J-A25025-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
1004 SOUTH 25TH STREET TRUST : IN THE SUPERIOR COURT OF
SUSAN BLOOMGARDEN, TRUSTEE : PENNSYLVANIA
AND GEORGE KUNEY :
:
:
v. :
:
:
RICHARD BENNETT, INDIVIDUALLY & : No. 1468 EDA 2017
D/B/A BENNETTS PLUMBING AND :
HEATING AND WANDA MILLER :
:
:
APPEAL OF: GEORGE KUNEY :
Appeal from the Judgment Entered June 13, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2014, No. 2373
1004 SOUTH 25TH STREET TRUST : IN THE SUPERIOR COURT OF
SUSAN BLOOMGARDEN, TRUSTEE : PENNSYLVANIA
AND GEORGE KUNEY :
:
:
v. :
:
:
RICHARD BENNETT, INDIVIDUALLY & : No. 1493 EDA 2017
D/B/A BENNETTS PLUMBING AND :
HEATING AND WANDA MILLER :
:
:
APPEAL OF: 1004 SOUTH 25TH :
STREET TRUST :
Appeal from the Order Entered April 5, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2014 No. 2373
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, J.: FILED APRIL 30, 2019
J-A25025-18
In these consolidated appeals, George Kuney, pro se, and 1004 South
25th Street Trust (“the Trust”) appeal from the judgment entered after the
trial court found that Richard Bennett had not caused an oil leak that damaged
property owned by the Trust. The Trust argues the trial court erred in refusing
to reopen the record to consider photographs of the oil leak that were not
available at trial. Kuney raises eight separate issues, which can be grouped
into four categories: (1) the trial court erred in striking the Trust’s claims for
punitive damages; (2) the trial court erred in finding that Kuney did not have
any individual standing to participate in this matter; (3) the trial court erred
or abused its discretion in finding that Bennett did not cause the oil leak; and
(4) the trial court erred in not reopening the record to admit the newly
discovered photographs. We affirm.
The facts of this case are largely undisputed. As aptly noted by the trial
court, the disputed issues of fact were whether Bennett had caused the leak
and the amount of damages suffered by the various parties. See Trial Court
Opinion, 12/26/17, at 5. The parties do not dispute that Wanda Miller hired
Bennett and his company, Bennett’s Plumbing and Heating,1 to fix plumbing
issues in the basement of 1006 South 25th Street. Miller owned the residence,
although the parties did dispute whether it was her primary residence.
____________________________________________
1There is no indication in the record that Bennett’s Plumbing and Heating is a
separate, limited liability entity. For ease of reading, we therefore will refer
solely to Bennett as the interested party in this litigation.
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On December 19, 2012, approximately one month after Bennett had
last worked on 1006 South 25th Street, he returned to address continuing
plumbing issues in the basement. The next day, Wanda Miller testified that
she discovered an oil leak in the basement of her property. It was later
determined that an oil fuel line in the basement had been severed, causing
the oil spill.
The spill spread under the shared basement wall with 1004 South 25 th
Street, which the Trust owned. Tenants at 1004 South 25th Street complained
of oil fumes to Kuney, who inspected the property about a month after the
spill. The exact nature of Kuney’s relationship to the Trust is a subject of legal
dispute between the parties.
Kuney instructed the tenants to use cat litter on the basement floor to
absorb the spill and further directed them to run fans to ventilate the
basement. The Trust lowered the tenants’ rent by $400 per month in order to
compensate them for higher utility bills resulting from the fans. Miller
subsequently filed suit against Bennett. Shortly thereafter, the Trust filed a
complaint against Miller, Bennett, and another contractor, Active Plumbing
and Drain Cleaning (“Active”).
These two lawsuits were consolidated. In relevant part, the Trust’s
amended complaint asserted that Bennett had negligently severed the oil fuel
line, causing the spill.
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Active and Miller reached settlement agreements with the Trust and are
not a subject of this appeal. The Trust’s claims against Bennett proceeded to
a bench trial, with Miller participating solely as a fact witness.
During her testimony, Miller testified to the existence of photographic
negatives she had taken of the spill in January 2013. These photographs had
not been produced in discovery. Instead, the parties had all relied on
photographs taken by Kuney more than four months after the spill.
The trial court ordered Miller to have the negatives developed and to
share them with Kuney, the Trust, and Bennett. However, the photographs
were not provided to the parties until after the conclusion of the trial.
The trial court found that Bennett was a more credible witness than
Miller and entered a verdict finding that Bennett did not cause the spill.
Counsel for Kuney and the Trust then withdrew his appearance on behalf of
Kuney, but continued to represent the Trust.
