J-A10011-14
2014 PA Super 180
LINDA AGOSTINELLI, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JAMES C. EDWARDS, JON D. :
EDWARDS, AND LETWO VENTURES, :
LLC., :
:
Appellee : No. 1248 MDA 2013
Appeal from the Order entered June 14, 2013,
Court of Common Pleas, Centre County,
Civil Division at No(s): 2006-3286 and 2006-4444
BEFORE: DONOHUE, ALLEN and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED AUGUST 20, 2014
entered on June 14, 2013 by the Court of Common Pleas of Centre County
following proceedings on remand from this Court. After careful review, we
affirm in part and vacate in part.
The relevant facts and procedural history in this case are as follows.
on several investments. On May 3, 2000, Mrs. Agostinelli, Dr. Edwards, and
for the purpose of buying and developing property for the Barnbridge
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assigned a 50 percent interest to Mrs. Agostinelli and a 25 percent interest
each to Dr. Edwards and Jon.
August 31, 2006, the Edwardses filed suit against Mr. and Mrs. Agostinelli
misrepresentation, breach of contract, and conversion. On November 16,
2006, the Agostinellis filed their own suit against the Edwardses. On
December 5, 2007, the trial court consolidated the two lawsuits.
On June 4 and 5, 2009, the trial court held a non-jury trial and on
January 5, 2010, the trial court conducted a hearing on damages. On June
17, 2010, the trial court entered an opinion and verdict finding, inter alia,
that the Agostinellis improperly converted certain LETWO funds to their
benefit, but that they had not committed fraud. Trial Court Opinion and
Verdict, 6/17/10, at 4-11. The trial court also determined that the
Agostinellis had personally benefitted from their conversion of LETWO funds.
Id. at 7, 11. The trial court found that LETWO had $480,693.48 in assets
and that Mrs. Agostinelli was entitled to 50 percent of those assets, or
$240,346.74. Id. at 12. The trial court further found that the Edwardses
had a combined capital account of $283,239.89 and that the Agostinellis had
a negative capital account of $186,224.92, which represented the amount of
money they converted from LETWO. Id. The trial court ruled that the
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Agostinellis would have to contribute that $186,224.92 plus an additional
monetary capital contribution of $141,619.94 for a total contribution of
Id. The trial court then credited the
LETWO, bringing the amount of damages that the trial court required them
to pay LETWO to $87,498.12. Id. The trial court also ordered the
Agostinellis to pay Dr. Edwards $28,247.16 and Jon $17,075.59, but denied
Id. at 13-14.
On June 28, 2010, the Edwardses and Agostinellis both filed motions
for post-trial relief. On October 29, 2010, the trial court issued a new
opinion and order finding that, inter alia
monetary capital contribution of $283,239.89, as opposed to the
$141,619.94 provided for in the June 17, 2010 opinion and order, in order to
even out her capital account with the Edwardses. Trial Court Opinion and
Order, 10/29/10, at 10. Thus, the trial court determined that after adding
that $283,239.89 to the $141,619.941 that the Agostinellis converted from
1
We note that the $141,619.94 the trial court uses in its October 29, 2010
opinion and order to represent the amount that the Agostinellis converted
from LETWO is incorrect. See Trial Court Opinion and Order, 10/29/10, at
10. This figure should match the number provided by the June 17, 2010
opinion and verdict, which was $186,224.92. See Trial Court Opinion and
Verdict, 6/17/10, at 12. Though the Edwardses have never challenged the
$141,619.94 figure from the October 29, 2012 opinion and order, the trial
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LETWO, the Agostinellis owed LETWO $424,859.83. Id. After crediting Mrs.
Agostinelli with her 50 percent interest in LETWO ($240,346.74), the trial
court ordered the Agostinellis to pay LETWO $184,513.09.2 Id. at 10, 12.
Addition
company having credited her with her 50 percent interest. Id. at 9-10, 12.
