority staff.
14
2. Tenant’s Alleged Failure to Comply with the Recertification
Process
The trial court further held that the Housing Authority successfully met
its burden of proving that Tenant violated Section VII(c) of the lease when she failed
to comply with the annual recertification process. The trial court emphasized that
Section VII(c) of the lease sets forth a tenant’s obligations regarding the
recertification process and explicitly provides that failure to supply information
when requested is a serious violation of the terms of the lease that may result in the
lease’s termination. Trial Court Opinion at 16.8 Here, Thiel testified that Tenant
8
Section VII(c)(1)-(2) of the lease discusses the lease’s terms and conditions. Section
VII(c) states in part:
(c) Redetermination of Rent, Dwelling Size and Eligibility. The rent
amount as fixed in Part I of the Lease Agreement is due each month
until changed as described below.
(1) The status of each family is to be re-examined at
least once a year. Tenants paying Flat Rent shall
have their incomes reexamined every three years.
At the annual recertification. [sic]
(2) Tenant promises to supply [the Housing
Authority], when requested, with accurate
information about: family composition, age of
family members, income and source of income of
all family members, assets, community service
activities, and related information necessary to
determine eligibility, annual income, adjusted
income and rent. . . .
Failure to supply such information when requested is a serious
violation of the terms of the lease and [the Housing Authority] may
terminate the lease.
Section VII(c)(1)-(2) of the Lease Agreement, R.R. at 398 (citation omitted).
15
clearly advised she would not participate in the recertification process. Additionally,
Thiel testified that as of June 9, 2023 (the date of trial), Tenant had yet to complete
the annual recertification process for 2022. The trial court observed that “[t]his
violation alone is grounds for eviction . . . .” Trial Court Opinion at 16.
3. Tenant’s Rent Abatement
Finally, the trial court concluded that the Housing Authority
successfully proved that Tenant failed to comply with the rent abatement provision
in Section X of the lease when she withheld rent from July through September 2022.
Per Section II(a) of the lease, rent was to be paid on the first day of each month and
would be considered delinquent on the fifth day of each month. Meanwhile, Section
X of the lease discusses rent abatement in the event a dwelling unit is hazardous to
a tenant’s health. It provides in pertinent part:
X. Defects Hazardous to Life, Health or Safety: In the
event that the dwelling unit is damaged to the extent that
conditions are created that are hazardous to the life, health,
or safety of the occupants: . . .
[Housing Authority] Responsibilities:
(a) [The Housing Authority] shall be responsible for
repair of the unit within a reasonable period of
time after receiving notice from Tenant,
provided, if the damage was caused by Tenant,
household members, or guests, the reasonable
cost of the repairs shall be charged to Tenant.
...
(b) [The Housing Authority] shall offer Tenant a
replacement dwelling unit, if available, if
necessary repairs cannot be made within a
reasonable time. . . .
16
(c) Tenant shall accept any replacement unit offered
by [the Housing Authority].
(d) In the event [the Housing Authority], as
described above cannot make repairs, and
alternative accommodations are unavailable,
then rent shall abate in proportion to the
seriousness of the damage and loss in value as a
dwelling. No abatement shall occur if Tenant
rejects alternative accommodations or if Tenant,
household members, or guests caused the
damage. . . .
(e) If [the Housing Authority] determines that the
dwelling unit is untenantable because of
imminent danger to the life, health, and safety of
Tenant, and Tenant refuses alternative
accommodations, this Lease shall be terminated,
and any rent paid will be refunded to Tenant.
Tenant Responsibilities:
(a) Tenant shall immediately notify the Project
Manager of the damage and intent to abate rent,
when damage is or becomes sufficiently severe
that Tenant believes he/she is justified in abating
rent. . . .
(b) Tenant agrees to continue to pay full rent, less
the abated portion agreed upon by [the Housing
Authority], during the time in which the defect
remains uncorrected.
Section X of the Lease Agreement, “Housing Authority Responsibilities” (a)-(e),
“Tenant Responsibilities” (a)-(b), R.R. at 403-04 (citations omitted, emphasis in
original).
In this case, the trial court noted, Tenant testified that she rejected the
replacement unit offered her in violation of Section X(c) of the lease. Additionally,
Tenant did not allow maintenance personnel to inspect or repair her unit. Further,
17
Tenant did not abate her rent in accordance with the lease terms. See Section X of
the Lease Agreement, “Tenant Responsibilities” (a)-(b). Accordingly, the trial court
maintains it properly ruled in favor of the Housing Authority. Trial Court Opinion
at 17-18.
