LT - self-help eviction - injunction - immediate and irreparable harm

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023)

From the opinion---

The trial court found that evidence demonstrating all the elements of a preliminary injunction was shown except for the first element requiring “immediate and irreparable harm [defined as] injury for which damages can only be estimated by conjecture and not by an accurate pecuniary standard or cannot be adequately compensated by an award of monetary damages.” City of Allentown v. Lehigh Cnty. Auth., 222 A.3d 1152, 1160 (Pa. Super. 2019) . . . . “In order to meet this burden, a plaintiff must present concrete evidence demonstrating actual proof of irreparable harm.” Id. (citation omitted). 

Where there is a real property interest, the loss of that interest constitutes irreparable harm because each parcel of  real estate is unique. See Peters v. Davis, 231 A.2d 748 (Pa. 1967), stating: 

The aggrieved property owner’s right is absolute. However hard his acts might be regarded; he asks the court for the enforcement of a legal right of a positive character with respect to land which it is conceded was wrongfully taken from him. He is  entitled to a decree. The rule in such a case is founded on sound reason. If damages may be substituted for the land, it will amount  to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights. The amount of land involved does not change the situation. Here is a wrongful invasion of a positive right to real property. If a property owner deliberately and intentionally violates a valid express restriction running with the land or intentionally ‘takes a chance’, the appropriate remedy is a mandatory injunction to eradicate the violation. 

Id. at 752 (citation omitted).

Our Supreme Court has also held that, “In light of the unique and intrinsic value of land, interference with the plaintiff’s contractual rights to ownership of that land must be deemed irreparable harm.” New Eastwick Corp. v. Philadelphia Builders Eastwick Corp., 241 A.2d 766, 770 (Pa. 1968). Additionally, regarding possession of a leasehold interest, “[t]here is substantial common-law authority that the leasing of property is identical to  the sale of the premises.” Com., by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 822 (Pa. 1974) (citation omitted). 

 

LT - self-help eviction is not allowed

A commercial tenant that was evicted by self-help measures is entitled to a preliminary injunction restoring possession because (1) the Landlord-Tenant Act provides the “complete and exclusive system in itself” to obtain the eviction of tenants and (2) the loss of a leasehold interest in real estate constitutes irreparable harm.  Fraport Pittsburgh v. Allegheny County Airport Authority, No. 974 WDA 2022 (Pa. Super. May 9, 2023).

 

Thank you Brandon Copeland for bringing this case to my attention.

 

“Not only should a preliminary injunction be issued because money

damages cannot compensate Fraport for loss of its leasehold interest, but it

was also an error for the trial court not to issue a preliminary injunction due

to ACAA’s self-help by the improper use of the Allegheny County Police to

advance its commercial interests to evict Fraport.

 

Because a landlord/tenant relationship existed, ACAA was required to

utilize the procedures set forth in the Landlord Tenant Act of 19519

to lawfully evict10 Fraport. The Landlord Tenant Act is a comprehensive regulatory

scheme governing the landlord and tenant relationship. See Stonehedge

Square Ltd. P'ship v. Movie Merchants, Inc., 715 A.2d 1082, 1085 (Pa.

1998). It “sets up the procedure whereby a landlord may repossess [the]

premises if he has a right to evict the tenant.” Warren v. City of

Philadelphia, 115 A.2d 218, 221 (Pa. 1955). The Landlord Tenant Act states

that all other inconsistent acts are repealed and that “[i]t is intended that

this act shall furnish a complete and exclusive system in itself.” 68

P.S. § 250.602 (emphasis added).

 

***

 

Regarding self-help, while the Landlord Tenant Act provides that it is the

“complete and exclusive system in itself” to obtain the eviction of

tenants, surprisingly, no Pennsylvania appellate decision has addressed the

issue of the appropriateness of a landlord’s use of self-help, but the courts of

common pleas which have addressed this issue have consistently held self-

help is not available to evict a tenant. See e.g., O'Brien v. Jacob Engle

Foundation, Inc., 47 Pa. D. & C.3d 557, 558–59 (Cumberland Cty. 1987)

(noting that self-help should not be used where judicial procedures, like the

Landlord Tenant Act, are available); Lenair v. Campbell, 31 Pa. D. & C.3d

237, 241 (Philadelphia Cty. 1984) (“Upon reviewing the [Landlord Tenant Act]

in its entirety, it becomes apparent that self-help eviction is not a remedy

under any circumstances. . . . [T]he legislature clearly expressed its intention

that the Act be the sole source of rights, remedies and procedures governing

the landlord/tenant relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d

444, 453 (Crawford Cty. 1981) (“A landlord desirous of seeking repossession

of his leased premises from his tenant for nonpayment of rent must do so

either by bringing an action under the Landlord and Tenant Act [], and the

related Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by

bringing an action in ejectment.”); Williams v. Guzzardi, 875 F.2d 46, 52 n.

13 (3d Cir. 1989) (analyzing pertinent Pennsylvania law). Moreover, under

the Master Lease, the ACCA limited itself to seeking only remedies at law and

equity and not to engage in self-help, even if it was permissible. See Master

Lease at 46, § 12.04).

