Judges Opinions, — July 6, 2016 10:00 — 0 Comments

Lebanon County Housing Authority v. Ramon Boyer No. 2014-02231

Civil Action-Law-Public Housing-Residential Lease Agreement-Grievance Procedures-Right to Hearing-Exceptions-Criminal Activity-Language of Lease Agreement

The Lebanon County Housing Authority served a Notice to Quit and a Notice of Proposed Termination of Lease Agreement upon Ramon Boyer, a tenant who had entered into a residual lease agreement at the Washington Arms apartment subsidized apartment complex that is managed by the Lebanon County Housing Authority based upon alleged violations of the terms of the lease agreement. Defendant requested a hearing pursuant to the grievance procedure contained in the Notice to Quit and Notice of Proposed Termination of Lease served upon him, and that request was denied by the Lebanon County Housing Authority. After proceedings before a magisterial district judge, the Lebanon County Housing Authority filed a Complaint in Ejectment against Defendant. At trial, Defendant contended that the Lebanon County Housing Authority erred by initiating legal proceedings against him after he had requested to proceed under the grievance process stated in the Notices served upon him.

1. Title 24 CFR § 966.50 et seq., directs public housing agencies to establish and to implement grievance procedures affording each tenant the opportunity for a hearing on a grievance. Section 966.51(a)(1) directs that public housing agency grievance procedures shall be applicable to all individual grievances as defined between the tenant and the public housing authority except for those provided in § 966.51(a)(2).

2. Section § 966.51(a)(2)(i) provides that a public housing agency may exclude from the public housing agency administrative grievance procedure any grievance concerning a termination of tenancy or eviction that involves any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the public housing agency, any violent or drug-related criminal activity on or off of the premises or any criminal activity that resulted in a felony conviction of a household member.

3. The lease agreement in the instant case defined criminal actively as an act that constitutes a violation of any penal provision of any federal, state or local law that threatens the health, safety or right to peaceful enjoyment of the premises by other tenants or employees, irrespective of whether there is an arrest or conviction.

4. The evidence presented at the trial did not establish that the conduct alleged as the basis for the violations of the lease agreement, forcefully touching another resident’s shoulder two (2) times with an open hand while the Defendant sat on a motorized scooter, constituted criminal activity that would allow the Lebanon County Housing Authority to bypass the required grievance process where the evidence presented was not consistent regarding the extent and force of Defendant’s contact against another resident, no criminal charges were filed against Defendant relating to the incident and criminal charges had been filed relating to an earlier incident involving Defendant in 2012 in which the Lebanon County Housing Authority did not seek to bypass the required grievance procedures.

L.C.C.C.P. No 2014-02231, Opinion by Samuel A. Kline, Judge, February 10, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No: 2014-02231

LEBANON COUNTY HOUSING AUTHORITY, Plaintiff,

v.

RAMON BOYER, Defendant.

ORDER

And now, to wit, this 10th day of February, 2016, upon consideration of the parties’ Proposed Findings of Fact, Proposed Conclusions of Law and attached legal memoranda, Plaintiff’s requested relief is DENIED. The Complaint in Ejectment is DISMISSED and this matter is REMANDED to follow the requested grievance process.

BY THE COURT:

SAMUEL A. KLINE, J.

APPEARANCES:

Donna Long Brightbill, Esq. for the Plaintiff

Paul C. Bametzreider, Esq. for the Defendant

ADJUDICATION, KLINE, J., February 3, 2016

Before the Court is the Plaintiff’s (hereinafter “Housing Authority”) Complaint in Ejectment against Defendant (hereinafter “Boyer”) seeking possession of the property.

FINDINGS OF FACT

Boyer and the Housing Authority entered into a residential lease agreement for an apartment at the Washington Arms apartment complex, on December 29, 2011. Notes of Testimony from Hearing on November 2, 2015, at 7, Exhibits 1 and 2 (N.T. __).

The Housing Authority is in charge of managing Washington Arms, a subsidized apartment complex. (N.T. 5-6).

Boyer is a resident at Washington Arms. (N.T. 5-6).

The lease agreement contains two sections. One section of the lease is a general form that all tenants receive when entering a lease with the Housing Authority and the other section of the lease is specific to the Housing Authority and Boyer relationship. (N.T. 7, Exhibits 1 and 2).

An incident occurred between Boyer and another resident of Washington Arms on October 24, 2014. (N.T. 8).

