N. Coventry Twp. v. J. Tripodi

N
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


 North Coventry Township                            :
                                                    :
               v.                                   :   No. 1073 C.D. 2019
                                                    :   Submitted: November 12, 2020
 Josephine Tripodi, et al.,                         :
                                 Appellants         :


 BEFORE:            HONORABLE PATRICIA A. McCULLOUGH, Judge
                    HONORABLE ANNE E. COVEY, Judge
                    HONORABLE J. ANDREW CROMPTON, Judge (P)

 OPINION NOT REPORTED

 MEMORANDUM OPINION
 BY JUDGE CROMPTON                                      FILED: March 9, 2021


       Before this Court is the appeal of Josephine Tripodi (Tripodi or, alternatively,
 Tripodis)1 from the July 9, 2019 orders (individually, Order or, collectively, Orders)2

       1
         The caption of this case, over time, including before this Court, has, alternatively, reflected
one appellant, Josephine Tripodi, and at other times read “Josephine Tripodi, et al.,” as it does
currently, apparently reflecting the participation of Ms. Tripodi along with her daughter Geri Carr
Tripodi, who intervened in this matter in 2009. The caption of the Order at issue in the matter sub
judice identifies Josephine M. Tripodi and Geri Carr Tripodi as Defendants.
       2
           The trial court issued three Orders dated July 9, 2019.

               In the first [O]rder, the trial court merely indicates that the court is issuing the
       [O]rder and a contemporaneous [O]rder because a fund needs to be established for
       payment of inspection fees, remediation, and costs. The [O]rder indicates that failure
       to comply with the [O]rder may result in the [Kline Place Apartments] [(]Property[)]
       being sold and/or a finding of contempt. The second [O]rder denies what is
       characterized as Appellant Josephine Tripodi’s “Motion for New Trial/Hearing.” This
       [O]rder specifically states “an appeal from this Order will be considered interlocutory
       and will not divest [the trial court] of jurisdiction.” The third [O]rder is more detailed,
       and it directs [the Tripodis] to deliver to an appointed Master [(Master)] either []: 1)
       [a] $500,000 check; or 2) personal financial information . . . . The Order directs how
       the $500,000 is to be used by the Master including the payment of [a] judgment of
       $34,093.65 in favor of [North Coventry] Township [(Township)], [a] judgment of
 of the Chester County Court of Common Pleas (trial court), establishing a fund to
 inspect and remediate Tripodi’s property (Property), and pay costs and fees and stating
 that failure to comply may result in the sale of the Property and/or a finding of
 contempt against the Tripodis.
                                        I.      Background
       Tripodi owns Kline Place Apartments (Property), which is located within North
Coventry Township (Township). On November 14, 2007, the Township filed an action
in the trial court seeking relief relative to Tripodi’s non-compliance with the
Township’s property maintenance, plumbing, and electrical codes at the Property. The
litigation in this matter has been ongoing from 2007 through the present, including
multiple appeals to this Court.3 In February 2009, the parties reached an agreement, in
which Tripodi agreed to sell the Property to her daughter, Geri Carr Tripodi.4 See N.
Coventry Twp. v. Tripodi (Pa. Cmwlth., No. 851 C.D. 2017, filed June 4, 2018), slip
op. at 2. In a June 12, 2009 order, the trial court approved the parties’ stipulation and
approved the request that Geri Carr Tripodi be joined as a party defendant to the
litigation.


       $61,803.75 in favor of the Master, and a second judgment of $37,091.25 in favor of
       the Master. The rest of the [O]rder indicates how the remaining money is to be
       utilized. If [the Tripodis] decide to provide financial information to the Master rather
       than make the $500,000 deposit, the [O]rder indicates what information must be
       submitted to the Master.