On November 8, 2011, Dr. Edwards and Jon filed a motion for
reconsideration of the October 29, 2010 opinion and order. On November
17, 2010 the trial court expressly granted reconsideration, but affirmed the
October 29, 2010 opinion and order on January 17, 2011.
On January 31, 2011, the Edwardses appealed to this Court and on
February 10, 2011, the Agostinellis filed a cross-appeal. A panel of this
inter alia, that Mr.
Agostinelli (but not Mrs. Agostinelli) had committed fraud and that the trial
court should have awarded the Edwardses six percent simple interest per
annum on the funds that the Agostinellis converted. Agostinelli v.
Edwards, 223 MDA 2011, 6-17 (Pa. Super. March 12, 2012) (unpublished
memorandum). Additionally, the panel determined that the trial court
should not have required Mrs. Agostinelli to make a monetary capital
court corrected the error in its recalculation of damages on remand. See
Trial Court Opinion and Order, 6/14/13, at 4-5.
2
This order did not change the amount that the trial court required the
Agostinellis to pay Dr. Edwards and Jon. See Trial Court Opinion and Order,
10/29/10, at 12.
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contribution to LETWO. Id. at 20-
Id. at 24-26. Notably,
rs.
Agostinelli with her 50 percent interest in the company. The panel
Id. at 29.
On remand, the trial court held an evidentiary hearing on May 9, 2012,
fraud and the appropriate calculation of simple interest on the conversion
damages. Following this evidentiary hearing, on February 7, 2013, the trial
court, inter alia, determined that Mrs. Agostinelli would not receive credit for
her 50 percent interest in LETWO because she had personally benefitted by
converting LETWO funds. Trial Court Opinion and Order, 2/7/13, at 5-6. As
a result, the trial court awarded damages to LETWO in the amount of
$226,174.92,3 but did not require her to make a monetary capital
contribution to LETWO. Id. at 6-7.
On February 21, 2013, the Edwardses filed a motion for
reconsideration of the February 7, 2013 order. On March 8, 2013, the
Agostinellis filed a combined motion to reopen the record and motion for
reconsideration of the February 7, 2013 order. That same day, and within
3
The trial court again did not change the amount that it required the
Agostinellis to pay Dr. Edwards and Jon. See Opinion and Order, 2/7/13, at
6-7.
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the 30 days during which the trial court had jurisdiction to do so, the trial
court expressl
Subsequently, on March 14, 2013, the Edwardses filed a motion to strike the
motion for reconsideration as
an untimely post-trial motion. See
Motion to Reopen the Record and Motion for Reconsideration of the February
7, 2013 Order, 3/14/13, at ¶¶ 2-3. The trial court held a hearing on these
motions on March 25, 2013.
On June 14, 2013, the trial court entered an opinion and order in
which it held:
reopen as untimely under [Rule] 227.1 is denied.
Rule 227.1 provides for post-
Pursuant to its plain language, the rule does not
apply to evidentiary hearings, like the post-remand
damages hearing in this case, that fall short of a full
trial. See Newman Dev. Group of Pottstown, LLC
, 52 A.2d 1233
(Pa. [2012]).
Trial Court Opinion and Order, 6/14/13, at 2. The trial court also increased
the amount the Agostinellis were required to pay LETWO to $278,237.15,4
4
The trial court made this change due to omissions as well as mathematical
and clerical errors that it made in its February 7, 2013 order. Trial Court
Opinion and Order, 6/14/13, at 3. Additionally, this opinion and order did
not change the amount that the trial court required the Agostinellis to pay
Dr. Edwards and Jon. See id. at 5.
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again without requiring Mrs. Agostinelli to make a monetary capital
contribution. Id. at 4-5. The trial court did not alter its original order to the
extent that Mrs. Agostinelli was not credited with her interest in LETWO. On
July 12, 2013, Mrs. Agostinelli filed the instant appeal from the June 14,
2013 order. On August 20, 2013, the trial court ordered Mrs. Agostinelli to
file a statement of errors complained of on appeal pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b)(1). On September 6, 2013, Mrs.
