Brookside Apartments v. Heilman, M.

J-A22033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BROOKSIDE APARTMENTS REALTY, LLC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL HEILMAN AND KYLE HEILMAN,

Appellants No. 83 MDA 2015

Appeal from the Order Entered December 18, 2014

in the Court of Common Pleas of Lebanon County

Civil Division at No.: 2014-01069

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 04, 2015

Appellants, Michael and Kyle Heilman, appeal from the order, after a

bench trial, granting Appellee, Brookside Apartments Realty, LLC, 1

possession of their apartment in this landlord/tenant dispute. Appellants

assert that the eviction is discriminatory because Appellee denied their

reasonable accommodation requests. We conclude that the record supports

the trial court’s decision that Appellants failed to establish a reasonable

accommodation defense. Despite numerous accommodations by Appellee,

Appellants repeatedly breached their lease as well as the “house rules” of

the apartment complex. Accordingly, we affirm.

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*

Retired Senior Judge assigned to the Superior Court.

1

We have amended the caption to restore the full legal name of Appellee.

J-A22033-15

We take our facts and procedural history from the opinion of the trial

court and our independent review of the record.

Appellee Brookside operates an apartment complex which leases

Section Eight housing.2 (See Trial Court Opinion, 3/05/15, at 2). Kimberly

Ozella is the community manager for Brookside. Appellants Michael and

Kyle Heilman are father and son. (See id.). Both receive social security

disability payments. (See N.T. Trial, 12/16/14, at 61, 63). Appellants rent

an apartment from Appellee. Michael pays $227 a month for the two

bedroom apartment, out of his social security disability payment. The

remainder of the rent is subsidized by the United States Department of

Housing and Urban Development (HUD). (See id. at 60; see also

Appellants’ Brief, at 6). Michael has lived at Brookside for over twenty-

years, although not all in the same apartment. The current lease is dated

December 1, 2008. The lease provided for an initial term of one year. After

that, the lease continued on a month-to-month basis.

At trial, Michael, fifty-four, testified that he has a spinal injury,

breathes with the assistance of a medical oxygen apparatus, and has tumors

in his thyroid and right lung. (See N.T. Trial, 12/16/14, at 61). He has

chronic pain. (See id. at 62).

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2

Section 8 of the United States Housing Act of 1937, provides housing at

reduced costs to low income families. See 42 U.S.C.A. § 1437-§ 1437k.

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Kyle, twenty-five, suffers from a learning disability. (See Trial Ct. Op.,

at 8). Besides his comprehension problems he has physical pain from a

childhood leg fracture, apparently aggravated by an excessive weight

problem. (See id. at 8-9). Nevertheless, both Michael and Kyle testified

that Kyle is able to pick up clothing off the floor, take out the trash, put food

back in the refrigerator, and wash dishes in the sink; he vacuums

“practically every day.” (Id. at 8) (quoting N.T. Trial, at 76; see also id. at

75-76, 85). Michael testified that both he and Kyle worked really hard to

clean up. (See N.T. Trial, at 66). Ms. Ozella, the Brookside manager, and

Appellant Michael each testified that she is aware that both Appellants have

disabilities. (See N.T. Trial, at 49, 63; see also Trial Ct. Op., at 7).

On April 16, 2014, Appellee served a notice on Appellants to vacate

within thirty days. The notice identified thirty-two separate violations of the

lease and apartment house rules, dating back to 2000 and up to March of

2014.3 The majority involved failed housekeeping inspections. These

violations included storage of garbage on the balcony, causing an odor and

attracting insect infestations, and verbal abusiveness to property

management staff. (See Trial Ct. Op., at 3-5). The court noted that Ms.

Ozella testified that Michael verbally abused her from his balcony, calling her

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3

Although there were undisputed violations prior to 2000, they were not

included in the current notice to vacate. (See N.T. Trial, at 12; Trial Ct. Op.,

at 4).

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a “bully” and an “asshole” in front of her staff as well as other tenants. (Id.

at 5; see also N.T. Trial, at 23).

The infractions also included non-payment of rent, City of Lebanon

code violations, failure to cooperate with recertification, refusal to permit

entry to property management for inspection, refusal (by threats) to permit

the entry of contractors for carpet installation, loose storage of firearms and

ammunition (and, apparently, gun powder), and the prohibited storage of a

flammable liquid in a gas can on the balcony. (See Trial Ct. Op., at 3-4).