Kuney subsequently filed a pro se motion for post-trial relief, which the
Trust joined.2 Among a multitude of requests to reconsider the evidence
presented, the motion requested the court reopen the record to consider
Miller’s photographs of the spill. The motion requested the court order Bennett
to attend mediation or, in the alternative, to enter punitive sanctions against
Bennett.
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2 Kuney and the Trust filed separate notices of appeal on the same date as
the motion for post-trial relief. This Court quashed the appeals as premature.
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At the hearing on the post-trial motion, the court reviewed Miller’s
photographs. It also directed Kuney and the Trust to submit briefs detailing
the nature of Kuney’s relationship to the Trust. The court sought to understand
why both Kuney and the Trust were proceeding as separate entities post-trial.
After receiving these briefs, the court denied the Trust’s motion to re-
open the record. It further dismissed Kuney’s motion, finding he had no
standing in his individual capacity.
Kuney and the Trust separately filed premature appeals that were
perfected when judgment was entered on June 13, 2017. We consolidated the
appeals.
The trial court ordered Kuney and the Trust to file and serve statements
of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Kuney
timely filed and served his 1925(b) statement on the trial court. While the
Trust timely filed its 1925(b) statement, it failed to timely serve the trial court
with a copy.
Before we can reach the substantive issues raised by Kuney and the
Trust, we must address the Trust’s failure to serve the trial court with its
1925(b) statement. Rule 1925(b) allows a trial court to order an appellant to
provide a concise list of the issue claims he wishes to raise on appeal. The
court’s order must direct the appellant to file the statement and serve it upon
the parties and the court within a definite time period no shorter than 21 days.
See id.
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If the court files such an order, the appellant must file the statement
and serve the parties and the court within the appropriate period. See Rule
1925(b)(1). A Rule 1925(b) Statement is necessary for appropriate appellate
review. “This Rule is a crucial component of the appellate process. It is
intended to aid trial judges in identifying and focusing upon those issues that
the parties plan to raise on appeal.” 16A Standard Pennsylvania Practice 2d §
88:24. Our Supreme Court has stated:
Our jurisprudence is clear and well-settled, and firmly establishes
that: Rule 1925(b) sets out a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement,
when so ordered; any issues not raised in a Rule 1925(b)
statement will be deemed waived; the courts lack the authority to
countenance deviations from the Rule's terms; the Rule's
provisions are not subject to ad hoc exceptions or selective
enforcement; appellants and their counsel are responsible for
complying with the Rule's requirements; Rule 1925 violations may
be raised by the appellate court sua sponte[.]
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
An en banc panel of this Court observed that:
Our [Pennsylvania] Supreme Court intended the holding
in [Commonwealth v.] Lord to operate as a bright-line rule,
such that failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised. Given the automatic nature of this type of waiver, we are
required to address the issue once it comes to our attention.
Indeed, our Supreme Court does not countenance anything less
than stringent application of waiver pursuant to Rule 1925(b): [A]
bright-line rule eliminates the potential for inconsistent results
that existed prior to Lord, when ... appellate courts had discretion
to address or to waive issues raised in non-compliant Pa.R.A.P.
1925(b) statements. Succinctly put, it is no longer within this
Court's discretion to ignore the internal deficiencies of Rule
1925(b) statements.
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Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224 (Pa. Super. 2014) (en banc) (internal quotation marks and citations
omitted; emphasis added).
In determining whether an appellant has waived issues on appeal based
on non-compliance with Rule 1925, it is the trial court's order that triggers
appellant's obligation under the Rule. See In re Estate of Boyle, 77 A.3d
674, 676 (Pa. Super. 2013). Accordingly, we look to the language of the order
to determine whether the trial court complied with Rule 1925. See id.; Berg
v. Nationwide Mutual Insurance Company, Inc., 6 A.3d 1002, 1007–08
(Pa. 2010)(plurality).
Here, we have carefully reviewed the court's Rule 1925(b) order.
Specifically, in relevant part, the trial court's order specified that the
statement had to be filed and served on the court no later than May 30, 2017.3
Yet, the trial court asserts that it was not served with a copy of the Trust’s
statement. See Trial Court Opinion, 12/26/17, at 11.
Bennett, in his brief, argues that the Trust’s claims are waived due to
the failure to serve the trial court. The Trust has not responded to the court’s
assertion. It does not discuss the issue of its Rule 1925 statement in its brief.
____________________________________________
3 The docket indicates Rule 236 notice of the order was provided on May 8,
2017. Twenty-one days would have been Monday, May 29, 2017. However,
that Monday was a court holiday, and therefore the Trust’s statement was
timely filed on May 30, 2017. See Pa.C.S.A. § 1908.