Agostinelli
order and Rule 1925(b). On appeal, Mrs. Agostinelli raises the following
issues for review:
1) DID THE TRIAL COURT COMMIT AN ERROR OF
BOTH LAW AND FACT IN ATTRIBUTING THE FRAUD
COMMITTED BY HER HUSBAND TO [MRS.]
AGOSTINELLI?
2) DID THE TRIAL COURT COMMIT AN ERROR OF
LAW AND VIOLATION OF THE OPERATING
AGREEMENT WHEN IT EXPELLED [MRS.]
AGOSTINELLI FROM MEMBERSHIP OF LETWO, LLC
WITHOUT PROPERLY CREDITING HER WITH HER
50% SHARE IN THE CORPORATION, UNJUSTLY
ENRICHING THE REMAINING MEMBERS WITH ALL
THE ASSETS OF LETWO, LLC (VALUED AT LEAST AT
$480,693.48)?
3) DID THE TRIAL COURT COMMIT AN ERROR OF
LAW IMPROPERLY INTERP[RE]TING THE SUP[E]RIOR
[MRS.] AGOSTINELLI PROPER CREDIT FOR HER
SHARE.
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5
Prior to discussing the merits of the issues raised on appeal, we must
first determine whether Mrs. Agostinelli has waived her allegations of error
by failing to file post-trial motions following the proceedings on remand. On
July 30, 2013, this Court entered an Order directing Mrs. Agostinelli to show
Pennsylvania Rule of Civil Procedure 227.1, which requires the filing of post-
trial motions in certain circumstances in order to preserve issues for appeal.
Order, 7/30/13, at 1-2. On August 5, 2013, Mrs. Agostinelli filed her
response to this Order. In her response, because the Edwardses raised the
issue of her failure to file post-trial motions in the trial court, Mrs. Agostinelli
Newman, in which the trial court
like the
post-remand damages hearing in this case,
Response Letter, 8/5/13, at 1 (quoting Trial Court Opinion and Order,
letter, this Court discharged the July 30, 2013 Order that same day,
referring the issue to the merits panel.
Pennsylvania Rule of Civil Procedure 227.1(c) requires the filing of
post-
because of inability to agree, or nonsuit in the case of a jury trial; or (2)
5
We reordered the issues that Mrs. Agostinelli raises for ease of review.
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notice of nonsuit or the filing of the decision in the case of a trial without
post-trial relief may not be granted unless the
grounds therefor . . . are specified in the motion. The
motion shall state how the grounds were asserted in
pre-trial proceedings or at trial. Grounds not
specified are deemed waived unless leave is granted
upon cause shown to specify additional grounds.
Pa.R.C.P. 227.1(b)(2). Moreover, Pennsylvania Rule of Appellate Procedure
302(a) states t
to the interplay between Civil Rule 227.1 and Appellate Rule 302(a), our
Supreme Court stated:
Civil Rule 227.1 addresses waiver at the trial court
-trial power.
as an appellate matter, establishing the general rule
aised in the lower court are waived
Pa.R.A.P. 302(a).
Newman, 52 A.3d at 1246 n.5.
-trial
motions following remand proceedings. The Supreme Court of Pennsylvania
in Newman recently addressed the applicability of Rule 227.1 to an appeal
appellant files post-
not to a later order resulting from a remand proceeding where no new
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evidence was taken Id. at 1245 (emphasis added). The Court in
Newman sought to determine whether the remand proceeding in question
constituted a trial, triggering the application of Rule 227.1. Id. at 1247.
The Supreme Court in Newman described the post-appeal procedural
history of that case as follows:
determination on liability, i.e., that appellants had
breached their lease with Newman, but found that
the trial court had not properly calculated damages
measure of damages provision. The panel remanded
to the trial court with a general directive to conduct
memorandum decision, without any specific directive
or indication concerning the type or scope of
proceeding that would occur upon remand.
* * *
directive to recalculate damages based upon the
existing record and the undisputed terms of the
lease[.]