On the afternoon before the scheduled eviction proceeding in

magisterial district court, counsel for Appellants faxed Appellee’s community

manager, Ms. Ozella, a request that the complaint be withdrawn and the

eviction stayed, and asking for “a reasonable accommodation for

housekeeping issues.” (Appellants’ Brief, Appendix A, Letter from Jillian

Copeland, Esq., MidPenn Legal Services, to Kimberly E. Ozella, Community

Manager, Brookside Apartments, 5/27/14, at unnumbered page 2). Aside

from the request to discontinue the eviction action, the request for a

reasonable accommodation consisted essentially of a proposal for a

procedure of itemized inspections and re-inspections. (See id.).

Ms. Ozella gave the letter to counsel for Appellee, who responded the

same day. In her faxed reply, counsel declined to withdraw the eviction

complaint, noting, inter alia, that the apartment had been condemned by the

City of Lebanon, and that Ms. Ozella had already attempted, repeatedly, to

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assist Appellants in the past. (See id. at Appendix B, Letter from Magdalene

C. Zeppos, Esq. to Jillian Copeland, Esq., 5/27/14).

For example, she gave them a couch and a lockable cabinet for their

firearms, helped them arrange outside help to clean up, and made at least

two offers to move Appellants without charge to a new apartment, both

refused. (See id.). The record supports (and notwithstanding some

generalized denials, Appellants do not substantially dispute) the finding that

despite past promises to reform, they eventually repeated their prior

behavior and committed the same or similar violations. (See e.g., N.T.

Trial, at 45; 64, 71-72, 76).

The magisterial district court found in favor of Appellee. (See Notice

of Judgment, Brookside Apts. v. Heilman, 6/06/14). Appellants appealed

to common pleas court. While serving a copy of the notice of appeal,

counsel for Appellants renewed the request for a reasonable

accommodation, again outlining a scheme of inspection, itemization and re-

inspection. This time counsel added a request for a new apartment. (See

Appellants’ Brief, at Appendix C, Letter from Jillian Copeland, Esq., to

Magdalene C. Zeppos, Esq., 6/06/14, at unnumbered page 2).

After a bench trial on December 16, 2014, the trial court awarded

judgment in favor of Appellee. (See Order, 12/18/14). Notably, on the

relations between Ms. Ozella and Appellant Michael, the trial court found the

testimony of Ms. Ozella to be credible, and the testimony of Appellant

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Michael, not. (See N.T. Trial, at 125). Appellants did not file post-verdict

motions. This timely appeal followed.4

On appeal, Appellants present three questions for our review:

1. Did the [c]ourt err as a matter of law by finding that

[Appellants] are not entitled to a [r]easonable [a]ccommodation

because there is no nexus between their disabilities and the

housekeeping deficiencies alleged by [Appellee]?

2. Did the [c]ourt err as a matter of law by finding that

[Appellee’s] prior efforts to “accommodate” [Appellants’]

housekeeping problems negated its obligation to respond to

[Appellants’] [r]easonable [a]ccommodation requests of May 27,

2014 and June 6, 2014?

3. Did the [c]ourt err as a matter of law when it concluded

that [Appellee’s] duty to promptly respond to a [r]easonable

[a]ccommodation request is only triggered if the requested

accommodation is unclear?

(Appellants’ Brief, at 4) (some capitalization omitted, internal quotation

marks in original).

Appellants argue that they were twice denied a reasonable

accommodation under 42 U.S.C.A. § 3604 of the federal Fair Housing Act, 42

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4

The trial court stayed the order to vacate, pending appeal. (See Order,

1/12/15). Professing an inability to discern the basis for the trial court’s

decision, Appellants’ counsel filed a “general” statement of errors─which

nevertheless included six separate claims of trial court error─on February 5,

2015. ([Appellants’] Statement of Errors, 2/05/15, at 1); see also

Pa.R.A.P. 1925(b)(4)(vi). Appellants “reserve[d] the right [sic] to file an

amended or supplemental [s]tatement as needed,” but did not do so.

([Appellants’] Statement of Errors, 2/05/15, at 1). The trial court filed an

opinion on March 5, 2015. See Pa.R.A.P. 1925(a).

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U.S.C.A. §§ 3601-3619.5 (See Appellants’ Brief, at 10-11). They maintain

that pursuit of eviction “[w]hen a tenant is entitled to a [r]easonable

[a]ccommodation” is discriminatory and the termination of the lease is

invalid “as a matter of law[,]” citing Douglas v. Kriegsfeld Corp., 884 A.2d

1109, 1126 (D.C.C.A. 2005) (en banc).6 (Id. at 11). They assert that there

is substantial evidence in the record to show that that trial court failed to

apply the law properly. (See id.). We disagree.

