Nitardy, J. & L. v. Chabot, M.

J-A32031-17

2018 PA Super 255

JOHN NITARDY AND LAURIE : IN THE SUPERIOR COURT OF

NITARDY : PENNSYLVANIA

:

:

v. :

:

:

MICHAEL CHABOT :

: No. 599 MDA 2017

Appellant

Appeal from the Judgment Entered March 7, 2017

In the Court of Common Pleas of Centre County Civil Division at No(s):

2014-4542

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER*, J.

OPINION PER CURIAM: FILED SEPTEMBER 14, 2018

Michael Chabot (“Landlord”) appeals from the judgment entered on

March 7, 2017, against him and in favor of John Nitardy and Laurie Nitardy

(collectively, the “Tenants”). We affirm the judgment in part, vacate in part,

and remand for proceedings consistent with this Opinion.1

In 2013, the Tenants needed a residence for their family of four and

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1 Landlord purports to appeal from the February 22, 2017 order denying his

post-trial motion instead of from the judgment entered on March 7, 2017.

Ordinarily, an appeal properly lies from the entry of judgment subsequent to

the trial court’s disposition of any post-trial motions, not from an order

denying a post-trial motion. Johnston the Florist, Inc. v. TEDCO Constr.

Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (en banc). However, the trial

court entered judgment on March 7, 2017, prior to Landlord’s filing of his

notice of appeal on April 4, 2017. Therefore, we have jurisdiction to address

the appeal on its merits. Id.

____________________________________

* Retired Senior Judge assigned to the Superior Court.

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two 80-pound Labrador Retriever dogs. The Tenants sought a relatively short-

term lease in anticipation of a then-upcoming job transfer for Mr. Nitardy.

Landlord owned a house that he wished to rent to a tenant until he was ready

to put the house on the market for sale. Landlord agreed to rent his house to

the Tenants. The parties entered into a written residential lease agreement,

drafted by Landlord, with a term from September 5, 2013, through March 5,

2014 (the “Lease Agreement”). Prior to the end of the term, the parties

agreed to extend the Lease Agreement.

On June 19, 2014, the Tenants vacated the premises. Subsequently, a

dispute arose regarding alleged damages to the property and whether the

Tenants owed additional rent. After Landlord refused to return the Tenants’

security deposit, the Tenants filed a complaint against Landlord pursuant to

the Pennsylvania Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101–

250.602 (the “Act”).

Specifically, the Tenants claimed that Landlord violated Section 250.512

of the Act and breached the Lease Agreement by failing to return their security

deposit. Complaint, 12/16/2014, at ¶¶ 19-24, 25-29. The Tenants sought a

judgment against Landlord for double their security deposit, plus costs, post-

judgment interest, and attorneys’ fees.2

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2 Clause 19 of the Lease Agreement entitles the prevailing party to “recover

reasonable attorney fees and court costs” in “any action or legal proceeding

to enforce any part” of the Lease Agreement. Lease Agreement at ¶ 19.

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Landlord filed an answer with new matter and a counterclaim, alleging

that he was entitled to retain the security deposit because the Tenants caused

damage to the premises in excess of the deposit, plus the Tenants failed to

provide him with a new address in accordance with 68 P.S. § 250.512(e).

Answer and Counterclaim, 1/20/2015, at ¶¶ 31-38, 49-63.

Landlord further averred that the Lease Agreement terminated on July

5, 2014, not June 19, 2014, as the Tenants alleged, and the Tenants breached

the Lease Agreement by failing to pay him rent for the period between June

19, 2014 and July 5, 2014. Id. at ¶¶ 47, 61-62. Landlord sought a judgment

for $17,843.72, which represented the amount allegedly needed to repair the

property, unpaid rent, a late fee, and damages for loss of use of the property,

plus interest, costs of suit, and counsel fees.