Id. On remand, the trial court heard no evidence prior to recalculating
damages. Id. at 1238. Neither party filed any post-trial motions following
the entry of the new judgment. Id. The appellants appealed the new
calculation of damages to this Court. Id. This Court quashed the appeal for
failing to file post-trial motions pursuant to Rule 227.1(c), resulting in waiver
of all issues raised on appeal. Id.
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discussed the reasoning of Lenhart v. Travelers Insurance Co., 596 A.2d
162, 163 (Pa. Super. 1991). See Newman, 52 A.3d at 1249-51. It further
differentiated the case of Cerniga v. Mon Valley Speed Boat Club, Inc.,
862 A.2d 1272, 1273 (Pa. Super. 2004), from the circumstances before it.
See Newman, 52 A.3d at 1249-51.
Lenhart
on the record and briefs. Lenhart, 596 A.2d at 163-64. Neither party
presented any evidence to the trial court. Id. at 164. Our Court rejected
appeal for failing to file post-trial motions under Rule 227.1(b). Id. We held
that because
the decision by the trial court was based solely on its
consideration of the record, without the introduction
of any evidence, it clearly is an order either
disposing of what in effect were cross-motions for
summary judgment or at the very least, an order
entered in a proceeding that did not constitute a
trial.
Id. Thus, we concluded that post-trial motions were not required under
Rule 227.1. Id.
In Cerniga, following the filing of post-trial motions, the appellant
Cerniga, 862 A.2d at 1274. On remand, the trial court
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made the ordered additional factual findings and legal conclusions. Id.
Prior to appeal from the remand proceedings, the appellant did not file any
post-trial motions. Id. We found as follows:
By failing to file post-
new order, which was based on these new factual
findings and conclusions of law, [the appellant]
frustrated the purpose of Rule 227.1 and deprived
the trial court of an opportunity to correct any errors
in its new ruling, albeit one that was consistent with
its prior ruling. Indeed, some of the issues which
[the appellant] now raises on appeal specifically
involve the additional factual findings and legal
conclusions entered by the trial court on remand.
Id. at 1274-75. Therefore, this Court ruled that the appellant had failed to
preserve any issues for review and quashed the appeal. Id. at 1275.
Cerniga instructed that the failure to file post-trial motions following an
order on remand in which the trial court made additional factual findings and
conclusions of law is grounds for waiver of issues on appeal. Id. at 1274-
75. Cerniga Newman
decision.
Mkt., 18 A.3d 1182, 1188 (Pa. Super. 2011), vacated, 52 A.3d 1233 (Pa.
2012).
Examining Lenhart and Cerniga, the Supreme Court in Newman
ruled as follows:
Looking to Lenhart and Cerniga, not for guidance
as to the actual scope of Rule 227.1 as conveyed by
its language, but rather for what those decisions
reasonably conveyed to practicing attorneys
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regarding what triggers the post-trial motion
requirement of the Rule in remand scenarios, we
believe that the waiver holding below cannot stand.
Cerniga stressed that
law. A party or attorney reading Lenhart and
Cerniga could reasonably conclude that a remand
proceeding before the trial court that does not
involve taking new evidence or resolving a new
factual dispute is not a trial within the meaning of
Rule 227.1, and does not require the filing of new
post-trial motions. Such a reading is buttressed by
-trial motions are
proceedings which
the best reading of the Superior Court decisional law,
the fact remains that the argument forwarded here
concerning the proper scope of Rule 227.1 is an
argument that was not forwarded in Cerniga, and
that is enough to take this case out of that decisional
rule.
In short, we harbor no doubt that, under the
appropriate case to find that Rule 227.1 required the
filing of post-trial motions. But, having said that, we
stress that our task encompasses more than merely
interpreting and aligning the decisional law of the
lower courts concerning our Civil Rules. Our primary
holding remains that, notwithstanding the
interpretation of the Superior Court which was
overriding purpose, the proper interpretation of
the Rule is that it does not purport to address
the remand scenario, and thus a party cannot
be faulted upon pain of waiver for failing to
file post-trial motions to a proceeding upon
remand which amounts to less than an actual
trial. A remand proceeding such as the one
here, that relies on an existing record, is not a
trial even if the trial court draws different
conclusions from that record to comport with
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proceeding in this instance, where the trial
judge merely reached a different damage
calculation based upon facts and contract
and Rule 227.1 does not apply.
