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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AB RHODES, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARON E. DICK AND LARRY DICK, :
HUSBAND AND WIFE :
: No. 1683 WDA 2016
Appellants :
Appeal from the Judgment Entered on October 19, 2016
In the Court of Common Pleas of Mercer County Civil Division at No(s):
2015-1332
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JULY 10, 2018
Appellants, Sharon E. Dick and Larry Dick, husband and wife, appeal
from the judgment entered on October 19, 2016, in favor of A B Rhodes, LLC
(“A B Rhodes”) and against Appellants, in the amount of $1,861,627.00. We
affirm.
The trial court ably explained the underlying facts and procedural
posture of this case:
This matter generally arises out of the purchase and
proposed development of commercial property wherein [A B
Rhodes] planned to erect a destination winery including a
dining and banquet facility near Interstate 79 and the Grove
City Outlet Malls in Mercer County. Appellants [] were
obligated to make certain improvements to the property at
their expense within certain deadlines. Appellants failed to
take the necessary action[,] which resulted in [A B Rhodes]
filing a lawsuit seeking damages for [Appellants’] failure to
make the necessary improvements, and for [A B Rhodes’]
loss of profits.
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Essentially, the parties entered into a real estate sales
agreement on November 7, 2013[,] wherein [A B Rhodes]
purchased approximately 10 acres of commercial unimproved
property from [Appellants] for $250,000.00 subject to certain
escrow provisions. The property, however, had no access
road [and] no service by utilities including storm water,
sanitary sewer, water, gas[, or] electric. The initial complaint
sought over $600,000.00 in damages.
Appellants failed to file a timely answer or other appropriate
pleading to the complaint and took no further action when
given a [ten-]day notice of [A B Rhodes’] intent to take a
default judgment[. This] result[ed] in a default judgment
being entered against [Appellants] on February 25, 2016 for
$600,000.00. [43 days] later, [Appellants] filed a petition to
open the judgment[; this petition was denied on] May 5,
2016. That order was not appealed.
[Several months later, Appellants] filed a motion challenging
the assessment of damages by the prothonotary[. The trial
court granted Appellants’ motion on] September 30, 2016
[and, in so doing,] set[] aside the default assessment of
damages of $600,000.00[. The trial court] schedul[ed] an
evidentiary hearing on the issue of damages only. However,
the judgment in favor of [A B Rhodes] on the liability issue
remained unchallenged.
The [trial] court conducted an evidentiary hearing for the
assessment of damages in this matter on October 6 and 17,
2016[,] at which time three witnesses testified on behalf of
[A B Rhodes] and [Appellants] elected to call no witnesses.
The [trial] court rendered its [decision on] October 18,
2016[,] assessing damages against [Appellants] and in favor
of [A B Rhodes] in the amount of $1,861,627.00. [Judgment
was then entered on October 19, 2016.]
Trial Court Opinion, 4/21/17, at 1-2 (some internal capitalization omitted).
Appellants did not file a post-trial motion. Instead, Appellants filed a
notice of appeal on November 3, 2016. Appellants raise five claims on appeal:
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[1.] Whether the trial court erred in accepting Bryan Rhodes
as an expert witness where his experience and education
were insufficient to establish him as such[?]
[2.] Whether the trial court erred in admitting a business
plan/economics report authored by an out of court declarant
who did not testify at trial where the document was offered
for the truth of the matter asserted therein and no exception
to the hearsay rule applied[?]
[3.] Whether the trial court erred in awarding damages to
[A B Rhodes] which had already been recovered in a separate
action[?]
[4.] Whether the trial court erred in its award of damages
where [A B Rhodes] failed to mitigate damages[?]
[5.] Whether the trial court erred in awarding [A B Rhodes]
damages for lost profits where said damages were
speculative in nature as [A B Rhodes’] business was a start-
up business[?]
Appellants’ Brief at 4.
All of Appellants’ claims on appeal are waived, as Appellants failed to
file a post-trial motion in this case.
Pennsylvania Rule of Civil Procedure 227.1 provides, in pertinent part:
(c) Post-trial motions shall be filed within ten days after
...
(2) notice of nonsuit or the filing of the decision in the
case of a trial without jury.
Pa.R.C.P. 227.1(c) (emphasis added).
This Court has emphasized the mandatory nature of post-trial motions
under Pa.R.C.P. 227.1 as follows:
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The Pennsylvania Supreme Court has stated that the filing of
post-trial motions is mandatory if a litigant wishes to
preserve issues for appellate review. See L.B. Foster Co. v.
Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998) (“Pa.R.C.P.
227.1 requires parties to file post-trial motions in order to
preserve issues for appeal. If an issue has not been raised in
a post-trial motion, it is waived for appeal purposes.”)
In Lane Enterprises, Inc. v. L.B. Foster Co., 700 A.2d 465,
469-470 (Pa. Super. 1997), after a nonjury trial in a breach
of contract action, the trial court issued an opinion disposing
of issues the parties raised in trial memoranda. Following the
trial court's decision, instead of filing post-trial motions, the
appellant, Foster, filed a praecipe to enter judgment and a
notice of appeal. A panel of this Court reviewed the merits
of the appeal despite the lack of post-trial motions. Id. In a
one-paragraph per curiam order, the Pennsylvania Supreme
Court reversed this Court and reiterated the importance of
post-trial motions. See Lane Enterprises, Inc., 710 A.2d
at 54 and L.B. Foster Co., 710 A.2d at 55.
In other decisions applying Pa.R.C.P. 227.1 in actions at law,
our Court has consistently quashed appeals from orders or
verdicts following nonjury trials when no post-trial motions
were filed. See e.g. Baughman v. State Farm Mut. Auto.
Ins. Co., 656 A.2d 931 (Pa. Super. 1995) (quashing an
appeal taken directly from an order, captioned as a
judgment, which was entered after a nonjury trial); Krystal
Development Corp. v. Rose, 704 A.2d 1102, 1103 (Pa.
Super. 1997) (without post-trial motions after a nonjury trial,
there are no issues preserved for appellate review). The
importance of filing post-trial motions cannot be
overemphasized. “[T]his is not blind insistence on a mere
technicality since post-trial motions serve an important
function in adjudicatory process in that they afford the trial
court in the first instance the opportunity to correct asserted
trial error and also clearly and narrowly frame issues for
appellate review.” Fernandes v. Warminster Mun. Auth.,
442 A.2d 1174, 1175 (Pa. Super. 1982). Even when a litigant
files post-trial motions but fails to raise a certain issue, that
issue is deemed waived for purposes of appellate review.
See Hall v. Owens Corning Fiberglass Corp., 779 A.2d
1167, 1169 (Pa. Super. 2001) (where a claim was not
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specified in the post-trial motions, the issue was not
preserved and is, therefore, waived).
Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 428 (Pa.
Super. 2002) (internal footnote and some internal citations omitted).
In this matter, at the October 6 and 17, 2016 hearing, the trial court
heard testimony from three witnesses and accepted multiple exhibits.
Consequently, though perhaps not docketed or titled as such, the October 6
and 17, 2016 proceeding was a nonjury trial from which Appellants were
obligated to file a post-trial motion. Id.; Pa.R.C.P. 227.1(c)(2); see also
Pa.R.C.P. 1037(b)(1) (“(b) The prothonotary, on praecipe of the plaintiff, shall
enter judgment against the defendant for failure to file within the required
time a pleading to a complaint which contains a notice to defend or . . . for
any relief admitted to be due by the defendant's pleadings. (1) The
prothonotary shall assess damages for the amount to which the plaintiff is
entitled if it is a sum certain or which can be made certain by computation,
but if it is not, the damages shall be assessed at a trial at which the issues
shall be limited to the amount of the damages”) (emphasis added); see also
Appellants’ Brief at 6 (acknowledging that the underlying proceeding was “a
trial limited to the issue of damages”). Appellants filed no such post-trial
motion, rendering all appealable issues arising from the judgment waived and
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foreclosing our consideration of the matter.1 Consequently, we are
constrained to affirm.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2018
____________________________________________
1 We note our awareness of the Supreme Court of Pennsylvania’s decision in
Newman Development Group v. Genuardi’s Family Markets, 52 A.3d
1233 (Pa. 2012), holding that, under the circumstances of that matter, our
Court had improperly found the appellant’s issues waived for failure to file
post-trial motions. Newman Development Group, however, is
distinguishable from this case because, in that matter, the trial court order
appealed from was an order on remand that the trial court entered without a
proceeding constituting a “trial.” Id. at 1251. In this matter, the case is not
on remand, and the trial court’s acceptance of testimony and evidence at the
October 6 and 17, 2016 hearing plainly constituted a nonjury trial. Therefore,
pursuant to long established Pennsylvania law, Appellants were obligated to
file a post-trial motion to preserve their issues for appeal.
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