Geibel, G. v. Smith, H. ( 2018 )

J-S75020-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GRETCHEN GEIBEL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HARRY SMITH AND DESIREE :
HASSELL :
: No. 506 WDA 2017
:
APPEAL OF: DESIREE HASSELL :
Appeal from the Order Entered March 30, 2017
In the Court of Common Pleas of Mercer County
Civil Division at No(s): 2016-1498
BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 06, 2018
Desiree Hassell appeals, pro se, from the judgment of possession
entered March 30, 2017, in the Mercer County Court of Common Pleas,
regarding Gretchen Geibel’s property located at 309 Lunn Boulevard, Farrell,
Pennsylvania. Hassell raises three issues on appeal, challenging (1) whether
the parties’ contract provided for a recovery of funds, (2) whether she received
due process; and (3) whether the trial court was biased. For the reasons
below, we affirm.
The facts underlying this appeal are summarized by the trial court as
follows:
[] Desiree Hassel[l], along with her live-in boyfriend, Harry
Smith, had entered into an Article of Agreement on July 25, 2013
to purchase a house from [] Gretchen Geibel, and the property at
309 Lunn Boulevard, Farrell, Mercer County, Pennsylvania.
[Hassell] agreed to purchase the property for $50,000.00 by
J-S75020-17
making monthly payments of $600.00 per month commencing
August 15, 2013 and on the first day of each succeeding month
thereafter for 18 months at which time the princip[al] balance
would be due. [Hassell] was also obligated to pay all utilities, real
estate taxes, insurance, and maintenance of the premises.
[Hassell] took occupancy of the property upon executing the
Article of Agreement and remained thereafter and still remains in
this home.
It is uncontested that [Hassell] stopped making payments
on March 1, 2015 when $325.00 was paid to [Geibel]. [Geibel]
then continued to pursue the monthly payments and eventually
gave a 30 day notice to vacate the premises.
[Hassell] failed to cure the default and/or vacate the
premises and [Geibel] filed a Complaint in Ejectment on June 10,
2016 at which time [Hassell] was behind by almost $13,000.00.
[Geibel] sought a monetary judgment as well as a judgment for
possession of the premises.
This matter was assigned to the undersigned judge as the
case manager and the Court met with the parties for an initial
status conference on August 16, 2016 at which time [Geibel]
appeared with her attorney and [Hassell] appeared pro se. The
parties entered into settlement discussions at this off the record
conference and the Court entered a Case Management Order. The
case was then scheduled for the January 2017 trial list for a non-
jury trial and a pre-trial conference on December 28, 2016. The
Court also established a discovery deadline of October 17, 2016
and directed [Geibel’s] attorney to provide [Hassell] a
spreadsheet itemizing all of the monetary damages alleged as well
as an amortization schedule. [Hassell] was ordered also to file an
answer to the complaint by September 15, 2016.
The parties did not engage in discovery and [Geibel] filed a
Motion for a Summary Judgment that was scheduled for argument
on February 6, 2017 and the trial was continued generally pending
resolution of the motion. On February 6, 2017, the Court granted
the summary judgment motion as to Harry Smith and he was
ordered to vacate the premises by March 12, 2017. Notably,
Harry Smith who was also pro se in this matter did not file an
appeal from the February 6, 2017 Order but is believed to still be
residing in the subject house. In addition, on February 6, 2017
[Hassell] appeared again pro se and the parties reached an
agreement embodied in an Order dated February 6, 2017 wherein
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[Hassell] agreed to an Order granting possession of the property
to [Geibel] and [Hassell] agreed to vacate the premises by
midnight of March 12, 2017, unless she paid the sum of $3,650.00
to [Geibel] by February 16, 2017 and commenced paying $650.00
on the 15th day of the months of March, April and May. The Court
scheduled a review conference for May 30, 2017. The February
6, 2017 Order also directed that a stay would be granted
automatically for possession in [Geibel] if [Hassell] paid the funds
as set forth above.
[Geibel] filed a Motion for Judgment for Possession on March
17, 2017 on the basis that [Hassell] had not complied with the
February 6, 2017 agreed upon Order by paying $3,650.00 by
February 16, 2017. [Geibel’s] motion also averred that [Hassell]
was granted an extension to April 2, 2017 to vacate the premises
so long as she paid the sum of $1,300.00 to [Geisel] and allowed
[Geisel] to inspect the premises. [Hassell] paid the $1,300.00 but
inspection of the home did not occur.