The Housing Authority hand delivered to Boyer a Notice to Quit and Notice of Proposed Termination of Lease for violating several sections of the lease, on October 30, 2014. The specific sections of the lease that were cited as having been violated are Sections 6.K, 6.L, 6.M, 6.X, and 6.Y (N.T. 11-12).

Section 6.K requires a tenant to conduct themselves in a manner which will not disturb the neighbors’ peaceful enjoyment of their accommodation and will be conducive to maintain the project in a decent, safe and sanitary condition. (N.T. 12-14, Exhibit 1).

Section 6.L requires the tenant to refrain from illegal, immoral or other activities which impairs the physical or social environment of the project. (N.T. 12-14, Exhibit 1).

Section 6.M requires tenants to act in a cooperative manner with neighbors and Housing Authority staff and refrain from acting or speaking in an abusive or threatening manner towards neighbors, Housing Authority representatives and Housing Authority Staff. (N.T. 12-14, Exhibit 1).

Section 6.X, also known as the One Strike and You’re Out section, states that criminal activity which threatens the health, safety or right to peaceful enjoyment of the premises is a lease violation. (N.T. 12-14, Exhibit 1).

Section 6.Y states that a tenant shall not engage in violence or threats of violence. (N.T. 12-14, Exhibit 1).

Boyer requested a grievance hearing on November 2, 2014, within the allotted time frame as required by the Notice to Quit and Notice of Proposed Termination of Lease. (N.T. 15).

The Housing Authority denied Boyer’s request for a grievance hearing. The Housing Authority denied the request because it believed a hearing was not required due to the type of lease violation at issue, which does not require an informal hearing. The Housing Authority’s belief that a grievance hearing was not required stems from citing a violation of the One Strike and You’re Out provision, Section 6.X of the lease.

On December 16, 2014, a hearing was held before Magisterial District Justice Maria Dissinger. The MDJ granted judgment for the Housing Authority. However, the MDJ did not grant possession of the property to the Housing Authority. Rather, the MDJ granted possession if the money judgment was not satisfied by the time of eviction.

On December 22, 2014, the Housing Authority filed an appeal.

On January 13, 2015, the Housing Authority filed a Complaint in Ejectment. The Complaint asserts that possession of the unit at issue was granted to the Housing Authority if the money judgment was not satisfied by the time of eviction. As of the filing of the Complaint, Boyer did not vacate the premises, there was no unpaid rent due and owing in this matter, and the Housing Authority has incurred costs in the suit before the MDJ. The Housing Authority requests judgment for the total amount of any additional sums for unpaid rent at the conclusion of this suit, plus the costs of this suit. The Housing Authority also asks for possession of the leased premises.

On February 4, 2015, Boyer filed Preliminary Objections. Boyer argued that the Complaint failed to conform to rule of Court for failure to attach the lease to the Complaint and that the Housing Authority failed to exercise or exhaust a statutory remedy; the right to a grievance hearing before the Housing Authority Board. This Court overruled Boyer’s Preliminary Objections and directed Boyer to file a responsive pleading to the Housing Authority’s Complaint in Ejectment.

A bench trial was held on November 2, 2015.

Susan Galbraith, Project Manager at Washington Arms was the first to testify for the Housing Authority. Susan Galbraith stated that in July, 2012, Boyer was issued a Notice to Quit and a hearing was held due to an incident where Boyer grabbed a resident’s head and twisted it. In that incident charges were filed against Boyer. The hearing did not result in an eviction. However, it was stated by the hearing officer that any further complaints of any nature would lead to eviction. (N.T. 10, 17-19).

Scott Sholly, a resident at Washington Arms, was the second witness to testify for the Housing Authority. (N.T. 25). Scott stated that on October 24, 2014, he was sitting on the patio with two other residents of Washington Arms, Carmen Albright and Dave Immel. Boyer came up to the table on his motorized scooter and forcefully touched Carmen Albright on the shoulder two times with an open hand. Scott further stated that Carmen seem very distressed and very upset about the contact. However, Carmen did not look like she was in pain. (N.T. 25-30, 32).

Carmen Albright testified after Scott and stated that on October 24, 2014, she was looking at a book on the patio where she was sharing a table with Scott Sholly and Dave Immel. Boyer came up to the table and hit her on the shoulder really hard. She stated that she was just released from the hospital that day and she got tears in her eyes after she was hit on the shoulder. She stated that the first hit was harder than the second one and then after the second hit Boyer tried to take her book from her. Carmen stated that someone had informed the building manager about what happened and called the police, who spoke with both parties regarding the incident. (N.T. 35-36, 40).