After a bench trial, the trial court entered a verdict in the form of an

Opinion and Order on December 7, 2016. That verdict awarded the Tenants

$6,800 in damages plus $9,392.50 in counsel fees, and it awarded Landlord

$400 due to countertop damage that the Tenants admitted was their

responsibility. Landlord filed a motion for post-trial relief, which the trial court

denied on February 22, 2017. The trial court entered judgment on the

February 22, 2017.3

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3 Landlord filed his post-trial motion on December 19, 2017. Post-trial motions

must be filed within 10 days after the filing of the decision following a bench

trial. Pa.R.C.P. 227.1(c)(2). The tenth day fell on a Sunday, making the

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Landlord timely filed a notice of appeal. Both the trial court and Landlord

complied with Pa.R.A.P. 1925.

Landlord presents the following issues on appeal.

1. Did the trial court err in denying [Landlord’s] claim for rent and

a late fee by finding that the unambiguous term language of

the[Lease Agreement] had been modified [orally] when [the

Tenants] did not present clear and convincing evidence of the

alleged oral modification, and [Landlord] provided evidence and

testimony supporting his claim that the [Lease Agreement] had

not been modified?

2. Did the trial court err by concluding that [Landlord’s] list of

damages dated July 19, 2014[,] did not satisfy 68 P.S.§

250.512(a)…[?]

3. Did the trial court err by concluding that the 68 P.S. §

250.512(e) safe harbor did not apply to preclude [the Tenants’]

claims for return of the security deposit and for statutory damages

when the trial court also found that [the Tenants] did not provide

[Landlord] with new contact information until July 15, 2014, which

established that the [Tenants’] required notice of new address was

not given upon surrender and acceptance or termination, as

required by the clear language of 68 P.S. § 250.512(e)?

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deadline Monday, December 18, 2017. See Pa.R.Civ.P. 203(a) (“Whenever

the last day of any such period shall fall on Saturday or Sunday … such day

shall be omitted from the computation.”). Nonetheless, the Tenants did not

object to the untimely filing of Landlord’s post-trial motion. See generally

the Tenants’ Opposition to Landlord’s Motion for Post-Trial Relief, 1/5/2017.

As Landlord filed the post-trial motion while the trial court still had jurisdiction

over the matter, the Tenants did not object to the timeliness of the motion,

and the trial court decided the motion on the merits, we are permitted to

ignore the untimeliness of the post-trial motion. See Ferguson v. Morton,

84 A.3d 715, 719 (Pa. Super. 2013) (“[W]hen untimely post-trial motions are

filed within the thirty-day period that the trial court retains jurisdiction over

the case, and when the trial court decides those issues without objection by

an opposing party, we will treat the subsequent appeal as though the post-

trial motions were timely filed for purposes of issue preservation.”).

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4. Did the trial court err by denying most of [Landlord’s] claims

for damages for necessary property repairs, cleaning, and utility

bills given the substantial damages evidence presented by

[Landlord]…?4

Landlord’s Brief at 5-6 (trial court’s answers omitted).5

Standard/Scope of Review

Our standard of review in a non-jury trial is well established:

We must determine whether the findings of the trial court are

supported by competent evidence and whether the trial judge

committed error in the application of law. Additionally, findings of

the trial judge in a non-jury case must be given the same weight

and effect on appeal as a verdict of a jury and will not be disturbed

absent error of law or abuse of discretion.

Davis ex rel. Davis v. Gov’t Employees Ins. Co., 775 A.2d 871, 873 (Pa.

Super. 2001) (citations omitted).

Additionally, we are mindful that “leases are in the nature of contracts

and are thus controlled by principles of contract law, including the well[-

]settled rules of interpretation and construction.” Cusamano v. Anthony M.

DiLucia, Inc., 421 A.2d 1120, 1122 (Pa. Super. 1980).

“Interpretation of a contract, in this case a lease, poses a question of

law.” Charles D. Stein Revocable Trust v. General Felt Indus., Inc., 749

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4 In light of our disposition of Landlord’s fourth issue, we need not address

Landlord’s fifth issue.

5 We remind Landlord that Pa.R.A.P. 2116(a) requires appellants to state

concisely the issues to be resolved in the terms and circumstances of the case,

but without unnecessary detail. Pa.R.A.P. 2116(a). We have condensed

Landlord’s issues accordingly.