N. Coventry Twp. v. Tripodi (Pa. Cmwlth., No. 1073 C.D. 2019, filed Aug. 17, 2020), slip op. at 2.
       3
         See N. Coventry Twp. v. Tripodi (Pa. Cmwlth., No. 1214 C.D. 2010, filed Mar. 24, 2011);
N. Coventry Twp. v. Tripodi (Pa. Cmwlth., No. 2075 C.D. 2010, filed June 15, 2011); N. Coventry
Twp. v. Tripodi (Pa. Cmwlth., Nos. 831, 832 C.D. 2012, filed Feb. 20, 2013); N. Coventry Twp. v.
Tripodi (Pa. Cmwlth., No. 851 C.D. 2017, filed June 4, 2018). The background information in the
present opinion is gleaned, substantially, from these earlier opinions of this Court.
       4
           The record does not reveal whether this sale actually occurred.

                                                   2
       On July 9, 2019, the trial court issued the Orders that are currently before us on
appeal. As noted above, the most detailed of the three, and the one that is the primary
focus in the present matter, is the Order requiring that the Tripodis deliver a check in
the amount of $500,000 to John A. Koury Jr., Esquire, the trial court’s appointed
master (Master), or, alternatively, to provide personal financial information to him.
Reproduced Record (R.R.) at 12-18.5
       The aforementioned Order, at its essence, states that the Master shall use the
$500,000, for full payment, in favor of the Township against the Tripodis, jointly and
severally, in the amounts of $34,093.65 and of $61,803.75, per paragraphs 4 and 5 of
the trial court’s April 25, 2017 order.6 In addition, $37,091.25 is to be used for matters
contemplated under paragraph 4 of the present Order.7 The remainder of the $500,000
balance is to be deposited into an IOLTA8 account to be used for payment of invoices
submitted to the Master by consultants, contractors, and others for completion of
inspection and review of all buildings, dwelling units, and other areas of the Property

       5
           Pa.R.A.P. 2173 states, in pertinent part, as follows:

       [e]xcept as provided in Rule 2174 (tables of contents and citations), the pages of
       briefs, the reproduced record and any supplemental reproduced record shall be
       numbered separately in Arabic figures and not in Roman numerals: thus 1, 2, 3, etc.,
       followed in the reproduced record by a small a, thus 1a, 2a, 3a, etc., and followed in
       any supplemental reproduced record by a small b, thus 1b, 2b, 3b, etc.

We note that the reproduced record, herein, does not follow the above rule.
       6
          Paragraph 4 of this order addressed costs incurred by the Master for his services from
September 1, 2009, through May 14, 2010, and from June 2, 2010, through August 25, 2016.
Paragraph 5 of the order addressed attorney’s fees and costs incurred by the Township in litigating
this case. R.R. at 21.
       7
        This latter amount was ordered as payment for fees and services of the Master from the
period August 12, 2016, through June 7, 2019.
       8
           “IOLTA” is an acronym for “Interest on Lawyer Trust Accounts.”

                                                    3
to determine whether they are contaminated by mold. In addition, the trial court
ordered these funds be used for the remediation of mold, in order to permit a full
building and maintenance code inspection, and for necessary corrections to bring the
Property into compliance. Beyond that, the funds were established to be used to obtain
an appraisal of the Property to determine its fair market value and for payment of other
expenses as the trial court might from time to time direct. Further, the Order directs
the Master to provide an interim accounting of the amounts he expends, and, upon a
final accounting, to distribute any unpaid balance to the Tripodis, unless otherwise
directed by the trial court.
       In addition, the trial court’s Order provides that, if the Tripodis choose to
provide their personal financial information to the Master, instead of a check for
$500,000, the information they provide will be utilized to determine their financial
ability, both individually and together, to obtain and post sufficient personal funds to
make the payments addressed in the Order and/or for such other purposes as the trial
court directs. In addition, the Order requires the Tripodis to be present at the Property
as requested by the Master, but only at times designated by him, and, otherwise, not
to be present at the Property when any inspections, review, remediation, correction,
and/or appraisal activities are occurring.
       Tripodi now appeals to this Court.9




       9
         To the extent the issues this Court is asked to address are solely questions of law, the
standard of review is de novo and the scope of review is plenary, as this Court may review the entire
record in making its decision. Probst v. Dep’t of Transp., Bureau of Driver Licensing, 