[Hassell] appeared again before the Court with [Geisel] and
her attorney on March 24, 2017 for a hearing on the Motion for
Judgment for Possession and after a hearing the Court granted
the Motion for Judgment for Possession and gave possession of
309 Lunn Boulevard to [] Geibel, and gave [Hassell] until midnight
of April 2, 2017 to vacate the premises. [Hassell] did not object
to this Order. Harry Smith was likewise evicted. The Prothonotary
entered judgment for possession on March 30, 2017.
Trial Court Opinion, 7/24/2017, at 1-3. This timely appeal followed.1
As noted supra, Hassell purports to raise three issues on appeal. First,
she argues there was “no affirmation of a contact, or agreement for monies
payable past the expiration” of the parties’ agreement. Hassell’s Brief at 7.
She maintains her final payment was made on March 1, 2015, and the contract
did not include a “carryover clause.” Id. at 8. Therefore, Hassell insists
____________________________________________
1 On April 3, 2017, the trial court ordered Hassell to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Hassell
complied with the court’s directive, and filed a concise statement on April 25,
2017.
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Geibel’s lawsuit “requesting possession, along with damages for amounts not
covered under contract or agreed to, should have been disallowed.” Id.
Second, Hassell insists she was denied due process because she did not
receive proper notice of Geibel’s request for repossession of the property. See
id. at 9. She contends that whether the contract is viewed as a
landlord/tenant agreement or an installment land contract, “specific notice,
due process, is required to be given prior by the seller/landowner requesting
court assistance in reclaiming property.” Id.
Lastly, Hassell contends the trial court judge was biased against her
because (1) the judge and Geibel discussed the fact they had used the same
home builder, and (2) the judge presided over a criminal prosecution against
Harry Smith. See id. at 11-12.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court thoroughly addressed and
properly disposed of Hassell’s claims in its opinion. See Trial Court Opinion,
7/24/2017, at 4-8 (finding (1) recusal was not necessary under the facts of
this case, and, in any event, Hassell waived the claim by failing to move for
recusal in the trial court;2 (2) Hassell waived her claim that eviction was not
____________________________________________
2 See Trial Court Opinion, 7/24/2017, at 4-5. See also Reilly by Reilly v.
Se. Pennsylvania Transp. Auth., 489 A.2d 1291, 1300 (Pa. 1985) (“Once
the trial is completed with the entry of a verdict, a party is deemed to have
waived his right to have a judge disqualified, and if he has waived that issue,
he cannot be heard to complain following an unfavorable result.”).
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a proper remedy once the lease/agreement expired by failing to file
preliminary objections or move for summary judgment;3 (3) the Landlord
Tenant Act was not applicable to the present action, and therefore, Geibel was
not required to provide notice to vacate under the Act;4 and (4) in any event,
the March 24, 2017, order was “based upon an agreement reached between”
the parties).5 Accordingly, we rest upon its well-reasoned basis.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2018
____________________________________________
3 See id. at 5-6.
4 See id. at 6.
5Id. at 6. It merits emphasis that during the March 24, 2017, hearing, Hassell
conceded that because she did not pay the $3,650.00 due under the parties’
extended agreement, Geibel was “entitled to possession.” N.T., 3/24/2017,
at 9.
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PROTHOHOTARY
IN THE COURT OF COMMON PLEAS OF MERCER COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
· GRETCHEN GEIBEL,
Plaintiff
v. No. 2016 - 1498
HARRY SMITH and
DESIREE HASSEL,
Defendants
RULE 1925 OPINION1
Appellant, Desiree Hassel, along with her live-in boyfriend, Harry Smith, had
entered into an Article of Agreement on July 25, 2013 to purchase a house from
appellee, Gretchen Geibel, and the property at 309 Lunn Boulevard, Farrell, Mercer
County, Pennsylvania. Appellant agreed to purchase the property for $50,000.00
by making monthly payments of $600.00 per month commencing August 15, 2013
and on the first day of each succeeding month thereafter for 18 months at which
time the principle balance would be due. Appellant was also obligated to pay all
utilities, real estate taxes, insurance, and maintenance of the premises. Appellant
took occupancy of the property upon executing the Article of Agreement and
remained thereafter and still remains in this home.
I
This Opinion is untimely for several reasons. First, the parties informally advised the Court of
settlement talks which eventually fell through. Second, appellant had requested transcripts, was
advised of the modest cost, but never followed through with payment. Hence, the Court ordered
transcripts on its own (that were recently completed) for the March 24, 2017 and February 6, 2017
hearings.
It is uncontested that appellant stopped making payments on March 1, 2015
when $325.00 was paid to the appellee. Appellee then continued to pursue the
monthly payments and eventually gave a 30 day notice to vacate the premises.