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Nor has it filed any other document with this Court addressing the court’s
assertion that it was not served.
However, the Trust’s Rule 1925(b) statement contains a certificate of
service. The trial judge is listed first on the certificate of service. We are
therefore presented with a record that reveals a disputed issue of fact.
Rule 1925 includes a process where a case may be remanded by an
appellate court for the filing of a Rule 1925 statement:
(c) Remand.
(1) An appellate court may remand in either a civil or criminal case
for a determination as to whether a Statement had been filed
and/or served or timely filed and/or served.
(2) Upon application of the appellant and for good cause shown,
an appellate court may remand in a civil case for the filing nunc
pro tunc of a Statement or for amendment or supplementation of
a timely filed and served Statement and for a concurrent
supplemental opinion.
Pa.R.A.P. 1925(c). The current circumstances would normally require a
remand under Rule 1925(c). Nevertheless, we conclude a remand is
unnecessary, as even if the Trust’s sole issue on appeal is properly before us,
it merits no relief.
The Trust contends the court erred in failing to re-open the record to
consider the after-discovered photographs taken by Miller. Normally, after-
discovered evidence would constitute grounds to request a new trial. See
Claudio v. Dean Machine Co., 831 A.2d 140, 146 (Pa. 2003). Since this was
a bench trial, the Trust merely asked the court to reopen the record to consider
the new evidence. And the court did just that.
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At the hearing on the post-trial motions, the court reviewed the after-
discovered photographs taken by Miller. See Trial Court Opinion, 12/26/17,
at 8. The Trust argued that the photographs demonstrated that Bennett had
severed the fuel line. The court disagreed.
This [c]ourt found these photographs would not have changed the
outcome. The essence of the Trust’s argument is the newly
acquired photographs provided visual support that Appellees
actually cut the pipe. Specifically, the Trust alleged the
photographs showed an additional pipe with a fresh cut not
depicted in the photographs presented at trial.
However, this [c]ourt did not find that Ms. Miller’s photographs
compelled a different result. First, the new photos were grainy and
ambiguous, and did not clearly tie Appellees’ conduct to the harms
allegedly suffered by the Trust. Second, as noted earlier, there
really was no dispute that this line was in fact severed and that
this caused the oil to leak onto the basement floor. The real issues
at trial were who severed this fuel line and the extent of damages
sustained by Mr. Kuney and the Trust as a result of the ensuing
oil leak. The Appellants hung their case on the close proximity in
time from when the [Appellees] did the plumbing repair in the
basement and Ms. Miller discovered the oil spill, and while this
[c]ourt fully considered this circumstantial evidence, ultimately
this [c]ourt found Appellants’ theory to be lacking, and Appellees’
witnesses to be more credible.
Id., at 19.
Our independent review of these photographs largely comports with the
trial court’s summary. While the photographs vary in quality and clarity, they
do not appear to provide any new information that was not present in the
photographs that were presented to the court at trial. As the ultimate arbiter
of fact at this trial, the court’s determinations of credibility and weight of the
evidence are entitled to deference. The Trust has not met its burden to
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establish the court abused its discretion in concluding the Miller photographs
would not have compelled a different verdict. As a result, even if the Trust
properly preserved the sole issue presented in its appellate brief, it is due no
relief.
Turning to Kuney’s appeal, we must first address Kuney’s claim that the
court improperly found he did not have standing to participate in this litigation
in his own right. The court found that Kuney had failed to establish “a legal
justification for his involvement in this matter as a pro se litigant.” Id., at 14.
The court correctly noted that Kuney’s only connection to the property located
at 1004 South 25th Street is that he loaned a corporation, known as Geo-
Stellar Inc., the money used to purchase the property. Geo-Stellar then
transferred the property to the Trust. Geo-Stellar is the only beneficiary
named in the trust agreement. The court concluded that under these
circumstances, “any conceivable interests [Kuney] might have in 1004 S. 25th
St. flow through Geo-Stellar Inc. and the Trust, entities that must, under
Pennsylvania law, be represented by attorneys.” Id.
Upon reviewing the trust agreement, we find that the exact nature of
the Trust is unclear. The agreement identifies itself as a “declaration of trust.”
Agreement and Declaration of Trust, 6/29/05, at 1. It names an officer of Geo-
Stellar as trustee, who “will hold title of the property on behalf of Geo-Stellar.”