849 A.2d 1135

(Pa. 2004). To the extent Tripodi asserts that the trial court abused its discretion, we note that
“an abuse of discretion occurs where the trial court ‘reaches a conclusion that overrides or misapplies
the law, or where the judgment exercised is manifestly unreasonable, or is the result of partiality,
prejudice, bias, or ill will.’” Mitchell v. Shikora, 

209 A.3d 307

, 314 (Pa. 2019) (quoting Com. v.
Wright, 

78 A.3d 1070

, 1080 (Pa. 2013)). “To the degree the issue of whether the law has been
misapplied involves a purely legal question, it is reviewed de novo.”

Id. at 314. 4 II.

   Arguments
                               A.     Tripodi’s Arguments
        Tripodi raises two primary questions on appeal: (1) “Did the [trial court] abuse
its discretion in ordering [the Tripodis] to pay $500,000 to fund the alleged mold
remediation of the subject [P]roperty owned by Josephine Tripodi?” and (2) “Did the
[trial court] misapply governing law and abuse its discretion in ordering Geri Carr
Tripodi to comply with the orders . . . when she does not own the [P]roperty and has
no interest in it?” Tripodi’s Am. Br. at 3.
        Tripodi states:


        The [Orders] were entered after a June 7, 2019 hearing before [the trial
        court] revolving around [the] Master’s claim that 12 of 27 units at the
        [P]roperty are “contaminated with mold” and the Township’s and [the]
        Master’s demands for payments from [the Tripodis]. The Master advised
        the judge that the estimate for “damages” was $160,000, then demanded
        $350,000; then [the trial court] ordered [the Tripodis] to pay even more
        than that - $500,000 – within 60 days of the [Orders] . . . .

Tripodi’s Am. Br. at 6. Additionally, and as we noted above, the trial court ordered
that, in lieu of a check for $500,000 payable to the Master, the Tripodis could each
supply their personal financial information to the Master.
        Tripodi argues that the trial court cited no legal standards for its Orders and that,
in fact, there is no federal law covering a property owner’s responsibilities relative to
mold.     Tripodi states that “[n]either the United States, the Commonwealth of
Pennsylvania, nor Chester County have laws, codes, or regulations governing mold,”
and because no state or federal law requires a property owner to inspect for mold or to
remediate it, the trial court’s requirement that the Tripodis pay $500,000 to perform
same, is “a reversible abuse of discretion.” Tripodi’s Am. Br. at 20-21. Tripodi further
argues that the trial court conflated prior orders and code violations at issue in the case

                                              5
with the present matter involving mold issues and that the prior violations and orders
were not grounds for compelling the Tripodis to pay $500,000.
      Tripodi states that the prior order in the case, i.e., the order issued on April 25,
2017, entered judgment in favor of the Master in the amount of $61,803.75, and
entered judgment in favor of the Township for $34,093.65 for attorney’s fees and
costs. In addition, the April 25, 2017 order authorized the Township to spend up to
$10,000 from an escrow account of $15,000 to hire an engineer to conduct a full
building and maintenance code inspection and to review all buildings/apartments that
are part of the Property. The April 2017 order also authorized the Township to use
and expend up to $5,000 from the escrow fund to engage a real estate appraiser to
determine the fair market value of the Property. In addition, the April 2017 order
directed the Tripodis to make the Property available for inspections by the engineer,
the real estate appraiser, township representatives, and the Master, and directed the
Master to issue a report after reviewing the engineer’s and appraiser’s reports. Tripodi
asserts that the April 2017 order did not address the issue of mold, and that it was an
insufficient basis for the trial court to compel the Tripodis to make payment for mold
inspection and remediation and did “not come anywhere near the . . . $500,000 that
[the trial court] . . . demanded of [the Tripodis] via [its] July 7, 2009 Orders under
review . . . in this appeal.” Tripodi’s Am. Br. at 22-24.
      Tripodi argues that it is the Master, rather than she and/or her daughter, who is
responsible for the growth of mold at the Property, as the Master was in charge of
inspections of, and access to, the Property since his appointment in 2009, and he failed
to maintain the Property. Thus, Tripodi asserts that the growth of mold was the fault
of the Master and the Township because they were the ones that had control over the
Property. Tripodi’s Am. Br. at 24. In addition, Tripodi asserts that there were no
detailed cost estimates of mold remediation from the Master to the trial court, the
                                           6
Master’s reports were “vague and incomplete” and failed to “detail the mold alleged
to be contained within each townhouse at the [P]roperty,” and the trial court failed to
assess Josephine Tripodi’s ability to pay the $500,000 as ordered. Tripodi’s Am. Br.
at 25.
         Furthermore, Tripodi contends that the trial court abused its discretion and
committed an error of law by imposing requirements on “non-owner, Geri Carr
Tripodi.”