 

UC - voluntary quit - firm offer of other employment

Cortez v. UCBR – Cmwlth. Court – May 30, 2023 – unreported memorandum opinion**

 

https://www.pacourts.us/assets/opinions/Commonwealth/out/776CD22_5-30-23.pdf?cb=1

 

“A claimant who voluntarily terminates his employment has the burden of proving that a necessitous and compelling cause existed.” Solar Innovations, Inc. v. UCBR., 38 A.3d 1051, 1056 (Pa. Cmwlth. 2012). Our Court has held that the receipt and acceptance of a firm offer of employment constitutes cause of a necessitous and compelling nature. Id. A firm offer of employment is one that contains the specific conditions of employment, such as wages, hours, duties, and a starting date. Baron v. UCBR., 384 A.2d 271, 272 (Pa. Cmwlth. 1978). “The offer of employment, however, must be definite, and the claimant must act prudently with regard to his employer.” N. Huntingdon, 450 A.2d at 769. While “the receipt and acceptance of a firm offer of employment does constitute termination for cause of a necessitous and compelling nature . . . [t]he mere possibility of obtaining another job is insufficient to establish that employment was terminated for good cause.” Solar Innovations, 38 A.3d at 1056-57 (emphasis added). 

In determining whether the claimant had a firm offer of work justifying his voluntary quit, our case law instructs that the operative date is the date the claimant resigns, not the claimant’s last day of work. See N. Huntingdon, 450 A.2d at 770 (looking to the terms of the claimant’s offer of employment “at the time [the c]laimant tendered his resignation” to determine if the offer was, in fact, definite) (emphasis added); UCBR. v. Pa. Power & Light Co., 351 A.2d 698, 700 (Pa. Cmwlth. 1976) (concluding that, based on the circumstances surrounding his offer of employment at the time the claimant submitted his notice of resignation, the test for necessitous and compelling cause was met); see also Lane v. UCBR. (Pa. Cmwlth., No. 576 C.D. 2014, filed Oct. 21, 2014), slip op. at 2-4 (affirming the denial of UC benefits where “[t]he Board found that [the] ‘claimant ha[d] not credibly established that he had a firm offer of other employment at the time he quit’” and where “‘[t]he claimant admit[ted] that he tendered his resignation notice without having a start date for the other employment’”) (quoting the Board’s decision) (emphasis added).

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

UC - late appeal - when nunc pro tunc allowed

Amin v. UCBR  - May 2023 - unreported

https://www.pacourts.us/assets/opinions/Commonwealth/out/773CD22_5-9-23.pdf?cb=1

Section 501(e) of the UC Law provides that a party has 21 (formerly 15) days to appeal a referee’s decision to the Board. 43 P.S. § 821(e). The

Department’s associated regulation calculates the deadline for the appeal of a UC determination from the date the decision was delivered personally or placed into the mail. 34 Pa. Code § 101.82. If an appeal is not timely filed, the determination becomes final, and the Board does not have the requisite jurisdiction to consider the matter. Hessou v. Unemployment Comp. Bd. of Rev., 942 A.2d 194, 197-98 (Pa. Cmwlth. 2008) (citing Darroch v. Unemployment Comp. Bd. of Rev., 627 A.2d 1235 (Pa. Cmwlth. 1993)). An appeal filed even one day after the appeal period is untimely. Hessou, 942 A.2d at 198 (citing Dumberth v. Unemployment Comp. Bd. of Rev., 837 A.2d 678 (Pa. Cmwlth. 2003) (en banc)). The Board may consider an untimely appeal only in limited circumstances. Hessou, 942 A.2d at 198 (citing Unemployment Comp. Bd. of Rev. v. Hart, 348 A.2d 497 (Pa. Cmwlth. 1975)). A claimant seeking to establish the right to an untimely appeal bears a heavy burden, because the statutory time limit for appeals is mandatory. Hessou, 942 A.2d at 198 (citing Blast Intermediate Unit No.

17 v. Unemployment Comp. Bd. of Rev., 645 A.2d 447 (Pa. Cmwlth. 1994)). To satisfy his burden, a claimant must show fraudulent behavior or manifestly wrongful or negligent conduct by the administrative authority or non-negligent conduct beyond the claimant’s control that caused the delay. Hessou, 942 A.2d at 198 (citingBass v. Commonwealth, 401 A.2d 1133 (Pa. 1979)). “[F]ailure to file an appeal within fifteen days, without an adequate excuse for the late filing, mandates dismissal of the appeal.” Hessou, 942 A.2d at 198 (quoting U.S. Postal Serv. v. Unemployment Comp. Bd. of Rev., 620 A.2d 572, 573 (Pa. Cmwlth. 1993)) (additional quotation marks omitted).

whistleblower law - prima facie case - concrete evidence v. subjective evidence

Javitz v. Luzerne County, Pa. Supreme Court – May 5, 2023 – reported, precedential

 

https://www.pacourts.us/assets/opinions/Supreme/out/J-49-2022mo%20-%20105527876223594181.pdf?cb=1

 

 

whistleblower law (a) Persons not to be discharged.--No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act. 43 P.S. § 1423(a). 3 

The Commonwealth Court recognized that to establish a prima facie claim under the Whistleblower Law, a plaintiff must establish “(1) a protected report of wrongdoing, (2) by a public body, and (3) a causal connection between the report and her termination.” Javitz v. Luzerne Cnty., 115 C.D. 2020, 2021 WL 3028160, at *6 (Pa. Commw. July 19, 2021) (unpublished disposition), appeal granted, 267 A.3d 482 (Pa. 2021). 