Id. The sole named beneficiary of the trust, Geo-Stellar, is given the right to
all earnings and profits arising from trust property. See id. Further, the
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beneficiary is given the power to “convey or otherwise deal with the title to
the Trust Property,” and “manage and control the Trust property.” Id., at 1-
2.
Later, the agreement indicates that “[t]he objects and purposes of this
Trust shall be to hold title to the Trust Property and to protect and conserve
it until its sale or other disposition.” Id., at 5. It further explicitly disclaims
any intention to create “a corporation, de facto or de jure, or a Massachusetts
Trust, or any other type of business trust, or an association in the nature of a
corporation, or a co-partnership or joint venture by or between the Trustee
and the Beneficiaries, or by or between the Beneficiaries.” Id.
Other provisions in the agreement provide that “full legal and equitable
title to the Trust property” vests in the trustee, id., at 2, that no beneficiary
has the power to legally bind any other beneficiary, see id., at 7, and that
there “shall be no annual meeting of the Beneficiaries.”
We cannot decipher what type of entity the Trust was intended to be,
let alone what it actually is. What is clear is that Kuney has no connection to
the Trust, other than having loaned the purchase money for the Trust property
to the Trust’s sole named beneficiary, Geo-Stellar. This relationship would
render the court’s conclusion that Kuney has no standing in this matter
eminently reasonable.
However, as Kuney notes, the issue of his standing was waived. “Unlike
personal jurisdiction, the issue of standing may be waived by a party if not
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objected to at the earliest possible opportunity.” In re Estate of Brown, 30
A.3d 1200, 1204 (Pa. Super. 2011) (citation and internal quotation marks
omitted). Bennett never objected to Kuney’s presence as a party prior to the
verdict. The court therefore erred in raising the issue sua sponte and
dismissing Kuney’s pro se filings on this ground.
However, we agree with the trial court that Kuney has otherwise waived
all but one of his other claims on appeal. Any issue not raised in a post-trial
motion is waived on appeal. See D.L. Forrey & Associates, Inc. v. Fuel
City Truck Stop, Inc., 71 A.3d 915, 919 (Pa. Super. 2013). In his post-trial
motion, Kuney did not request a new trial, judgment notwithstanding the
verdict, or even the re-opening of the record. Rather, he first requested that
Bennett be forced to participate in mandatory mediation of this dispute.
Motion for Reconsideration of Judgment Notwithstanding the Verdict,
12/16/16, at 22 (unnumbered). Kuney has never presented any authority for
his desired remedy of mandatory mediation of his claims. Further, he has
completely abandoned this argument on appeal. Any issue with the court’s
refusal to order mandatory mediation is therefore waived. See Moranko v.
Moranko, 118 A.3d 1111, 1117 n.3 (Pa. Super. 2015)
In the alternative, Kuney argued in his pro se post-trial motion that the
court should enter punitive sanctions against Bennett for not being more
amenable to settling the claims in this litigation. See Motion for
Reconsideration of Judgment Notwithstanding the Verdict, 12/16/16, at 23
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(unnumbered). He listed this issue in Rule 1925(b) statement, and renews
this argument on appeal.
Kuney contends the court erred in failing to find the allegations in the
Trust’s complaint sufficient to state a case for the imposition of punitive
damages. Specifically, Kuney argues the evidence was sufficient to support
the imposition of punitive damages because Bennett “probably knew of the
discharge before leaving the job,” and yet did not inform Wilson or any other
party. See Kuney’s Brief, at 61.
We review Kuney’s claim pursuant to the following standards:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court only
if its findings of fact are not supported by competent evidence in
the record or if its findings are premised on an error of law.
However, as the issue... concerns a question of law, our scope of
review is plenary.
Atlantic LB, Inc. v. Vrbicek, 905 A.2d 552, 557 (Pa. Super. 2006) (citation
omitted, ellipses in original).
“Punitive damages are damages, other than compensatory or nominal
damages, awarded against a person to punish him for his outrageous conduct
and to deter him and others like him from similar conduct in the future.”
Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005)
(citations omitted). They are therefore “proper only in cases where the
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defendant’s actions are so outrageous as to demonstrate willful, wanton or
reckless conduct.” Id. (citations omitted). “A showing of mere negligence, or
even gross negligence, will not suffice to establish that punitive damages
should be imposed.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa.
2005) (citation omitted).
The trial court, sitting as fact-finder, found Bennett’s testimony more
credible than Wilson’s. Further, the court found that Kuney and the Trust had
failed to prove, by a preponderance of the evidence, that Bennett had severed
the oil line. We see no reason why these credibility determinations constitute
an abuse of the trial court’s discretion. Given this predicate, there is simply
no basis to impose punitive damages on Bennett.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/19
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