V. DISCUSSION
A. Tenant’s Counterclaim
On appeal to this Court,9 Tenant first argues that the trial court
improperly dismissed her counterclaim. Tenant acknowledges that the trial court
conceded in its Pa.R.A.P. 1925(a) Opinion that it erred in granting the Housing
Authority’s motion to dismiss the counterclaim. Tenant contends the trial court
erred, however, when it went on to address the merits of Tenant’s counterclaim and
summarily dismissed it. In this regard, the trial court concluded that because Tenant
denied Housing Authority personnel access to her unit and refused the Housing
Authority’s offer of alternative housing, her breach of contract claim was without
merit.
In response, the Housing Authority asserts that despite its Pa.R.A.P.
1925(a) Opinion, the trial court at the outset properly dismissed Tenant’s
counterclaim. The Ford decision explicitly holds that a contract action for warranty
of habitability does not apply to public housing. A fair reading of the counterclaim’s
averments shows that the counterclaim asserts nothing other than a breach of
warranty of habitability. The Housing Authority challenges Tenant’s attempt to
9
Trial courts have broad discretion to grant or deny a new trial. Zeigler v. Detweiler, 835
A.2d 764 (Pa. 2003). When analyzing a decision by a trial court to grant or deny a new trial, the
proper standard of review, ultimately, is whether the trial court abused its discretion. Id. at 767
(quoting Harmon ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000)).
18
make a distinction between an “implied” warranty of habitability and an “express”
warranty of habitability. The Housing Authority asserts that based on the holding in
Ford, “the difference between implied or express is irrelevant since a warranty of
habitability claim is totally barred as an action against a public housing agency.” Id.
Based on our review of the averments in Tenant’s counterclaim, it is
apparent that she pled nothing beyond a breach of warranty of habitability. Clearly,
the focus of Tenant’s counterclaim is on the habitability of her unit and the damages
she allegedly suffered as a result of the Housing Authority’s purported failure to
make necessary repairs. Because our decision in Ford precludes actions for breach
of warranty of habitability in the context of public housing, we conclude that the trial
court correctly granted the Housing Authority’s motion to dismiss counterclaim in
the first instance.
B. Tenant’s Alleged Lease Violations
1. Tenant’s Alleged Failure to Cooperate with Maintenance
Personnel
Tenant asserts that the trial court erred when it held that she did not
cooperate with maintenance personnel because she failed to answer the door when
they visited her unit. Tenant, without providing additional details, contends that
“[t]he trial transcript shows [the trial court] was mistaken about the number of times
[the Housing Authority] tried to access the unit.” Tenant’s Brief at 27. Regardless,
Tenant asserts that her failure to answer the door is “irrelevant” because the Housing
Authority has a key to the premises. “If entering the residence is important,” Tenant
states, “[the Housing Authority] has what it needs to peaceably get inside.” Id.
Tenant directs attention to Section XII(b)(3) of the lease, which addresses “Entry of
19
the Premises During Tenancy” and provides, “[i]f Tenant and all adult members of
the household are absent from the dwelling unit at the time of entry, [the Housing
Authority] shall leave in the dwelling unit a written statement specifying the date,
time and purpose of entry prior to leaving the dwelling unit.” Section XII(b)(3) of
the Lease Agreement, R.R. at 405.
Tenant also focuses on the trial court’s conclusion that maintenance
personnel unsuccessfully tried to access her unit on July 15, 2022. To the contrary,
Tenant argues, the record reflects that no one from the Housing Authority came to
Tenant’s apartment on July 15, 2022. Moreover, Tenant asserts, both Thiel and
Southard testified that they were in Tenant’s apartment on multiple occasions.
The Housing Authority responds that testimony in the record clearly
reflects that Tenant “frustrated any and all attempts of [the Housing Authority] to
investigate and potentially remedy any alleged issues with her unit.” Housing
Authority Brief at 19. Per the Housing Authority, there is more to Tenant’s lease
violation than failing to permit maintenance personnel to enter her apartment.
Indeed, the crux of Tenant’s lease violation was her failure to comply with requests
that she clean out the closet area so that the Housing Authority could investigate and
eventually remediate.