Id. Tripodi maintains that

“Geri Carr Tripodi does not own the [Property]
and has no interest in it. Geri appeared in the litigation below because, in 2009, Geri
was the prospective purchaser for the [Property]. But this sale never occurred. Geri
does not own the [Property] and has no interest in it.”

Id. Further, “[t]here is

no state
or federal law that provides that a non-owner should be made responsible for property
maintenance or like obligations or, in this case, responsible ‘equally’ with the property
owner for paying the . . . $500,000 that [the trial court] ordered below.” Tripodi’s Am.
Br. at 26. Tripodi requests that this Court vacate the Orders of the trial court entered
against her/them.
                            B. The Township’s Arguments
         The Township succinctly argues that Tripodi offered no defense for failing to
comply with the trial court’s Order and, thus, the appeal should be denied.
                                    III.   Discussion
         Briefly, to recap, the primary arguments of substance put forward by Tripodi
are that it was inappropriate for the trial court to require $500,000 be deposited in a
fund for repairs, when the Master determined that, at most, $350,000 would be
necessary, and there is no requirement in law that mold must be remediated. Further,
Tripodi contends that, in fact, the existence of mold is a result of the Master’s failure(s)
over time. In addition, Tripodi asserts that Geri Carr Tripodi should not have been
treated as if she is an owner of the Property and made subject to any of the
                                             7
requirements placed upon her mother. We address the issues raised by Tripodi in
reverse order.
      To the extent Tripodi, and/or the Tripodis, argue that Geri Carr Tripodi is not
an owner of the Property, and, thus, should not be held to any of the requirements of
the true owner, Josephine Tripodi, we find this argument unconvincing. Geri Carr
Tripodi sought to intervene in this litigation many years ago and was joined as a party
defendant in June 2009. As the Pennsylvania Rules of Civil Procedure make plain:
“After the entry of an order allowing intervention, the intervener shall have all the
rights and liabilities of a party to the action.” Pa.R.C.P. No. 2330 (emphasis added).
Further, as our Supreme Court enunciated in In re Appeal of the Municipality of Penn
Hills, 

546 A.2d 50

, 52 (Pa. 1988): “Given the absence of limitations to the contrary .
. . an intervenor participates in the appeal with all the attendant rights of any other
party.”
      Geri Carr Tripodi chose to intervene in the present matter in 2009. She cannot
now assert she is a mere representative or observer or that she can move in and out of
the litigation at will. Further, to suggest that Geri Carr Tripodi has no interest in the
Property seems disingenuous in light of the fact that, at one time, the parties had agreed
Geri Carr Tripodi would purchase the Property from her mother. Ironically, the very
financial statements to which the Tripodis object would establish whether, in fact, Geri
Carr Tripodi has an interest in the Property. Accordingly, we reject the argument that
Geri Carr Tripodi cannot be held accountable in the same way Tripodi may be. Thus,
the trial court did not err by determining Geri Carr Tripodi may be subject to the same
requirements as her mother in this matter, including the provision of financial
statements.
      Next, we address Tripodi’s contention that the trial court abused its discretion
when it ordered the payment of $500,000 to create a fund to inspect and remediate the
                                            8
Property of mold, to pay the Master, and to offset other necessary expenses as directed
by the trial court. In this Court’s April 2, 2020 Memorandum and Order, we stated:


      [i]n its July 9, 2019 Order, the trial court ruled that the Tripodis could
      make a $500,000.00 payment or provide personal financial information
      to determine the Tripodis’ financial ability to provide the $500,000.00
      check . . . . The Tripodis’ counsel offered no reason for not submitting
      financial information rather than making the $500,000.00 payment . . . .
      The Tripodis had the option to provide the ordered financial information
      but chose not to do so.