Our standard of review is well-settled:

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.

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5

The Fair Housing Act (FHA) is the short title for Title VIII of the Civil Rights

Act of 1968. The Fair Housing Act was amended by the Fair Housing

Amendments Act of 1988, § 6, 42 U.S.C.A. § 3604(f) (1994 & Supp. V 1999)

(FHAA). Section 504 of the Rehabilitation Act prohibits discrimination

against otherwise qualified individuals with disabilities in any program

receiving federal financial assistance. See Rehabilitation Act of 1973 § 504,

29 U.S.C.A. § 794(a) (2000). For an academic discussion of reasonable

accommodation issues, see Jennifer L. Dolak, The FHAA’s Reasonable

Accommodation & Direct Threat Provisions As Applied to Disabled Individuals

Who Become Disruptive, Abusive, or Destructive in Their Housing

Environment, 36 IND. L. REV. 759 (2003).

6

Douglas was a divided decision from the District of Columbia Court of

Appeals, with two judges joining the authoring judge, two judges concurring

and four judges dissenting. See Douglas, supra, at 1144. In Lebanon

Cnty. Hous. Auth. v. Landeck, 967 A.2d 1009, 1012 n.5 (Pa. Super.

2009), a panel of this Court, finding a lack of Pennsylvania authority,

adopted (without further discussion or explanation) Douglas’ five-prong test

for a reasonable accommodation defense under the Fair Housing Act. The

panel noted that the trial court had also applied the five prong test. The trial

judge in Landeck is also the trial judge in this case. See Landeck, supra

at 1009; (see also N.T. Trial, at 123; Appellee’s Brief, at 6 n.1).

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We must 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 factfinder. 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.

Landeck, supra at 1012 (citation and quotation marks omitted).

In addition to Appellants’ heavy reliance on Douglas, supra, and to a

lesser extent, Landeck, we also note their frequent citation to cases from

other state and federal jurisdictions as well.

At the outset we observe that it is well-settled that this

Court is not bound by the decisions of federal courts, other than

the United States Supreme Court, or the decisions of other

states’ courts. See Trach v. Fellin, 817 A.2d 1102, 1115 (Pa.

Super. 2003), appeal denied sub nom. Trach v. Thrift Drug,

Inc., 577 Pa. 725, 847 A.2d 1288 (2004). “We recognize that

we are not bound by these cases; however, we may use them

for guidance to the degree we find them useful and not

incompatible with Pennsylvania law.” Id.

Eckman v. Erie Ins. Exch., 21 A.3d 1203, 1207 (Pa. Super. 2011).

Similarly, “we note that decisions rendered by the Commonwealth Court are

not binding on this Court.” Beaston v. Ebersole, 986 A.2d 876, 881 (Pa.

Super. 2009) (citation omitted).

Here, Appellants’ three questions all assign error “as a matter of law.”

(Appellants’ Brief, at 4). To the extent the issues on appeal implicate

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questions of law our standard of review is de novo, and our scope of review

is plenary. See Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa. 2004).

We further note that the Douglas court observed, “[w]e recognize

that cases involving requests for ‘reasonable accommodation’ are ‘highly

fact-specific, requiring case-by-case determination[.]” Douglas,

supra at 1121 (citations and footnote omitted) (emphasis added).

In this appeal we confirm from independent review of the record, and

as asserted by Appellee, that Appellants failed to file post-trial motions.7

(See Appellee’s Brief, at 3, 4-5). Appellee maintains that Appellants thus

waived all issues for appeal. (See id. at 5). We agree.

A litigant has ten days from a trial court’s adjudication to file post-trial

motions. See Pa.R.C.P. 227.1(c)(2); see also Chalkey v. Roush, 805 A.2d

491, 496 (Pa. 2002) (“Under Rule 227.1, a party must file post-trial motions

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7

Noting the failure to file post-trial motions, this Court issued an order

directing Appellants to show cause why this appeal should not be quashed.

(See Rule to Show Cause Order, 2/23/15). Appellants did not respond.

Nevertheless, in consideration of the perceived possibility that post-trial

motions were not required in this case under the provisions of Pa.R.A.P.