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A.2d 978, 980 (Pa. Super. 2000). “Our standard of review over questions of

law is de novo and to the extent necessary, the scope of our review is plenary

as this court may review the entire record in making its decision.” Kripp v.

Kripp, 849 A.2d 1159, 1164 n. 5 (Pa. 2004).

Oral Agreement to Modify the Lease

In his first issue, Landlord argues that the trial court erred by finding

that the parties orally agreed to end the Lease Agreement on June 19, 2014.

Landlord’s Brief at 23-29. Landlord argues that once the original lease term

ended on March 5, 2014, the term converted to month-to-month pursuant to

clause 4 of the Lease Agreement, making the ending date of the lease July 5,

2014. Therefore, Landlord contends that the Tenants owe him half of a

month’s rent, or $900, plus a $45 late fee. According to Landlord, although

the parties agreed that the Tenants would move out on June 19, 2014, he

never agreed that the Lease Agreement would end that same day. Id. at 27-

29. Landlord argues that the trial court erred by crediting the Tenants’

testimony over his and by relying on the Tenants’ testimony regarding the

modification without written documentation of the same. Id. at 24-25.

Clause 4 of the Lease Agreement provides, inter alia, that the initial

term of the lease ends on March 5, 2014 and then the term converts to a

month to month term:

The term of the rental will begin on September 5, 2013, and will

end on March 5, 2014. If [the Tenants] vacate [ the house] before

the term ends, [the Tenants] will be liable for the balance of the

rent for the remainder of the term. After the end of the term, the

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lease converts to a month-to-month term for up to four months,

which may be extended if approved.

Lease Agreement at ¶ 4.

Regarding rent, clause 5 states: “[The Tenants] will pay [Landlord] a

monthly rent of $1,800, which includes a $25 per pet fee, totaling $50,

payable in advance on the first day of each month….” Id. at ¶ 5. Clause 6

provides for a late fee up to $45 per month in the event of an untimely rent

payment. Id. at ¶ 6.

With respect to the lease term, the trial court determined that “credible

evidence demonstrated, in a clear and convincing manner, that the [p]arties

agreed to a modification of the duration and rent terms of the Lease

Agreement, and that [Landlord] agreed to accept payment of $900.00 as the

rent for the partial month of June [2014].” Trial Court Opinion and Order,

12/7/2016, at 7 (unnumbered; pagination supplied). Specifically, Mr. Nitardy

testified that the Tenants proposed a move-out date of June 19, 2014, which

would permit their children to finish the school year. According to Mr. Nitardy,

Landlord then:

agreed to rent the property to the Tenants through June 19, 2014,

and to accept $900.00, one-half of a full month’s rent, for

payment for the partial month of June. Email correspondence

[prior to the Tenants’ vacating] the property shows

communication between the parties tending to corroborate that

testimony. Furthermore, [Landlord] accepted [the Tenants’]

$900.00 check, which was tendered for the June [2014] rent, and

cashed it without any question or protest. It was not until after

friction developed between the parties regarding the security

deposit that [Landlord] claimed additional rent monies were owed.

Finally, the evidence demonstrated that [the Tenants]

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surrendered the property to [Landlord] on June 19, 2014, and that

[Landlord] accepted the surrender. [The Tenants] testified that

[Landlord] told them to leave a door unlocked when they left on

June 19[, 2014,] for his re-entry. [Landlord] returned to the

property on June 26, 2014, and had his father come to perform

work at the property on June 27, 2014.

Id. at 7 (unnecessary capitalization omitted). See also id. at 3-4.

The law is well settled that parties may modify a written lease

agreement by a subsequent oral agreement, and this modification may be

shown by words or conduct. Bonczek v. Pascoe Equip. Co., 450 A.2d 75,

77 (Pa.Super. 1982). For an oral modification to be valid, it must be based

upon valid consideration and proved by evidence that is “clear, precise, and

convincing.” Id. (citation omitted).

After reviewing the record, the briefs of the parties, and the applicable

law, we conclude that the trial court did not err or abuse its discretion in

determining that Landlord agreed to end the lease term mid-month. Prior to

the dispute arising regarding the security deposit, Landlord’s conduct

indicated his acquiescence to the Tenants’ ending the lease on June 19, 2014.