N. Coventry Twp. v. Tripodi (Pa. Cmwlth., No. 1073 C.D. 2019, filed Apr. 2, 2020),
slip op. at 4 (emphasis in original).
      Initially, we review whether the trial court abused its discretion or committed
an error of law when it required the Tripodis to remediate mold at the Property.
While it may be true, as the Tripodis assert, that no law requires mold remediation,
the purpose of the mold remediation is to make it safe enough for the inspectors to
enter the premises to determine the extent of the code violations. Thus, without mold
remediation, nothing further can occur. Accordingly, we see no error in the trial
court’s determination that the Tripodis must fund mold remediation as a precursor
to meeting the other requirements for which they are responsible under the Orders.
      In other circumstances, we might be skeptical of the trial court affixing a sum
to be escrowed, in the absence of more specific information about the cost of
remediation. However, we reiterate here, the Tripodis were given the alternative of
providing the Master with their financial documentation, in lieu of the $500,000.
Thus, paying the $500,000 was not the only option available to them. Further, given
the Tripodis’ failure to comply, their dilatory tactics to date, including multiple
changes in legal representation over the lifetime of the litigation in this matter, and
the unknown extent of the mold damage to the Property, along with the uncertainty

                                          9
of the costs associated with inspection, remediation, and bringing the Property up to
code, we do not think it was unreasonable for the trial court to set the escrowed
amount at $500,000 in this particular case. This is especially true where the passage
of time, in and of itself, very likely has added, and may continue to add, to the
deteriorating condition of the Property, and where safety concerns make an accurate
assessment of that condition difficult to obtain. We note here that there should be
no confusion that the $500,000 is entirely for mold remediation, when indeed that is
not the case, despite some obfuscation of the issue in Tripodi’s arguments to this
Court as stated above. A significant portion of the $500,000 total set by the trial
court is to cover costs already incurred and for additional costs that will be incurred
to bring the Property up to code requirements. Any costs for mold remediation will
represent only a portion of the overall total costs. Further, we note that we see
Tripodi’s attempt to lay the blame for the development of mold on the Property at
the feet of the Master as disingenuous where there has been an ongoing lack of
cooperation by the Tripodis with the Master’s and the Township’s collective efforts
to bring the Property into compliance over the past 14 years.
     The trial court clearly recognizes it is not unfettered in its ability to set an
appropriate fund amount. This is evidenced by its self-imposed mitigation measures,
i.e., (1) allowing the Tripodis an alternative to paying the $500,000, (2) making it
explicit that the fund is to be placed in an IOLTA account, subject to accounting by
the Master, and (3) directing any unexpended funds from the $500,000 be
returned to the Tripodis, once the Property is brought into compliance. Similar to
our Superior Court’s view in determining the equitable distribution of property in
divorce matters, we believe that “a trial court has broad discretion” in fixing the
amount which must be set aside to effectuate justice. See Dalrymple v. Kilishek,

920 A.2d 1275

, 1280 (Pa. Super. 2007). Thus, we see no error or abuse of discretion
                                          10
by the trial court in the present instance.
                                       IV. Conclusion
     Based on the foregoing, we affirm the July 9, 2019 Orders of the trial court.




                                                   J. ANDREW CROMPTON, Judge




                                              11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


North Coventry Township                   :
                                          :
           v.                             :   No. 1073 C.D. 2019
                                          :
Josephine Tripodi, et al.,                :
                             Appellants   :



                                      ORDER
                AND NOW, this 9th day of March 2021, the July 9, 2019 Orders of
the Chester County Court of Common Pleas are AFFIRMED.




                                              J. ANDREW CROMPTON, Judge

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