311(a)(2), (addressing attachments, custodianships, receiverships or similar

matters), this Court sua sponte discharged the show cause order per curiam

and referred the issue to this merits panel. (See Order, 3/25/15). We

recognize that we could quash this appeal for lack of jurisdiction. See

Rappaport v. Stein, 520 A.2d 480, 484 (Pa. Super 1987). However, in

view of the evolving positions already taken by this Court, and in the interest

of judicial economy, we decline to quash. Quashal would, in all likelihood,

merely generate another round of appeals. Nevertheless, pursuant to the

mandate of the referral order, we will consider the question of waiver. (See

Order, 3/25/15).

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at the conclusion of a trial in any type of action in order to preserve claims

that the party wishes to raise on appeal.”) (emphasis added); Lane Enter.,

Inc. v. L.B. Foster Co., 710 A.2d 54 (Pa. 1998) (“If an issue has not been

raised in a post-trial motion, it is waived for appeal purposes.”).

In their reply brief, Appellants concede that the procedure employed

by their counsel did not conform to the requirements of the Pennsylvania

Rules of Civil Procedure. (See Appellants’ Reply Brief, at 10). Nonetheless,

they assert that their filing of a court-ordered statement of errors under

Pennsylvania Rule of Appellate Procedure 1925(b) “served the same

function” as post-trial motions pursuant to Pa.R.C.P. 227.1(c)(2).8 (Id.).

We disagree.

Appellants cite no supporting authority for this claim of procedural

equivalence. In fact, the only authority they cite at all on this issue is

Coyne v. Cnty. of Allegheny, 566 A.2d 378 (Cmwlth. Ct. 1989), a

Commonwealth Court case not binding on this Court.9 Notably, in Coyne,

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8

We note the anomaly that counsel for Appellants purported to identify the

trial court’s errors only in general terms, because of a stated inability to

discern the basis for the court’s decision, (see [Appellant’s] Statement of

Errors, 2/05/15, at 1), yet, on appeal, argues in effect that the general

statement was sufficiently specific to serve as a substitute for post-trial

motions.

9

See Beaston, supra at 881; see also Citizens’ Ambulance Serv. Inc.

v. Gateway Health Plan, 806 A.2d 443, 447 (Pa. Super. 2002), appeal

denied, 819 A.2d 546 (Pa. 2003) (“We note that while decisions of the

(Footnote Continued Next Page)

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exceptions, treated by the trial court and accepted by the Commonwealth

Court as post-trial motions, were filed, albeit eleven days late. See id. at

379.10 The Commonwealth Court reasoned that “[b]ecause the trial court

addressed the merits of the issue raised in the post-trial motion, it is

preserved for appellate review.” Id. at 380. Here, concededly, Appellants

did not file post-trial motions at all.

In any event, our own caselaw leaves no doubt that Appellants’

argument is erroneous. In Diamond Reo Truck Co. v. Mid-Pac. Indus.,

Inc., 806 A.2d 423 (Pa. Super. 2002), this Court held that “the filing of a

1925(b) statement does not excuse the failure to file post-trial motions and

does not revive or preserve issues that are waived for failure to file post-trial

motions.” Id. at 429.

Appellants acknowledge the holding in Diamond Reo, but attempt to

distinguish it, based on the trial court’s purported affirmance of its original

order. (See Appellants’ Reply Brief, at 8-9; see also Order, 3/05/15). In

that transmittal order, forwarding the order, opinion, and certified record for

_______________________

(Footnote Continued)

Commonwealth Court may be persuasive, they are not binding on this

Court.”) (citation omitted).

10

Even more notably, the decision of the Coyne case in 1989 preceded by

thirteen years our Supreme Court’s establishment of an “unequivocal rule,”

applicable in both law and equity, to file post-trial motions in Chalkey,

supra, in 2002. Chalkey, supra at 496. Appellants offer no argument why

their unsupported analogy and a procedurally distinguishable Commonwealth

Court case should prevail over the later express holding of our Supreme

Court.

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this Court’s review, the trial court included language which on its face

claimed to affirm its own prior order. (“[W]e hereby affirm our [o]rder dated

December 16, 2014.”). (Order, 3/05/15).

Appellants argue, in effect, that because the court reviewed its own

decision, after consideration of the statement of errors, and affirmed, their

statement of errors was the functional equivalent of post-trial motions.

(See Appellants’ Reply Brief, at 9). We disagree.