Further, the trial court was entitled to rely upon Mr. Nitardy’s testimony as

evidence of the oral modification and to discount Landlord’s testimony. “As

an appellate court, we cannot disturb the finding of the trial court on the

witnesses’ credibility.” Wallace v. Pastore, 742 A.2d 1090, 1095 (Pa. Super.

1999). Because the parties orally modified the Lease Agreement to have the

rental term end on June 19, 2014, we affirm the judgment insomuch as the

trial court properly declined to award back rent and a late fee to Landlord.

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Penalty for Failing to Provide “Written List of Any Damages”

Landlord next argues that the trial court erred by concluding that his

“written list of any damages” did not satisfy Section 250.512(a) of the Act.

We agree with the trial court.

The Landlord and Tenant Act specifically provides that a landlord shall

“within thirty days of termination of a lease. . . provide a tenant with a written

list of any damages to the leasehold premises for which the landlord claims

the tenant is liable.” 68 P.S. § 250.512(a)(emphasis added). When the

landlord delivers the “written list of any damages,” the landlord shall return

the security deposit less “the actual amount of damages to the leasehold

premises caused by the tenant.” Id. (emphasis added). If the landlord fails

to pay the difference between the security deposit and the “actual damages

to the leasehold premises,” the landlord shall be liable for double the amount

of the security deposit less actual damages to the leasehold premises. 68 P.S.

§ 250.512(c).

Since the Act requires that the landlord return the security deposit less

the “actual damages” to the property, the “written list of any damages” must

be specific enough so that the landlord can value the “actual damages” and

notify the tenant of the basis for deducting amounts from the security deposit.

In this case, the trial court found the “written list of any damages” that

Landlord provided to Tenants was too vague to constitute an appropriate

“written list of any damages.” In particular, the trial court found that a “vague

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list, without accompanying values as to each item, will not suffice.” Trial Court

Opinion, filed Dec. 7, 2016, at 9 (unpaginated).

We agree. According to the findings of the trial court and our review of

the record, on June 26, 2014, Landlord returned to the property for the first

time after the Tenants’ departure. Trial Court Opinion and Order, 12/7/2016,

at 4. On that same day, Landlord emailed the Tenants and, inter alia, updated

them regarding the status of his efforts to replace a piece of countertop that

Tenants had previously informed him that they had damaged. Id. Other than

a few minor issues, Landlord did not note any problems with the state of the

property. Id. See also Landlord’s Trial Exhibit D-3.

On July 15, 2014, Landlord sent the Tenants another email. Trial Court

Opinion, 12/7/2016, at 5. Landlord again updated them about the status of

the countertop repair, and told the Tenants that he was expecting the cost of

the repair to be less than $400. Id. Landlord also wrote,

I believe I’ve identified most of the damage to repair. I am still

working on fixing things, so I don’t know the total cost. I am

keeping the cost down by using less costly Craigslist labor where

I can, so there will be plenty of security deposit money to refund

to you, which I will do this week now that I know your address.

Landlord’s Trial Exhibit D-5 at 1.

Landlord closed the email with 27 bullet points listing items of damage.

Id. Other than the countertop, Landlord did not assign monetary value to any

item. Id.

Four days later, on July 19, 2014, Landlord emailed the Tenants again

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with an updated list of damages (“Updated List of Damages”) that included

more items with vague estimates of repairs. Trial Court Opinion and Order,

12/7/2016 at 5. Before listing the items and the cost of repairs, Landlord

wrote that he believed that Tenant was bullying Landlord, so Landlord was

increasing Tenant’s list of damages so that the damages consumed the entire

security deposit:

In light of your recent threats to me and you indicating an

unwillingness to abide by the agreement to remove all

traces of pet from the house, I’ve reconsidered my earlier

stance of going easy on you. I don’t respond well to what I see

as bullying. The repairs are ending up being more expensive than

I was first estimating and I found some additional problems in the

past few days. The repairs will consume your entire security

deposit. Below are repair estimates.