Appellants failed to cure the default and/or vacate the premises and appellee
filed a Complaint in Ejectment on June 10, 2016 at which time appellant was behind
by almost $13,000.00. Appellee sought a monetary judgment as well as a
judgment for possession of the premises.
This matter was assigned to the undersigned judge as the case manager and
the Court met with the parties for an initial status conference on August 16, 2016 at
which time appellee appeared with her. attorney and appellant appeared pro se.
The parties entered into settlement discussions at this off the record conference and
the Court entered a Case Management Order. The case was then scheduled for
the January 2017 trial list for a non-jury trial and a pre-trial conference on December
28, 2016. The Court also established a discovery deadline of October 17, 2016
and directed appellee's attorney to provide appellant a spreadsheet itemizing all of
the monetary damages alleged as well as an amortization schedule. Appellant
was ordered also to file an answer to the complaint by September 15, 2016.
The parties did not engage in discovery and appellee filed a Motion for a
Summary Judgment that was scheduled for argument on February 6, 2017 and the
trial was continued generally pending resolution of the motion. On February 6,
2017, the Court granted the summary judgment motion as to Harry Smith and he
was ordered to vacate the premises by March 12, 2017. Notably, Harry Smith who
was also prose in this matter did not file an appeal from the February 6, 2017 Order
but is believed to still be residing in the subject house. In addition, on February 6,
2
2017 appellant appeared again pro se and the parties reached an agreement
embodied in an Order dated February 6, 2017 wherein appellant agreed to an Order
granting possession of the property to appellee and appellant agreed to vacate the
premises by midnight of March 12, 2017, unless she paid the sum of $3,650.00 to
appellee by February 16, 2017 and commenced paying $650.00 on the 15th day of
the months of March, April and May. The Court scheduled a review conference for
May 30, 2017. The February 6, 2017 Order also directed that a stay would be
granted automatically for possession in the appellee if appellant paid the funds as
set forth above.
Appellee filed a Motion for Judgment for Possession on March 17, 2017 on
the basis that appellant had not complied with the February 6, 2017 agreed upon
Order by paying $3,650.00 by February 16, 2017. Appellee's motion also averred
that appellant was granted an extension to April 2, 2017 to vacate the premises so
long as she paid the sum of $1,300.00 to the appellee and allowed appellee to
inspect the premises. Appellant paid the $1,300.00 but inspection of the home did
not occur.
Appellant appeared again before the Court with appellee and her attorney on
March 24, 2017 for a hearing on the Motion for Judgment for Possession and after a
hearing the Court granted the Motion for Judgment for Possession and gave
possession of 309 Lunn Boulevard to appellee, Gretchen Geibel, and gave
appellant until midnight of April 2, 2017 to vacate the premises. Appellant did not
object to this Order. Harry Smith was likewise evicted. The Prothonotary entered
judgment for possession on March 30, 2017.
3
Appellant, Desiree Hassel, then filed an appeal to the Superior Court on
March 31, 2017 which included a statement of the background of the case wherein
.
appellant admitted her last payment was March 1, 2015 and submitted a statement
of questions involved as well as her argument. An appeal conference was
scheduled for April 25, 2017 and appellant was directed to submit a Statement of
Errors Complained Of which was filed by appellant on April 25, 2017.
In her Statement of Errors Complained Of, appellant lists three primary
issues. One of those issues is whether or not this Court should have recused itself
from any proceedings in this matter for two reasons. First, that the Court had a
"casual acquaintances with the plaintiff." Appellee, Gretchen Geibel, was generally
known to the Court (although the Court had never met her) until the initial status
conference held August 16, 2016. The only connection between the Court and
appellee was that they had a general contractor in common who built both of their
homes several miles apart and the Court's general contractor had made reference
to her from time to time. This information was disclosed to all parties at the status
conference and none of the parties at any time indicated or requested that the Court
recuse. Furthermore, the Court felt no need initially or at any time thereafter to
recuse based upon that limited information about Ms. Geibel.
Appellant also argues that recusal should have occurred because this Court
also presided over her co-defendant/boyfriend's criminal case that was unrelated to
this civil lawsuit. In that criminal case, Harry Smith pied guilty to theft related
charges and the Court obtained information in a pre-sentence investigation report
prior to sentencing Mr. Smith on March 27, 2017. That information pertained to
appellant's dismissal from her employment with a "healthy severance package" and
4
a reference in the PSI that she had earned $88,000.00 the prior year. See
Transcript dated March 24, 2017, pages 4-5.