At the outset, we are constrained to acknowledge that the trial court’s

choice of language was inartful. Under Pennsylvania law, a trial court does

not affirm its own decisions on appeal. Nevertheless, an objective reading of

that imprecise phrase in total context confirms beyond serious objection that

the trial court correctly understood its role to be one of explaining the

reasons for its decision to this Court, pursuant to Pa.R.A.P. 1925(a). (See

Trial Ct. Op., at 25: (“We now turn this case over to the Superior Court of

Pennsylvania for review. We will enter an order consistent with the

foregoing.”)).

Furthermore, Appellants concede that the claim of trial court self-

affirmance exceeds the authority provided by our Rules of Appellate

Procedure. (See Appellants’ Reply Brief, at 9) (“By specifically affirming its

prior Order, the trial court stepped outside of the authority granted to it by

the Rules of Appellate Procedure[.]”). Therefore, by their own reasoning and

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admission, any such act by the trial court would be ultra vires, and a legal

nullity.

Finally, on this issue, we note that Appellants’ effort to distinguish

Diamond Reo based on the self-affirmance argument is unsupported by

reference to any caselaw, statutory or other authority whatsoever for its

novel interpretation. Appellants’ claim of an exception is unsupported and

without merit. Accordingly, all of Appellants’ issues are waived.

Nor would they merit relief on any other basis.

In their first claim, Appellants assert that the trial court erred “as a

matter of law” by finding that there was no “nexus” between their disabilities

and the housekeeping deficiencies identified by Appellee. (Appellants’ Brief,

at 4, 18). This claim does not present a reviewable issue.

Preliminarily, we observe that, in a rather meandering and unfocussed

argument, Appellants fail to set forth where the trial court committed this

asserted error. (See Appellants’ Brief, at 18-27). Accordingly, they fail to

comply with Pa.R.A.P. 2119(c) (“If reference is made to the pleadings,

evidence, charge, opinion or order, or any other matter appearing in the

record, the argument must set forth, in immediate connection therewith, or

in a footnote thereto, a reference to the place in the record where the

matter referred to appears[.]”). Also, Appellants fail to set forth where their

allegation of error was raised or preserved. (See Appellants’ Brief, at 5-9);

see also Pa.R.A.P. 2117(c), Pa.R.A.P. 2119(e).

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On independent review, we find only a single passing reference to

“nexus” by Appellants’ counsel in her final argument. (N.T. Trial, at 118).

Furthermore, Appellants failed to raise this claim in their Rule 1925(b)

statement of errors. (See [Appellants’] Statement of Errors, 2/05/15 at 1-

2). Consequently, the trial court did not address it. (See Trial Ct. Op, at 1-

25). Appellants’ claim would be waived for this reason as well. See Cobbs

v. SEPTA, 985 A.2d 249, 256 (Pa. Super 2009) (holding issue not included

in statement of errors is waived).11

Finally, on this claim, we note that on appeal Appellants fail to develop

a “nexus” argument on the merits, supported by pertinent authority. (See

Appellants’ Brief, at 18-27). To the contrary, except for the initial statement

of the claim, the word “nexus” never even appears in Appellants’ first

argument.12 (See id.).

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11

We recognize that Appellants’ counsel filed a general statement of errors,

pursuant to Pa.R.A.P. 1925(b)(4)(vi), claiming to be unable to discern the

basis of the trial court’s decision. It is true that the trial court did not

explain its original order in an accompanying opinion. Nevertheless, counsel

was able to raise six specific assertions of error. Counsel did not seek leave

to file a supplemental statement after the court explained its reasoning in its

Rule 1925(a) opinion. In fact, the trial court opinion never mentions

“nexus.” We therefore conclude that, in the totality of circumstances,

counsel failed to take appropriate steps to raise and preserve the “nexus”

issue, and the immunity from waiver provided at Pa.R.A.P. 1925(b)(4)(vii)

does not apply.

12

It does not appear in Landeck or Douglas, either.

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Instead, Appellants assert, in effect, that they were entitled to a

reasonable accommodation defense to eviction under the five-prong test

announced in Douglas as adopted in Landeck:

To establish a reasonable accommodation defense under

the Fair Housing Act, the tenant must demonstrate that (1) she

suffered from a handicap (or disability), (2) the landlord knew or

should have known of the disability, (3) an accommodation of

the disability may be necessary to afford the tenant an equal

opportunity to use and enjoy her apartment, (4) the tenant

requested a reasonable accommodation, and (5) the landlord

refused to grant a reasonable accommodation.