The Whistleblower Law is “chiefly a remedial measure” that aims to promote openness in governmental operations and governmental compliance with the law. O’Rourke, 778 A.2d at 1202. It achieves these goals by protecting employees from adverse employer action following a report of actual or suspected violation of federal, state or local law; protecting employees who participate in hearings, investigations, or court proceedings regarding employer misconduct; and providing remedies for employees and penalties against employers for actions that violate its terms. Bailets v. Pa. Tpk. Comm’n, 123 A.3d 300, 307 (Pa. 2015); see also 43 P.S. § 1421, 

Section 4 of the Whistleblower Law provides a cause of action, allowing that “[a] person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.” Id. § 1424(a). 

To establish a prima facie case of a violation of Section 3(a), an employee must establish “by a preponderance of the evidence that, prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” Id. § 1424(b). In the case of alleged retaliatory termination, the employee must show a causal connection between the report of wrongdoing and the termination. Bailets, 123 A.3d at 306 

The causation requirement was first articulated in Gray v. Hafer, 651 A.2d 221 (Pa. Commw. 1994), aff’d per curiam, 669 A.2d 335 (Pa. 1995). . . . . the Commonwealth Court explained, at the pleading stage, such an employee must allege a connection between the report of waste or wrongdoing and the termination: 

To make out a cause of action under the Whistleblower Law by one who, as part of his or her regular job duties, files reports of waste or wrongdoing based on wrongdoing outside the governmental entity that he is charged with seeking out, that person must make more than a general statement that a report was filed and, within a given amount of time, the employee was fired as a result. An employee who has been terminated based on a filed report and wants to base his or her complaint on their employer’s violation under the Whistleblower Law must specify how their employer is guilty of waste and/or wrongdoing. They must also show by concrete facts or surrounding circumstances that the report led to their dismissal, such as that there was specific direction or information they received not to file the report or there would be adverse consequences because the report was filed. Id. (emphasis added).

Four years later, this Court adopted this causation standard. Golaschevsky, 720A.2d at 759. 

Quoting directly from Gray, this Court stated that to establish the causal connection for a claim of retaliatory termination under the Whistleblower Law, an employee “must show by concrete facts or surrounding circumstances that the report of wrongdoing ... led to the [] dismissal, such as that there was specific direction or information received not to file the report or that there would be adverse consequences because the report was filed.” Id. at 759 (internal quotations omitted) (emphasis added) (quoting Gray, 651 A.2d at 225).

Thus, in Golaschevsky, the Court held that a plaintiff’s prima facie case for causation may be established by use of either “concrete facts or surrounding circumstances” but not by the employee’s conclusory perception of how others treated him after making a report of alleged wrongdoing. Id. at 759-60. 

When considered in the context of the evidence adduced by the employee, it is clear that the requirement for “concrete facts or surrounding circumstances” to establish a causal connection means that the whistleblower plaintiff cannot rely on his or her perception of the facts to support a conclusion that the employer engaged in antagonistic conduct after the report. Instead, the plaintiff must prove the concrete facts or surrounding circumstances from which the factfinder can draw the inference that the employer’s conduct was antagonistic. 

Golaschevsky stands for the proposition that a plaintiff cannot rely on self-serving conclusions of an antagonistic post-report workplace and subsequent discharge to establish a prima facie case of causation. 

The Commonwealth Court’s wholesale classification of this evidence as Javitz’s “subjective perception” is wrong. The only item of evidence properly characterized as “subjective perception” evidence is her characterization of the “rude behavior of her supervisors.” 

Evidence of pre-report performance praise  and the post- report relocation of her office, restriction of her participation in union meetings and contract negotiations, and changes in the delegation of responsibilities is evidence of facts, not perception, upon which an inference of post-report antagonism and causation could be based. In its summary of Javitz’s evidence, the Commonwealth Court neglected to include the additional evidence of post-reporting antagonism that she, as the human resources director, was denied access to personnel files that were locked away and not given a key to access them, that she was told for the first time to do the filing for the office, that Lawson instructed the District Attorney not to pursue an investigation into the report, that Parsnik ignored all of her inquires as to what action was being taken as a result of her report, and that she was not provided a reason for her termination, even after requesting it. This is “concrete evidence” offered in support of establishing a causal connection. Javitz argues in her brief that she produced evidence of facts supporting an inference of a pattern of post-reporting antagonism culminating in her discharge,20 and we agree that the Commonwealth Court erred in concluding that it was instead merely her perception that the conduct was antagonistic. 

For this reason, we conclude that the Commonwealth Court erred and misapplied the law. Accordingly, we vacate its order and remand for further proceedings consistent with this opinion 

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