Newman, 52 A.3d at 1250-51 (emphasis added). Therefore, based on this
analysis, the Supreme Court vacated the decision of the Superior Court and
remanded the case to this Court for a consideration of the merits of the
appeal. Id.
The Supreme Court in Newman did not explicitly overrule Cerniga.
See id. at 1251. We conclude, however, that the Supreme Court implicitly
did so. Cerniga, in which an appeal was quashed for failure to file post-trial
motions, did not involve a remand proceeding where new evidence was
introduced. See Cerniga, 862 A.2d at 1274-75. The Newman Supreme
Court ruled as follows:
does not [1] involve taking new evidence or [2] resolv[e] a new factual
dispute is not a trial within the meaning of Rule 227.1, and does not require
the filing of new post- Newman, 52 A.3d at 1251. Thus, it is
apparent from Newman that if, on remand, a trial court relies on the
existing record to draw conclusions consistent with the remand directive,
post-trial motions are not required prior to a party appealing the remand
decision to this Court. Id. at 1251. Cerniga cannot withstand scrutiny in
light of this holding. See Cerniga, 862 A.2d at 1274-75.
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In the wake of Newman, it is unclear what remand proceedings
require the filing of post-trial motions to preserve matters for appeal. For
example, there would appear to be no question that, if our Court were to
remand a case for a new trial, the proceedings that would take place on
remand would be a trial and Rule 227.1 would apply. However, the instant
matter falls into a gray area.
First, in this case, on remand, the trial court held an evidentiary
hearing in which much of the evidence was evidence that the trial court had
already heard during the original trial. N.T., 5/9/12, at 12-36. The purpose
of the evidentiary hearing was for the trial court to determine the damages
th
Mr. Agostinelli had committed fraud. See id. at 4. The trial court heard
evidence from Dr. Edwards, who testified regarding the several categories of
loans he took out in both his
received the proceeds. Id. at 10. Dr. Edwards further testified that the
completed on Barnbridge. Id. at 21. The only new evidence that Dr.
Edwards introduced at this evidentiary hearing was that he had to take out
and pay interest on personal loans in order complete work on Barnbridge
against Barnbridge and used those funds for personal expenses. See id. at
34-37. As a result, most of the new damages calculations that the trial
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court made on remand were the result of evidence that was already part of
the original record.
Second, the record reflects that the trial court, on remand, resolved
factual disputes, including the new calculations of damages. See Opinion
and Order, 2/7/13, at 6-7; Opinion and Order, 6/14/13, at 4-5; see also
Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1240
(Pa. Super. 2012), appeal denied, 65 A.3d 414 (Pa. 2013) (stating that the
calculation of damages is a question of fact). The trial court also made a
new conclusion of law. A dispute arose on remand regarding the time from
which the trial court should calculate the six percent simple interest awarded
by this Court. Trial Court Opinion and Order, 2/7/13, at 3-4; see also
Agostinelli, 223 MDA 2011, at 17. The Agostinellis argued that the trial
court should have calculated the interest from June 17, 2010, the date when
the trial court entered its original order awarding LETWO, Dr. Edwards, and
Jon damages. Opinion and Order, 2/7/13, at 3. The Edwardses contended
that the trial court should calculate the interest from the dates the
Agostinellis deprived LETWO, Dr. Edwards, and Jon of the converted funds.
Id. at 3-5. The trial court found that the Edwardses were entitled to interest
from the date the Agostinellis deprived them of the converted funds as a
matter of law. Id. (citing Spang & Co. v. USX Corp., 599 A.2d 978, 984
(Pa. Super. 1991)). This determination required the trial court to make
factual findings and conclusions of law.