Landeck, supra at 1012 (quoting Douglas, supra at 1129) (quotation

marks omitted). (See Appellants’ Brief, at 27) (“The fact that [Appellants]

require assistance in order to clean their apartment and that this assistance

is necessary because of their disabilities, is sufficient to meet the

requirements of the third prong of the Reasonable Accommodation test.”).

“No question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116. The

connection between a supposed “no nexus” determination and meeting the

prongs of the Douglas test (which never even mentions “nexus”) is not self-

evident, and, we suspect, non-existent.

In any event, it is not the role of this Court to develop an argument for

an appellant, or to scour the record to find evidence to support an argument.

See J.J. DeLuca Co. v. Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super.

2012). There is no justification in the rules for raising one question, and

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then arguing another. Even if it were not already waived, Appellants’ first

claim would be waived for these reasons as well.

In their second claim, Appellants assign error to the trial court’s

purported finding that Appellee’s prior efforts to accommodate their

housekeeping problems “negated” its obligation to respond to their current

reasonable accommodation requests. (Appellants’ Brief, at 4).

Once again, Appellants’ argument is meandering and unfocussed.

(See id. at 27-32). Once again, they fail to set forth where in the record

the trial court committed the alleged error. And once again, they fail to

reference the place in the record where their allegation of trial court error

was raised or preserved. (See id. at 5-9); see also Pa.R.A.P. 2117(c)

(“Statement of place of raising or preservation of issues.”); Pa.R.A.P.

2119(e) (“Statement of place of raising or preservation of issues.”).

Accordingly, Appellants have failed to show that they raised the

second issue in the trial court. Therefore, it is waived for this reason, too.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).

Furthermore, Appellants failed to raise this claim in their Rule 1925(b)

statement of errors. (See [Appellants’] Statement of Errors, 2/05/15 at 1-

2). Consequently, the trial court did not address it. (See Trial Ct. Op, at 1-

25). Appellants’ claim would be waived for this reason as well. See Cobbs,

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supra at 256. For all these reasons, Appellants’ second claim would be

waived, even if it were not waived already.

Moreover, it would not merit relief.

Appellants concede their prior “bad acts” as tenants. (Appellants’

Brief, at 30). They even concede that these acts might have warranted

eviction “in other circumstances.” (Id.). They do not dispute that there

were other eviction procedures commenced against them in the past. (See

N.T. Trial, at 25; id. at 124 (“numerous eviction notices”)).

Nevertheless, they argue that the trial court’s supposed finding that a

past course of conduct “justifie[d] a refusal to act on a present request” was

unsupported. (Appellants’ Brief, at 32). They conclude Appellee committed

“an obvious violation of the Fair Housing Act.” (Id.). We disagree.

First, the trial court never ruled that past conduct “negated”

Appellee’s obligation to respond. In fact, the trial court correctly notes, and

the record confirms, that Appellee, through counsel, did respond, promptly,

on the same day, to their request. (See Trial Ct. Op., at 21, see also N.T.

Trial, at 50). They responded no.

Secondly, Appellants offer no pertinent authority to support their claim

that the trial court was obliged to ignore their past course of conduct. (See

Appellants’ Brief, at 27-32). To the contrary, the authority which they do

present is inaccurately quoted and misleading.

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Purporting to quote from Commonwealth v. Drumheller, 808 A.2d

893 (Pa. 2002), cert. denied, 539 U.S. 919 (2003), Appellants suggest that

evidence of their prior bad acts going back to 2000 should have been ruled

inadmissible as too remote, “since ‘remoteness relates not merely to the

passage of time, but to the undermining of reasonable inferences due to the

likelihood of supervening factors.’” (Appellants’ Brief, at 30). This passage

never appears in Drumheller. What Drumheller actually said was:13

In Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d

186 (1977) . . . [t]he Commonwealth introduced evidence of the

prior acts of abuse [bruises on the body of the decedent (the

defendant’s wife) as much as seventeen months before her

death] to show that the death of the defendant’s wife was more

likely intentional than accidental. The defendant countered that

this evidence was too remote in time to be relevant. We

rejected the defendant’s argument concluding that, although

“the testimony may involve events so remote from the date of

the crime that it has no probative value . . . no rigid rule can be

formulated for determining when such evidence is no longer

relevant.” Id. at 191. In Commonwealth v. Petrakovich,

459 Pa. 511, 329 A.2d 844 (1974), we held that “[a]lthough

evidence of (prior occurrences) which is too remote is not

properly admissible . . . it is generally true that remoteness

of the prior instances of hostility and strained relations affects

the weight of that evidence and not its admissibility.” Id. at

850 (emphasis added) (internal citation omitted); Ulatoski, 371

A.2d at 191.