Dave Immel was the last witness to testify for the Housing Authority. Dave testified that he was sitting at the table with Carmen and Scott when Boyer came up to the table and on two occasions pressed his hand down hard on Carmen’s shoulder. Dave stated he told Boyer to not touch Carmen after the first touching. He stated that he saw Carmen’s eyes become teary after Boyer pressed his hand down hard on her shoulder. (N.T. 42).

Boyer testified that when he approached the table that Carmen was sitting at on October 24, 2014, he was just trying to say hello to her. He stated that he was not angry with her and he was not trying to hurt her. Boyer stated that there weren’t any criminal charges filed against him stemming from the October 24, 2014 incident. (N.T. 47).

Victor Rodriguez, a Habilitation Specialist and Volunteer Coordinator at Quest Inc., testified that Boyer has a difficult time with social interactions. Victor works one-on-one with Boyer to help him better understand personal space, work on interacting appropriately with others and improving other interpersonal skills. Victor testified that he has witnessed Boyer act inappropriately with others and Victor is aware that there have been issues with Boyer at Washington Arms. However, Victor opined that he doesn’t believe Boyer intends to bully others. (N.T. 51, 55-57).

Kim Shaw, an employee of Lebanon County Mental Health Intellectual Disability Early Intervention Program, testified that Boyer struggles with interpersonal skills. Kim testified that she witnessed Boyer become verbally aggressive with another person, but never threatening. (N.T. 62, 64).

At the conclusion of the hearing, this Court allowed the parties to file proposed findings of fact, conclusions of law, and legal memoranda in support of their respective positions within 30 days. In the event either party requested a transcript, the 30 day time period commenced on the date of the filing of the transcript. Both parties requested a transcript. Boyer filed a timely memorandum and proposed findings of fact/conclusion on December 15, 2015. The Housing Authority filed their timely memorandum and proposed findings of fact/conclusion on December 16, 2015.

The case is thus before us and ripe for disposition.

DISCUSSION

At the bench trial on November 2, 2015, the Housing authority introduced requisite and sufficient evidence of its claim. It did so through the testimony of Susan Galbraith, who was competent to testify about the facts and documents that were relevant in this case. Ms. Galbraith has been employed by the Housing Authority for 29 years. (N.T. 5). As the Project Manager for the Housing Authority, she is charged with making sure the tenants abide by their lease agreements. The Housing Authority is required to operate and run the apartment buildings as directed by the Federal Government, Department of Housing and Urban Development, which also regulates how the Housing Authority handles its relationships with its tenants.

Ms. Galbraith testified at length regarding Boyer’s propensity to cause disturbances at Washington Arms and violate his lease agreement with the Housing Authority. From January 2012 until July 2012, there were many incidents between Boyer and residents at Washington Arms where he was accused of unwanted touches, racial slurs and harassment of others. Charges were filed against Boyer in one of the 2012 incidents where he twisted another person’s head. Grievance proceedings were commenced and the hearing officer determined that eviction was not appropriate, however if there were any other incidents, it could lead to eviction. (N.T. 18-19). Ms. Galbraith stated that a lease violation was delivered to Boyer on January 9, 2014 for acting in an abusive or threatening manner towards neighbors. (N.T. 19).

Additionally, Ms. Galbraith testified that Boyer requested a hearing under the grievance procedure upon receiving the Notice to Quit and Notice of Proposed Termination of Lease, which stated that Boyer had a right to request a grievance hearing. However, the Housing Authority did not grant Boyer’s request to proceed under the grievance process because the Housing Authority cited Boyer for violating the One Strike and You’re Out section of the lease. (N.T. 15).

Multiple witnesses testified regarding the incident on October 24, 2014, which was the impetus of this action. The elicited testimony indicated that Boyer touched Carmen Albright two times on her shoulder. Carmen stated that the two contacts from Boyer’s hand were very painful and she got teary eyed as a result of the contacts. (N.T. 36-37). Scott Sholly testified that Carmen seemed very upset after Boyer made contact with her, but Carmen did not seem like she was in pain. (N.T. 27-28). Dave Immel testified that Carmen had tears in her eyes after Boyer made contact with her. (N.T. 42).

The parties disagree as to whether the Housing Authority followed the Federal regulations concerning evictions and grievance proceedings. The Housing Authority believes they did not have to proceed under the grievance process because Boyer violated the One Strike and You’re Out provision of the lease. Boyer contends that the Housing Authority erred by initiating legal proceedings against him when he requested to proceed under the grievance process. For the reasons stated below, we agree with Boyer and find that the Housing Authority erred by denying Boyer’s request to proceed under the grievance process.