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Third, the record reflects that the Edwardses intended for their
February 21, 2013 motion for reconsideration, filed after the February 7,
2013 opinion and order on remand, to be a motion for post-trial relief
pursuant to Pennsylvania Rule of Civil Procedure 227.1. See
Reconsideration of the February 7, 2013 Order, 3/14/13, at ¶ 1. In their
motion to strike, the Edwardses stated that they filed their February 21,
2013 motion for reconsideration pursuant to Rule 227.1. See id. However,
the Edwardses filed their motion on February 21, 2013, more than 10 days
after the filing of the February 7, 2013 order. The Edwardses incorrectly
argued that their motion for reconsideration was a timely post-trial motion,
asserting that they did not receive notice of the February 7, 2013 order until
February 11, 2013. See id. However, Rule 227.1 requires parties to file
post-
See Pa.R.C.P. 227.1(c)(2). The date of filing is the date
ket that notice of entry of the order
Edwardses attempted to argue that the trial court should have stricken the
post-trial
motion. See
Record and Motion for Reconsideration of the February 7, 2013 Order,
3/14/13, at ¶¶ 2-3. In contrast, at the March 25, 2013 hearing on the
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that the Newman Court held that post-trial motions are not required absent
Newman
in its June 14, 2013 opinion and order, holding that
apply to evidentiary hearings, like the post-remand damages hearing in this
at 2.
Therefore, in this case, we encounter a situation where the trial court
held an evidentiary hearing on remand and in which the trial court relied
heavily on the existing record to make new findings of fact and conclusions
of law. The Edwardses believed that Rule 227.1 required them to file post-
trial motions in order to preserve issues for appeal. Conversely, both the
Newman forecloses the
requirement of post-trial motions on remand where the proceedings fall
short of a full trial. The fact the trial court relied heavily on the existing
record in making new findings of fact and conclusions of law on remand, and
the inherent confusion resulting to all parties involved in this case in their
attempt to interpret the Newman decision, we cannot say that Rule 227.1
required the filing of post-trial motions in this case. While the trial court on
remand relied in part on an existing record but also heard testimony from a
witness who was cross-examined, we cannot say with any certainty that this
Newman court. Newman, 52
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A.3d at 1250-51. Thus, we conclude that where, as here, on remand, the
trial court relies on both the record existing prior to the appeal and new
evidence to reach a decision, post-trial motions are not required to preserve
issues for appeal.
We now turn to the merits of the case before us. Our standard of
review for non-jury proceedings is as follows:
Our review in a non-jury case is limited to whether
the findings of the trial court are supported by
competent evidence and whether the trial court
committed error in the application of law. We must
and effect as the verdict of a jury and, accordingly,
may disturb the non-
findings are unsupported by competent evidence or
the court committed legal error that affected the
outcome of the trial. It is not the role of an appellate
court to pass on the credibility of witnesses; hence
we will not substitute our judgment for that of the
fact[-]finder. Thus, the test we apply is not whether
we would have reached the same result on the
evidence presented, but rather, after due
consideration of the evidence which the trial court
found credible, whether the trial court could have
reasonably reached its conclusion.
Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.
2012).
In the first issue Mrs. Agostinelli raises on appeal, she claims that the
trial court erred by attributing to her the fraud committed by her husband.
Brief at 4. After reviewing the certified record, we conclude
that the trial court never attributed the fraud committed by Mr. Agostinelli to
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in this regard.
In the original opinion and verdict entered on June 17, 2010, the trial
court determined that the Agostinellis had personally benefitted from their
conversion of LETWO funds. Trial Court Opinion and Verdict, 6/17/10, at 7,
11. Likewise, on remand, the trial court fou
Agostinelli defrauded [the Edwardses] and used funds from LETWO for the
benefit of he and [Mrs. Agostinelli]. Trial Court Opinion and Order, 2/7/13,
a
Agostinelli; it merely found, as it did in the June 17, 2010 opinion and
verdict, that she benefitted from converted funds.