Drumheller, supra at 905 (first emphasis added; second and third

emphases added in the original). Not only do Appellants misquote

Drumheller, they mis-characterize its conclusion.

____________________________________________

13

In the interest of clarity, and to avoid the risk of confusion, we quote the

pertinent passage substantially in full.

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Overall, rather than develop their negation argument, Appellants

abandon their second claim and instead argue that Appellee did not respond

promptly to the request for a reasonable accommodation. (See Appellants’

Brief, at 28 (citing “undue delay” and failure to respond to second request)).

Appellants concede that Appellee, through counsel, refused to

postpone the eviction proceeding. (See id.). However, they claim, in effect,

that Appellee had some obligation to respond further. They conflate the

refusal to respond further with an “obvious violation of the Fair Housing Act.”

(Id. at 32).

Furthermore, Appellants offer no pertinent authority for their

proposition that Appellee was prohibited from considering a prior, continuing

course of conduct, repeated violations, promises to reform and failure to do

so, in reaching its decision to pursue eviction (again). (See id. at 29-32).

We conclude it was well within the discretion of the trial court to

consider such evidence. As noted by the trial court, testimony at trial

confirmed that Appellants were the subjects of numerous prior proceedings

for eviction, which were apparently withdrawn or otherwise discontinued

after they promised to reform their behavior. (See Trial Ct. Op., at 19).

The trial court further explained:

Although the record indicates that [Appellee] did not grant the

requests [for reasonable accommodation] in the letters [from

Appellants’ counsel], the record is replete with evidence that

[Appellee] has attempted to accommodate [Appellants] for years

prior to these letters. Many of the requests made in the letters

were attempted in the past, but were unsuccessful. Ms. Ozella

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testified that there was prior litigation involving a previous notice

to quit where a previous manager came up with an agreement

with [Appellants] that they were going to keep the apartment,

they were going to come in on a timely manner for

appointments, and they were going to correct some of the

problems with their behavior. Ms. Ozella testified that this did

not happen so she tried to work with them by taking a different

approach when they failed an inspection with the City of

Lebanon.

(Id.).

Appellants fail to show that Appellee was required to ignore their prior

bad acts, promises, failures, and refusals to cooperate in the consideration

of the current request for yet another accommodation. We conclude that

there is no such obligation, even under federal law, Douglas, and Landeck.

To the contrary, in Douglas, the majority supported its decision by noting:

Significantly, moreover, counsel for the tenant was unequivocal

in conceding that if the requested delay, coupled with

government intervention, “didn’t work out”—meaning that if the

apartment became filthy again (presumably because the

government failed to continue its cleaning services on the

tenant’s behalf), the landlord would have an acknowledged

remedy, eviction. According to counsel, a reasonable

accommodation, once given, need not be repeated if the

tenant or her government protector failed to comply with

its terms.

Douglas, supra at 1117-18 (emphasis added).

Even Douglas recognized that the landlord’s response to repeated

requests for reasonable accommodations need not go on forever. Here, as

the trial court observes: “The problem was not [Ms. Ozella’s]

accommodation; the problem was [Appellants’] follow through.” (Trial Ct.

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Op. at 10). Appellants’ second claim, even if it were not waived, would not

merit relief.

In the third claim, Appellants assign error to the trial court for

concluding that Appellee’s duty to respond promptly to a request for

reasonable accommodation is only triggered if the request is unclear. (See

Appellants’ Brief, at 4).

Once again, Appellants fail to identify what ruling of the trial court they

are objecting to, or where they raised and preserved this claim. (See

Appellants’ Brief, at 32-37). That said, the citation at issue is to an

observation by the trial court in its Rule 1925(a) opinion. (See Appellants’

Brief, at 36 (citing Trial Ct. Op., at 21)). The trial court correctly quotes a

passage from Douglas, cited in Landeck:

If, as the Authority asserts, it was unclear about what

accommodation was being requested, it had a duty to “promptly

respond” to the Tenant’s request. Douglas, 884 A.2d at 1122.

The Douglas court explains:

If the request is not sufficiently detailed to reveal the

nature of that request, the Act-as properly interpreted-

requires the landlord to ‘open a dialogue’ with the

tenant, eliciting more information as needed, to determine

what specifics the tenant has in mind and whether such

accommodation would, in fact, be reasonable under the

circumstances.

Id.