On March 24, 2017 when appellant and appellee and her attorney were in
Court regarding the Motion for Judgment of Possession, this Court did address to
the appellant that information contained in the PSI which painted a more glowing
view of appellant's income and assets than she had been representing throughout
the civil lawsuit as the parties discussed settlements and reasons for non-payment
since 2015. Appellant took issue with the information and advised the Court that
the information was incorrect.
Once again the parties reached an agreement for the March 24, 2017 Order,
and appellant never requested that the Court recuse, nor did the Court feel
conflicted in any way based upon the PSI information and its limited prior
information about appellee. Furthermore, appellant has waived this issue by failing
to raise it at any time in this litigation.
Appellant next argues that the Court should not have allowed the suit to
proceed against her in ejectment with a request for damages of rental monies
claimed after the agreement expired. Unfortunately, appellant's legal education is
limited as is her knowledge of the varying nuances between articles of agreement
(land contracts) and the process of ejecting a person under that type of agreement
and suing for damages. She conflates the remedies in a lease with the remedies in
ejectment.
While there were times during the various conferences and arguments on
motions during this litigation that appellant mentioned issues of eviction pursuant to
leases that may have expired and/or land contracts that may have expired and the
5
proper remedies that may have been available, at no point did she file preliminary
objections raising these issues or a motion for summary judgment after the
completion of discovery challenging appellee's claims under appellant's arguments.
Hence, appellant has waived once again her right to raise this issue for the first time
on appeal.
Finally, appellant argues that the Court should not have allowed this lawsuit
to proceed without requiring evidence of the service of a notice to vacate under the
Landlord Tenant Act She argues that this would have been a due process
violation and that the Court should therefore not have permitted the entry of
judgment for possession. She also argues that the acceptance of money by the
appellee from her in March and April of 2017 would make judgment for possession
premature.
Once again, appellant is confusing the legal status of her relationship with the
appellee under the land contract. The Landlord Tenant Act is simply not applicable
to this situation and that action in ejectment was the appropriate procedure and
cause of action to pursue for appellee to regain possession of this house and
property. Thus, notice was not required to vacate under the Landlord Tenant Act.
Even if appellant is correct on any issue, her appeal on any of these issues
should nonetheless be denied because the March 24, 2017 Order is based upon an
agreement reached between appellant and appellee. Appellant represented to the
Court (as she had on previous occasions in this case) that she would make her
monthly payments, and on this particular occasion she had agreed at the February
6, 2017 argument on the summary judgment motion, to pay a lump sum of
6
$3,650.00 by February 16, 2017 and begin paying $650.00 per month." She also
agreed on February 6, 2017, as the Order of that date indicates, that possession of
the property was granted to Gretchen Geibel but that the possession provision was
stayed so long as appellant made her lump sum and monthly payments. The Court
properly scheduled a review conference for May 30, 2017 to monitor her compliance
with the February 6, 2017 agreed upon Order. Appellee at all times in the case
bent over backwards. to avoid the necessity of removing the appellant from the
home by giving her every opportunity to cure the default by demonstrating a
successful pattern of paying her monthly obligation. Appellee even went further
than the February 6, 2017 Order and made an additional agreement with appellant
thereafter giving her an extension.
Despite all of those efforts by the appellee, appellant continued to renege on
her agreements, resulting in the final agreement embodied in the March 24, 2017
Order granting a judgment of possession for the appellee but giving the appellant
the time she had requested (April 2, 2017) to vacate the property. Accordingly,
appellant's payment of the monthly payments for March and April of 2017 were
insufficient pursuant to the agreement reached between the parties rendering the
judgment for possession premature.
Simply stated, appellant and appellee continued throughout this case to
reach agreements to bring appellant in compliance with the Article of Agreement so
that she would not have to leave the property. Appellant continuously came up
with excuse after excuse, then entered into agreements that were embodied in the
2
See Transcript of February 6, 2017 hearing, page 5, where appellant was asked if the Order
dictated in her presence was acceptable, to which she responded "it is."
7
. ..
February 6 and March 24, 2017 Orders that were settlement agreements. Thus,
/
the Court properly entered a judgment for possession in favor of appellee that was
agreed upon if appellant did not fulfill her end of the agreements. This was done
not pursuant to any Court determination on a motion, but" as a consequence for
appellant's continual breach of various agreements reached to settle this matter.
Hence, the trial court respectfully requests that the Superior Court of Pennsylvania
enter an Order affirming the entry of judgment for possession of the property at 309
Lunn Boulevard, Farrell, Mercer County, Pennsylvania to appellee, Gretchen
Geibel.
BY THE COURT:
Date: July 24, 2017 J.
rmb
8