Moreover, the Agostinellis never challenged in their post-trial motions
the finding from the June 17, 2010 opinion and order that Mrs. Agostinelli
had personally benefitted from their conversion of LETWO funds. Rule
227.1(b)(2) provides that a party waives those issues that they do raise in
post-trial motions. Pa.R.C.P. 227.1(b)(2). As a result, Mrs. Agostinelli
properly be raised at this juncture. See Pa.R.C.P. 227.1(b)(2). Therefore,
Mrs. Agostinelli is not entitled to relief on this issue.
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In the second and third issues raised by Mrs. Agostinelli, she claims
that the trial court erred by divesting her of her 50 percent share in LETWO
Brief at 4. Based upon our review of the
certified record, we conclude that the trial court erred by not crediting Mrs.
Agostinelli with her 50 percent share in LETWO on remand.
t
appeal, the trial court found that LETWO had $480,693.48 in assets and that
Mrs. Agostinelli was entitled to 50 percent of those assets, or $240,346.74.
Trial Court Opinion and Verdict, 6/17/10, at 12. The trial court also found
that the Edwardses had a combined capital account of $283,239.89 and that
the Agostinellis had a negative capital account of $186,224.92, which
represented the amount of money they converted from LETWO. Id. The
46.74)
towards evening out her capital account with the Edwardses and repaying
the money the Agostinellis had converted from LETWO. Id. In the October
interest in LETWO because it had already credited her with the value of that
interest. Trial Court Opinion and Order, 10/29/10, at 9-10, 12.
credit Mrs. Agostinelli with a 50 percent interest in LETWO in their Rule
1925(b) statement in their first appeal. Rule of Appellate Procedure
1925(b)(4) provides that where a trial court orders a concise statement of
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and/or not raised in accordance with the provisions of this paragraph (b)(4)
the trial court ordered a 1925(b) statement from both the Edwardses and
the Agostinellis, and the Edwardses never raised the issue of t
decision to credit Mrs. Agostinelli with a 50 percent interest in LETWO.
Moreover, on appeal, when the Agostinellis raised a challenge to the
not dissolved LETW
the company. Agostinelli, 223 MDA 2011, at 24-26. Because the
Edwardses never challenged the trial court crediting Mrs. Agostinelli with her
50 percent interest, our Court did not address the issue in the first appeal or
further proceedings consistent with this decision and for award of simple
inter Id. -settled that a trial
Nigro
v. Remington Arms Co., Inc., 637 A.2d 983, 988 (Pa. Super. 1993),
abrogated on other grounds, Aldridge v. Edmunds, 750 A.2d 292 (Pa.
2000); see also Gocek v. Gocek, 612 A.2d 1004, 1009 n.7 (Pa. Super.
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Agostinelli of her 50 percent interest in LETWO on remand and it erred by
doing so.
order the trial court issued on remand, it determined that the Agostinellis
owed LETWO $278,237.15 in damages and that Mrs. Agostinelli was not
required to make a monetary capital contribution to LETWO in accordance
and Order, 6/14/13, at 4. Based on our determination that the trial court
erred by divesting Mrs. Agostinelli of her 50 percent interest in LETWO, or
$240,346.74, we now credit her with that interest. After subtracting the
$240,346.74 from the $278,237.15 in damages that the Agostinellis owe
LETWO, we determine that the appropriate damage award to LETWO is
$37,890.41.
Based on the foregoing we conclude that Rule 227.1 did not require
Mrs. Agostinelli to file post-trial motions in order to preserve issues for
review in this case. We further conclude that the trial court erred by
divesting Mrs. Agostinelli of her 50 percent interest in LETWO on remand
since this was outside of the scope of the remand order. Therefore, we
credit her with that interest, or $240,346.74. After applying that amount
against the $278,237.15 damage award to LETWO, the appropriate damage
award owed to LETWO is $37,890.41.
Order affirmed in part and vacated in part. Jurisdiction relinquished.
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J-A10011-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
- 24 -
Agostinelli, L. v. Edwards, J.
Combined Opinion