Landeck, supra at 1014 (emphases added).

Here, simply stated, Appellee (or its agent, Ms. Ozella, or counsel)

never claimed not to understand the accommodations Appellants were

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requesting. And it did respond promptly─by refusing to halt the eviction

process yet another time. Therefore, there was no need, under Landeck or

Douglas, to open a dialogue to elicit more information.

The “open a dialogue” issue only arose in Douglas because the

appellee in that case claimed as a defense that the request letter was too

vague. See Douglas, supra at 1124. In this case, misunderstanding of

the accommodations requested is not at issue. Appellee understood what

Appellants wanted. Appellants’ reliance on Douglas for their “open a

dialogue” argument is misplaced, lacks any other pertinent support, and

would fail on the merits, even if not waived.

We conclude that the trial court correctly ascertained the plain

meaning of the authority cited. Appellee had no duty to open a dialogue if it

understood what the request for accommodation was. It responded

promptly and unequivocally the first time to the request.

Appellants concede that a request for accommodation is not

reasonable if it would impose an undue financial or administrative burden on

the housing provider, or if it would fundamentally alter the nature of the

provider’s operations. (See Appellants’ Brief, at 33-34); accord, Douglas,

supra at 1120. We conclude that the record supports the trial court’s

finding, which accepted the testimony of Ms. Ozella, that dealing with

Appellants’ recurring violations posed serious difficulties for her management

of the complex. (See N.T. Trial, at 124).

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Appellants assert that they cleaned up their apartment after the

eviction notice, correcting many of the housekeeping violations previously

cited. They also reduced clutter by moving some of their belongings to

offsite storage, with the help of Michael’s sister. They appear to argue that

this obligated Appellee to “open a dialogue” after the second request. (See

Appellants’ Brief, at 32-37). We disagree.

First, Appellants offer no pertinent authority for their specific claim.

Secondly, they offer no argument that their clean-up efforts responded to

the numerous non-housekeeping violations. Instead, they maintain that any

questions about their ability to comply with the non-housekeeping

requirements required opening another dialogue.

Conspicuously missing from this argument, and the evidence at trial,

in stark contrast to Douglas and Landeck, is any showing that Appellants

sought to address the problems in compliance associated with their

respective disabilities, or that they had assembled a network of professional

support to assist them, not just sporadically, but in an ongoing effort to

meet their lease and “house rules” obligations.

Instead, as noted by the trial court, and supported by the record,

Appellants would repeatedly fail to comply with basic lease requirements,

and ignore notice violations until the threat of eviction loomed and they saw

the light. (See N.T. Trial, at 124, 126). Then they would “[get] serious,”

obtain extra help, resolve the problem and avert eviction. (Id. at 124).

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However, the evidence of record supports the inference that the help,

if it came at all, was more in the nature of a one-time clean-up, not a long-

term solution. Once a crisis abated, Appellants would eventually let things

slide, until the whole process repeated itself. Except for a brief indication

that Kyle was working with a youth services agency, there was no showing

of any provision for ongoing comprehensive support.14

This is not a situation where the reasonable accommodation requested

is a specific concession which will directly respond to a specific need arising

out of a disability, such as access to a handicapped parking space,

permission to maintain an assistance animal in a “no pets” apartment,

installation of guard rails, or assignment of a ground level apartment to

facilitate wheelchair access, or the like. Rather, Appellants seek a sort of de

facto general amnesty from their long history of housekeeping and other

violations, and carte blanche acquiescence to start the process all over

again. Even Douglas does not require that.

Cases involving requests for reasonable accommodation are highly

fact-specific, requiring case-by-case determination. See Douglas, supra at

1121. On independent review, we determine that the findings of the trial

____________________________________________

14

For example, in a brief unsupported reference, Appellants cited approval

for twelve hours of housekeeping services through the Lebanon County

Office of Mental Health. (See Appellants’ Brief, at 17). However, Appellants

do not explain what would happen when the twelve hour commitment was

exhausted.

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court are supported by competent evidence. Credibility determinations were

for the factfinder. We will not substitute our judgment for that of the trial

court. We discern no error in the trial court’s application of law.

The test we apply is whether, after due consideration of the evidence

which the trial court found credible, the trial court could have reasonably

reached its conclusion. We conclude it could, and we decline to disturb its

verdict. See Landeck, supra at 1012. Appellants’ claims are waived and

would not merit relief.

Order affirmed.

Judge Bowes joins the Memorandum.

Judge Jenkins files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/2015

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