RR. 341a (emphasis added).

Later in the email, Landlord set forth repair estimates that Landlord

argues is a sufficient “written list of any damages” as required by Section

250.523(a). In particular, the Updated List of Damages stated:

Dog hair cleaning, smell removal, and attempt at foyer

repair using fillers $300.00

Wall damage repair, painting to cover up marks, handrail

repair, counter top repair $1,800

Light bulb $8.45

Lawn repair $34.81

AC filter $18.01

Chair repair $2.10

Foyer fix $900.00

Porch fix $900.00

Utility bill correction from estimates $91.00

Carpet repair: ?

Cabinet stains: ?

Shrub damage: ?

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Id. at 2 (bullet points and emphasis added).

Landlord argues that the trial court erred in requiring him to pay double

the amount of the security deposit because, according to Landlord, Landlord

provided the Tenants with a sufficiently specific “Written List of Any Damages.”

This list, however, contains several items in which Landlord gave a generalized

description of the damage and generalized estimates or no estimate at all.

These unspecified items demonstrate that Landlord failed to provide the

Tenants with “actual damages” within 30 days of vacating the premises.

Therefore, the trial court correctly found that Landlord failed to comply with

Section 250.512(a), and properly awarded Appellee double the amount of

Appellee’s security deposit less any actual expenses as provided in Section

250.512(c).

We remand this issue to trial court to determine whether Landlord has

established that, for each item listed on the Updated List of Damages: 1) the

item was actually damaged; and 2) the amount that Appellant listed to repair

such damage is reasonable. If the trial court finds that Landlord established

that an item was damaged and the amount listed is reasonable, the trial court

is to subtract that amount from the doubled security deposit and direct

Landlord to pay the remaining balance to the Tenants.

We note that since Landlord did not list the cost to repair the carpet,

cabinet and shrubs, Landlord has waived any claim to deduct from the security

deposit the cost to repair those items.

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Safe Harbor Provision

In his third issue, Landlord argues that because the Tenants did not

provide him with a forwarding address upon termination of the lease and/or

their departure from the property, he was entitled to keep the Tenants’

security deposit pursuant to subsection 250.512(e). Landlord’s Brief at 37-

39.

Subsection 250.512(e) states that “[f]ailure of the tenant to provide the

landlord with his new address in writing upon termination of the lease or upon

surrender and acceptance of the leasehold premises shall relieve the landlord

from any liability under [section 250.512,]” which is the section relating to

security deposits discussed supra. 68 P.S. § 250.512(e). The trial court

declined to apply this provision, stating that the parties remained in continual

email contact, the Tenants provided Landlord with a forwarding address on

July 15, 2014, and Landlord had the mailing information needed to comply

with the security deposit provisions of the Act in ample time to do so. Trial

Court Opinion and Order, 12/7/2016, at 11. Further, the court stated, “the

suggestion that [Landlord] did not return any of [the Tenants’] security

deposit because he did not have their forwarding address is belied by the

record in this case.” Id.

We see no basis to disturb the trial court’s ruling. The record supports

its factual findings. Further, in the lone reported case by this Court construing

subsection 250.512(e), we rejected a landlord’s attempt to use subsection

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250.512(e) as a shield when there was no evidence in the record indicating

that the failure to return the security deposit was due to the landlord’s not

knowing where to mail the deposit. Adamsky v. Picknick, 603 A.2d 1069,

1071 (Pa. Super. 1992) (“[W]e find the lack of notice argument is tenuous at

best since appellant’s reason for withholding the deposit was not because he

did not have appellees’ new address[;] rather, he withheld it because he

maintained there were damages for which he should be compensated.”).

Therefore, we hold that the trial court properly declined to apply subsection

250.512(e) in this case.

Landlord’s Counterclaim for Damages for Property Repairs and

Cleaning

In his fourth issue, Landlord argues the trial court erred by denying his

counterclaim for damages for property repairs and cleaning. Landlord’s Brief

at 39-52. In a bench trial regarding damages claimed by a landlord, “the trial

court is free to believe all, part, or none of the evidence presented, to make

all credibility determinations, and to resolve any conflicts in the evidence.”