GRIEVANCE PROCEDURE

Title 24 of the Code of Federal Regulations, Housing and Urban Development, Part 966 Subpart B directs public housing agencies to establish and implement grievance procedures. 24 C.F.R. § 966.50, et seq. Specifically, Subpart B provides the following regarding the grievance process:

(a)(1) The PHA grievance procedure shall be applicable (except as provided in paragraph (a)(2) of this section) to all individual grievances as defined in § 966.53 of this subpart between the tenant and the PHA.

(2)(i) The term due process determination means a determination by HUD that law of the jurisdiction requires that the tenant must be given the opportunity for a hearing in court which provides the basic elements of due process (as defined in § 966.53(c)) before eviction from the dwelling unit. If HUD has issued a due process determination, a PHA may exclude from the PHA administrative grievance procedure under this subpart any grievance concerning a termination of tenancy or eviction that involves:

(A) Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA;

(B) Any violent or drug-related criminal activity on or off such premises; or

(C) Any criminal activity that resulted in felony conviction of a household member.

24 C.F.R. § 966.51.

The Housing Authority’s lease contains the following definition of criminal activity in the “Tenant’s Obligations” section of the lease:

Criminal activity shall be defined as an act which constitutes a violation of any penal provision of any Federal, State or local law and which threatens the health, safety, or right to peaceful enjoyment of the premises by other Tenants or Management’s employees or agents, irrespective of whether there is an arrest, or in the case of an arrest, irrespective of whether there is an arrest and/or conviction. Examples of criminal activity which threatens the health, safety or right to peaceful enjoyment of the premises includes, but is not limited to, an act or acts that has as one of its elements the use, attempted use or threatened use of physical force against the person of another.

Exhibits 1 and 2.

After reading the language of the Code of Federal Regulations and the Housing Authority’s lease, we disagree with the Housing Authority’s decision to bypass the grievance process through use of the One Strike and You’re Out provision in the lease. As stated in the Code of Federal Regulations and the Housing Authority’s lease, the Housing Authority may bypass the grievance process where there is “criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA.” 24 C.F.R. § 966.51.

At the bench trial, there was testimony regarding the incident on October 24, 2014, between Boyer and Carmen. The testimony was not consistent in terms of the extent and force of the contact by Boyer. It was also stated that charges were not filed against Boyer as a result of the incident. Criminal charges are not required for the conduct to be considered “criminal activity.” However, charges would be more indicative of the extent and severity of the incident.

Additionally, there was testimony that Boyer had criminal charges filed against him for an incident in 2012 where Boyer twisted another resident’s head. In that case, the Housing Authority did not seek to bypass the grievance process, even though criminal charges were filed. As a result, we cannot find that the Housing Authority met its burden to prove that Boyer’s conduct would be considered “criminal activity,” thus justifying its decision to bypass the grievance process.

In determining that the Housing Authority did not meet its burden and erred in bypassing the grievance process that Boyer requested, we find it important to note that we do not condone or approve of Boyer’s conduct. Though unfortunate and perhaps repeated, we find that Boyer’s conduct does not fall within the ambit of “criminal activity” that would warrant the Housing Authority to bypass the grievance process.

CONCLUSIONS OF LAW

Boyer and the Housing Authority entered a valid lease that was binding on all parties.

Federal law requires the Housing Authority to utilize their grievance process where requested.

Where a tenant conducts criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents or employees of the PHA, the Housing Authority may bypass the grievance process.

Boyer’s contact with Carmen Albright does not fall within the ambit of “criminal activity,” allowing the Housing Authority to bypass the grievance process.

As a result of the Housing Authority’s error in bypassing the grievance process, this matter is remanded to follow the appropriate grievance process as Boyer requested.

We will enter an Order consistent with the foregoing.

1) In pertinent part, Part 966 Subpart B, section 52 provides:

(a) Each PHA shall adopt a grievance procedure affording each tenant an opportunity for a hearing on a grievance as defined in § 966.53 in accordance with the requirements, standards, and criteria contained in this subpart.

(b) The PHA grievance procedure shall be included in, or incorporated by reference in, all tenant dwelling leases pursuant to subpart A of this part.

24 C.F.R. § 966.52(a)-(b).

2) Boyer also raised the doctrine of equitable estoppel as a defense to the Housing Authority’s complaint in ejectment. Due to our decision, finding that the Housing Authority has not met its burden and erred in bypassing the grievance process, we will not address Boyer’s defense of equitable estoppel.

 

About the author

Ben has written 980 articles for Lebanon County Legal Journal

Search