We believe Tenant’s argument misses the mark. While both Thiel and
Southard testified that, on occasion, Tenant would not answer her door when
maintenance personnel and other Housing Authority representatives came to her
unit, it was Tenant’s failure to cooperate and follow further instructions that
established a violation of Section IX(o) of the lease. See Testimony of Judy Thiel,
R.R. at 189-90, 257-58; Testimony of Leo Southard, R.R. at 264, 283-84. The
testimony of Thiel and Southard reflects that Tenant was asked on multiple
20
occasions to clean out the closet area so the problem could be assessed, but to no
avail. Moreover, Tenant thwarted any inspections by maintenance personnel,
insinuating the problem was too difficult to remedy. Clearly, it was Tenant’s
uncooperative behavior that prevented the situation from being remedied.
Accordingly, based on our careful review of the record, we cannot say
that the trial court erred in holding that Tenant violated Section IX(o) of the lease.
2. Tenant’s Alleged Failure to Comply with the Recertification
Process
The parties do not dispute that Section VII(c) of the lease requires
individuals like Tenant to complete a yearly recertification process or they may face
eviction. Tenant asserts that she complied with the recertification requirements
when she attached a complete copy of her recertification application to her trial
memorandum. Tenant contends that “[a]t the time of trial, [the Housing Authority]
had everything it needed to determine whether Tenant qualified for federally
subsidized housing.” Tenant’s Brief at 31. Tenant argues that the late submission
of her recertification application should not be considered a material breach of the
lease agreement.
The Housing Authority responds that the testimony at trial was
“indisputable” that Tenant did not timely recertify as required by the lease. Housing
Authority Brief at 20. Thiel testified that annual recertification is required for all
HUD tenants. Despite this condition, Tenant’s prior counsel nevertheless informed
the Housing Authority that Tenant refused to participate in the recertification
process. In the same vein, Tenant herself admitted that she had not recertified in a
timely manner.
21
Based on our review of the record, it is apparent that Tenant’s failure
to participate in the recertification warrants her eviction. Section VII(c) of the lease
unambiguously sets forth a tenant’s obligations regarding the recertification process
and explicitly provides that failure to supply information when requested is a serious
violation of the terms of the lease and may result in termination. Tenant’s then-
counsel informed the Housing Authority that she would not participate in the
process; however, following an apparent change of heart, Tenant’s new counsel
attempted to rectify the situation by first attaching the recertification application to
a discovery response in February of 2023, see Trial Transcript, N.T. at 341-42, and
later including it as an attachment to Tenant’s Trial Brief. O.R., 215 C.D. 2024 at
No. 32. Clearly, attaching the recertification to a discovery response and/or a trial
brief does not constitute standard procedure. Further, coupling Tenant’s recalcitrant
behavior with the overall untimeliness of her submission, it is apparent that Tenant
did not make a good faith effort to comply with this lease provision. Thus, we find
no error in the trial court’s ruling.
3. Tenant’s Rent Abatement
Tenant also challenges the trial court’s conclusion that she violated the
lease agreement by failing to pay rent in July, August, and September of 2022.
Tenant does not dispute that failure to pay rent is grounds for termination of the lease
agreement; however, Tenant asserts that because her health and safety was
jeopardized by the mold in her unit, her failure to pay was justified. Tenant argues
that the Housing Authority in essence conceded that there was a habitability issue in
her dwelling when it offered her alternative housing. Furthermore, Tenant contends
22
that the Housing Authority was given adequate time to make repairs prior to her
abatement but it failed to do so.
For its part, the Housing Authority maintains that Tenant’s argument is
based on a faulty premise, i.e., that Tenant’s life, safety, and health were jeopardized
by the condition of her unit. Per the Housing Authority, there is no credible evidence
in the record reflecting that this was the case. To the extent that Tenant argues that
the Housing Authority conceded there were habitability issues in the unit, the
Housing Authority insists it was merely trying to appease Tenant so that it could
perform the necessary work without interference or “harassment.” Housing
Authority Brief at 18.
In ruling on this dispute, we are reminded of the metaphor of a dog
chasing its own tail. Tenant made claims that her unit was uninhabitable because of
mold, yet she obstructed the Housing Authority from assessing the situation and
making the necessary repairs. At the end of the day, Tenant’s uncooperative and
obstreperous conduct resulted in her own undoing. Our exhaustive review of the
record shows that Tenant did not prove she had legitimate grounds to abate her rent.