Wallace, 742 A.2d at 1094 (Pa. Super. 1999). The Act places on the landlord

the burden of proof as to actual damages caused by a tenant to the leasehold

premises. 68 P.S. § 250.512(c).6

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6 We note that a landlord’s right, pursuant to the Lease, to require a tenant to

pay for damage to a property may be separate and distinct from a landlord’s

right to deduct amounts for damage from the security deposit pursuant to 68

P.S. § 250.512(a). If a landlord fails to meet the requirements of 68 P.S. §

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Turning to the parties’ Lease Agreement, clause 11 addresses the

Tenants’ maintenance responsibilities. It states that:

[the Tenants] will: (1) keep the premises clean, sanitary, and in

good condition[,] and, upon termination of the tenancy, return the

premises to [Landlord] in a condition identical to that which

existed when [the Tenants] took occupancy, except for ordinary

wear and tear … and (3) reimburse [Landlord], on demand by

[Landlord], for the cost of any repairs to the premises damaged

by [the Tenants] or [the Tenants’] guests or business invitees

through misuse or neglect.

***

[The Tenants have] examined the premises, including appliances,

fixtures, carpets, drapes, and paint, and [have] found them to be

a good, safe, and clean condition and repair, except as noted in

the Inspection Condition list.[7] The house should be

professionally cleaned by the [Tenants] after moveout. [The

Tenants are] expected to handle and pay for all minor or routine

maintenance tasks or supplies up to $100. Examples include:

changing batteries in smoke detectors, changing light bulbs,

cleaning up yard waste and leaves, cleaning up trash that gets

blown onto the property, replacing the furnace filter (typically

every three months, depending on the type of furnace filter),

replace fire extinguisher yearly, [and] kill[ing] insects that try to

enter the house.

Id. at ¶ 11.

Pursuant to clause 8 of the Lease Agreement, the parties agreed that

“[t]he cost of necessary cleaning, repairs or replacements shall be deducted

from the security deposit at termination of the lease and the remainder will

be refunded after the [Tenants have] vacated the premises, returned keys,

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250.512(a), he still has a claim pursuant to the Lease. He just cannot deduct

the amounts from the security deposit and must collect the amounts directly

from the tenant.

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and provided [Landlord] with a forwarding address.” Id. at ¶ 8. Finally, clause

14 is entitled “Pets” and states: “[The Tenants] will have the house

professionally cleaned after leaving. Evidence of any pet use should be cleaned

or fixed.” Id. at ¶ 14.

The trial court offered the following analysis regarding damage to the

Property:

At the time of trial, [Landlord’s] claimed property damages totaled

$7,705.73. With limited exception, the [trial court] concludes that

[Landlord] failed to meet his burden of proof with respect to any

recoverable damages in this matter. In some instances, the [trial

court] concludes that the “damages” claimed by [Landlord] qualify

as “ordinary wear and tear” for which the lease does not define

the term “Inspection Condition list.”

[Tenants were] not responsible under the Lease Agreement.

Examples include scuff marks on the walls, areas of worn paint,

and remnant pet hair in various areas. In other instances, based

on the testimony of all trial witnesses, the [trial court] is not

convinced that [the Tenants] left the [p]roperty in the state of

disrepair and uncleanliness claimed by [Landlord], or that [the

Tenants] caused the various items of claimed damage. In addition

to the above, the [trial court] notes that many of the labor

“invoices” submitted for claimed repairs listed lump sum amounts

for individuals who performed work for [Landlord] completely

unrelated to the alleged damages at issue as well as work related

to [Landlord’s] claimed damage in this case. Thus, the [trial court]

can only speculate as to costs associated with the items at issue,

and speculation is not a proper basis for an award of damages.

As to the limited exception noted above, there is no dispute that

[the Tenants] are responsible for the counter top damage, and

this item clearly does not qualify as ordinary wear and tear. [The

trial court] concludes that evidence at trial was sufficient to

establish reasonable repair costs for this item of $400.00.

Trial Court Opinion and Order, 12/7/2016, at 11-12 (citations omitted).

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Landlord contends he is entitled to $7,045 for labor and $660.73 for

supplies for repairs and cleaning he was required to undertake to address

various problems caused by the Tenants. Id. at 40-47. Landlord argues that

he produced evidence that the property was in good condition when he rented

it to the Tenants, but when Landlord entered the property following their

departure, “damage was immediately obvious to him.” Id. at 42. Landlord

argues that he met his burden of proof, because both he and his father

testified regarding work they performed on the property themselves and work

performed by a cleaner and laborer Landlord hired. Additionally, Landlord

points to the photographs he took that allegedly reflect damage to the

property caused by the Tenants.

In essence, most of Landlord’s argument is based upon a contention

that the trial court should have credited his testimony and that of his father

instead of the testimony of the Tenants and their witnesses. It is clear that

the trial court found the Tenants’ witnesses to be more credible than

Landlord’s witnesses. Specifically, the trial court credited the testimony of

Judy Lee, a professional housecleaner hired by the Tenants who cleaned the

house every other week during the lease term and performed a final cleaning

on the day the Tenants left the property. Trial Court Opinion and Order,

12/7/2016, at 4. According to Ms. Lee, the house was “clean and well cared

for” when she left, and, “with very limited exception, she did not observe any

of the damages” in the house claimed by Landlord. Id. The trial court also

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noted that the Tenants hired a professional carpet cleaner to clean the carpets

throughout the house upon their departure. Id. Further, it is apparent that

Landlord failed to convince the trial court that the Tenants caused most of the

damage and/or that the issues were as extensive as Landlord claimed.

Our review of the record demonstrates that the testimony at trial

supports the trial court’s conclusion. As discussed supra, we must defer to the

trial court as to matters of witness credibility. Wallace, 742 A.2d at 1095

(holding that the tenants sustained their burden of proof as to the return of

their security deposit, and that there was no merit to the landlord’s

counterclaim because the trial court found the tenants’ testimony to be more

credible than the landlord’s testimony). Thus, to the extent that the trial court

declined to award damages based upon credibility determinations, we discern

no abuse of discretion or error of law.7

However, for some other items, the trial court declined to award

damages based upon its conclusion that the damages qualified as ordinary

wear and tear for which the Tenants were not responsible pursuant to clause

____________________________________________

7 Landlord also fails to convince us that the trial court erred in its conclusion

that some of the evidence produced by Landlord required the trial court to

speculate as to the costs associated with the damages claimed by Landlord.

Landlord merely argues that he excluded all expenses unrelated to problems

caused by the Tenants, see Landlord’s Brief at 50, but it is clear that the trial

court did not believe him. Thus, we decline to disturb the trial court’s ruling

relating to speculative damages.

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11 of the Lease Agreement. In the examples the court listed regarding wear

and tear, the trial court included “remnant pet hair.” Trial Court Opinion and

Order, 12/7/2016, at 12.

Landlord argues that clause 14 relating to pets, not the clause 11

relating to the Tenants’ general maintenance responsibilities, applies to any

damages for repair or cleaning caused by the Tenants’ dogs. Landlord’s Brief

at 46. Thus, because the parties agreed that “any [e]vidence of … pet use

should be cleaned or fixed” by the Tenants, damages related to pet use cannot

constitute ordinary wear and tear.

We agree. It is well settled that when interpreting a contract, the

specific controls over the general. Southwestern Energy Prod. Co. v.

Forest Res., LLC, 83 A.3d 177, 187 (Pa. Super. 2013). Although the Tenants

are not responsible for ordinary wear and tear pursuant to clause 11, they are

responsible for fixing and cleaning evidence of pet use pursuant to clause 14.