Thus, we conclude the trial court correctly held that Tenant improperly withheld rent
in violation of the lease agreement.
C. Trial Court’s Order of Possession
Tenant’s final issue focuses on the trial court’s direction that, in the
event Tenant failed to vacate the premises as set forth in its order, the Housing
Authority could seek an order of possession for [Tenant’s] premises . . . from the
Office of [the MDJ].” Trial Court’s Verdict, 6/14/23, R.R. at 99-102. Citing Section
23
503(b) of The Landlord and Tenant Act of 1951 (Landlord Tenant Act),10 Tenant
argues that a judgment for possession cannot be enforced by an order; rather, the
proper procedure is to seek a writ of possession.11 Notably, the Housing Authority
10
Act of April 6, 1951, P.L. 69, as amended, added by the Act of July 6, 1995, P.L. 261,
No. 36, 68 P.S. §250.503(b). Section 503 states:
(a) On the day and at the time appointed or on a day to which the
case may be adjourned, the [MDJ] shall proceed to hear the case.
If it appears that the complaint has been sufficiently proven, the
[MDJ] shall enter judgment against the tenant:
(1) that the real property be delivered up to the landlord;
(2) for damages, if any, for the unjust detention of the demised
premises; and
(3) for the amount of rent, if any, which remains due and unpaid.
(b) At the request of the landlord, the [MDJ] shall, after the fifth day
after the rendition of the judgment, issue a writ of possession
directed to the writ server, constable or sheriff commanding him
to deliver forthwith actual possession of the real property to the
landlord and to levy the costs and amount of judgment for
damages and rent, if any, on the tenant, in the same manner as
judgments and costs are levied and collected on writs of
execution. This writ is to be served within no later than forty-
eight hours and executed on the eleventh day following service
upon the tenant of the leased premises. Service of the writ of
possession shall be served personally on the tenant by personal
service or by posting the writ conspicuously on the leased
premises.
(c) At any time before any writ of possession is actually executed,
the tenant may, in any case for the recovery of possession solely
because of failure to pay rent due, supersede and render the writ of
no effect by paying to the writ server, constable or sheriff the rent
actually in arrears and the costs.
11
The trial court did not address this issue, reasoning that because Tenant remained in
possession of the unit, the issue was moot.
24
concedes that the trial court erred in attempting to streamline the possession process
by instructing the MDJ to order possession of the unit at the request of the Housing
Authority rather than requiring it to follow the procedures set forth in the Landlord
Tenant Act.
We agree that the trial court erred in ordering that the Housing
Authority could immediately recover possession of Tenant’s unit by presenting the
MDJ with the trial court’s order and we reverse the trial court in this respect. We
reiterate that the Housing Authority must follow the procedures set forth in the
Landlord Tenant Act in order to recover possession of the premises.
VI. CONCLUSION
This Court does not take eviction proceedings lightly. Regrettably, our
comprehensive review of the record in this case leads us to conclude that the trial
court did not err in denying Tenant’s appeal. Accordingly, we affirm the order of
the trial court in all respects, apart from the directive that the requirements of the
Landlord Tenant Act can be disregarded. In that respect, the order of the trial court
must be reversed.
MICHAEL H. WOJCIK, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Housing Authority of :
Lackawanna County : CASES CONSOLIDATED
:
v. : No. 215 C.D. 2024
: No. 512 C.D. 2024
Denise Schnars, :
:
Appellant :
ORDER
AND NOW, this 5th day of February, 2025, the September 18, 2023
order of the Court of Common Pleas of Lackawanna County (trial court) is
AFFIRMED in all respects, with the exception of the directive that the Housing
Authority of Lackawanna County (Housing Authority) may acquire immediate
possession of Denise Schnars’ apartment unit. To the extent the trial court ordered
that the requirements of The Landlord and Tenant Act of 1951, Act of April 6, 1951,
P.L. 69, as amended, 68 P.S. §§250.101-250.603, could be disregarded, the order is
REVERSED. The Housing Authority may recover possession of the premises by
following the procedures outlined in The Landlord and Tenant Act of 1951.
__________________________________
MICHAEL H. WOJCIK, Judge