Therefore, to the extent that the trial court found that Landlord established

that the Tenants’ dogs caused problems to the property, but it did not award

damages to Landlord based upon clause 11, the court erred in so doing. Thus,

we remand for the trial court to determine whether any of the damages it

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classified as wear and tear were caused by pet use that the Tenants failed to

clean or fix.8

Landlord’s Counterclaim for Damages for Utility Bills

Landlord contends that the Tenants were responsible for $298.73 for

utility bills that arrived after the lease ended, and the trial court erred by not

awarding damages for the unpaid utilities and not addressing such a claim in

its Opinion. Id. at 40, 50-51.9 Clause 9 of the Lease Agreement requires the

Tenants “to pay all utility and optional service charges, which include[] the

following: electricity, natural gas, water, sewage, trash pickup, mowing, snow

shoveling, TV, [i]nternet, phone. Cost for utilities that remain in [Landlord’s]

name will be invoiced monthly, separate from the rent payment.” Id. at ¶ 9.

____________________________________________

8 To the extent that the trial court also declined to award damages to Landlord

for evidence of pet use because Landlord’s damages were too speculative, we

do not disturb the trial court’s ruling.

9 In his brief, in addition to bills from gas, electric, sewer, and water

companies, Landlord argues clause 9 of the Lease Agreement requires the

Tenants to reimburse him for a bill from Total Lawn Care. Landlord’s Brief at

51. However, although clause 9 of the Lease Agreement requires the Tenants

to pay for bills from certain service providers and utility companies, Landlord

did not preserve in his post-trial motion a claim of error based upon the trial

court’s failure to award him damages for unreimbursed service provider bills

pursuant to clause 9. See Motion for Post-Trial Relief, 12/19/2016, at ¶ 29.

Therefore, Landlord has waived his claim relating to reimbursement of the

Total Lawn Care bill pursuant to clause 9. See Crespo v. Hughes, 167 A.3d

168, 181 (Pa. Super. 2017) (“Pa.R.Civ.P. 227.1 requires parties to file post-

trial motions in order to preserve issues for appeal. If an issue has not been

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

omitted).

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Landlord is correct that the trial court did not address specifically

Landlord’s claim for utilities in its order and opinion. The Tenants argue that

Landlord is not entitled to damages because some of the bills include periods

occurring past the lease termination date of June 19, 2014. The Tenants’ Brief

at 31. Based on the record before us, it is impossible for us to determine

whether the trial court neglected to consider Landlord’s claim for utilities or

simply declined to award damages. Further, if it is the latter, it is also

impossible for us to determine on what basis the trial court declined to award

damages. Therefore, on remand, we direct the trial court to make specific

findings as to whether Landlord is entitled to damages for unreimbursed

utilities pursuant to clause 9 of the Lease Agreement and the amount of those

unreimbursed utilities.

Conclusion

Based on the foregoing, we affirm the judgment in part, vacate in part,

and remand for proceedings consistent with this Opinion. On remand, the trial

court shall (1) determine which of the wear-and-tear problems were caused

by pet use that the Tenants failed to clean or fix; and (2) make specific findings

as to whether Landlord is entitled to damages for unreimbursed utilities

pursuant to clause 9 of the Lease Agreement. The trial court shall determine

the amounts of such damage.

Regarding the Updated List of Damages, the trial court shall determine

if Landlord established the damage and if the amount listed is reasonable. If

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so, the trial court shall deduct only these amounts from the doubled security

deposit.

We note that the Updated List of Damages includes damages caused by

the dogs and a “correction” for the utility bill. If the trial court finds that these

items and the costs meet the requirements of 68 P.S. § 250.512(a), then the

trial court shall deduct them, as well as any other items, from the doubled

security deposit. If, however, the trial court finds that Landlord is entitled to

reimbursement for these items, but not at the amounts listed in the Updated

List of Damage, the trial court shall not deduct the amounts from the security

deposit but shall instead enter a verdict in favor of Landlord for such amounts.

Finally, the trial court must determine if attorneys’ fees and court costs

are warranted pursuant to clause 19 of the Lease Agreement; however, since

Tenants have always admitted that they are responsible for the damage to

the countertop, the trial court should not consider that obligation in

determining which party is the “prevailing party” in this litigation.

Affirmed in part and vacated in part. Remand for proceedings consistent

with this Opinion. Jurisdiction relinquished.

Judge Ott joins the Opinion.

Judge Strassburger files a Concurring and Dissenting Opinion.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/14/2018

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