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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
HARRY SCHLACHTERMAN AND : IN THE SUPERIOR COURT OF
KIMBERLY CALLAHAN, : PENNSYLVANIA
:
Appellants :
:
v. :
:
CHARLES B. CALKINS ESQ., :
INDIVIDUALLY AND IN HIS :
CAPACITY AS GUARDIAN OF :
FRANK MARTZ HENRY AND :
ROBERT D. O’BRIEN, ESQ., AND :
GRIFFITH, STICKLER, LERMAN, : No. 2683 EDA 2019
SOLYMOS & CALKINS AND :
FRANK MARTZ HENRY :
Appeal from the Judgment Entered July 31, 2019,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 170900799
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: June 25, 2020
Harry Schlachterman (“Schlachterman”) and Kimberly Callahan
(collectively, “appellants”) appeal from the July 31, 2019 judgment entered in
the Court of Common Pleas of Philadelphia County in favor of Charles B.
Calkins, Esq., individually and in his capacity as guardian of Frank Martz Henry
(“Attorney Calkins”); Robert D. O’Brien, Esq. (“Attorney O’Brien”); Griffith,
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Stickler, Lerman, Solymos & Calkins (“law firm”); and Frank Martz Henry
(“Henry”) (collectively, “appellees”).1 We affirm.
The trial court set forth the following:
[Schlachterman and Henry] were partners in a
business. [Schlachterman and Henry] entered into a
lease with Axelrod-Giannascoli Realty Group
(“Axelrod Realty”). The lease referred to
[Schlachterman and Henry] as “Lessee.” The lease
also contained a provision allowing Axelrod Realty to
confess judgment against Lessee if Lessee breached
the lease. On November 17, 2009, Axelrod Realty
confessed judgment against [Schlachterman and
Henry] in the amount of $231,255.00.
Following the Confession of Judgment, [Henry]
through his attorneys, [Attorney Calkins] and
[Attorney O’Brien] of [the law firm], litigated his own
interests by filing the following motions: an
Emergency Motion to Strike the Judgment on
December 1, 2011; a Motion to Open and/or Strike
the Confessed Judgment and an Emergency Motion to
Stay the Proceedings on December 5, 2011; a second
Motion to Open and/or Strike the Confessed Judgment
on January 31, 2012; and a Motion to Postpone the
Sherriff’s Sale on January 31, 2012.
[] Henry also agreed to purchase the confessed
judgment from Axelrod Realty, in exchange for a
payment of $262,512.96. Accordingly, on February 8,
2012, Alexrod Realty filed an “Order to Satisfy
Judgment Against [] Henry Only,” which stated: “To
the Prothonotary: Kindly mark the money judgment
in favor of [Axelrod Realty] and against
[Schlachterman and Henry] in the above matter
SATISFIED as to [] Henry only, upon payment of your
costs.” [] Henry and Axelrod Realty executed a
written agreement, under which Axelrod Realty
1 We have revised the caption to reflect that the appeal is properly taken from
the judgment entered on the verdict on July 31, 2019.
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purported to assign the $231,255.00 confessed
judgment against [Schlachterman] to [Henry].
Thereafter, [Attorney] Calkins in his capacity as
counsel for [] Henry, testified that he sought to collect
half of the confessed judgment from [] Schlachterman
by initiating litigation. In response, [] Schlachterman
attempted to have the confessed judgment marked
satisfied, claiming that [] Henry had already paid
Axelrod Realty in full for the judgment.
Initially, the original Trial Court[2] upheld [] Henry’s
collection efforts. On April 7, 2014, the original Trial
Court denied [] Schlachterman’s Petition [to] Strike
the Confessed Judgment. On April 17, 2014 the
original Trial Court denied [] Schlachterman’s Motion
for Reconsideration of his Petition to Strike the
Confessed Judgment. On February 20, 2015, the
original Trial Court denied [] Schlachterman’s Motion
to Mark the Confessed Judgment as Satisfied.
Eventually, however, [] Schlachterman filed a Motion
for Reconsideration to Mark the Judgment as
Satisfied, which the original Trial Court granted on
March 11, 2015. [] Henry filed a Notice of
Appeal.[Footnote 6]
[Footnote 6] [] Henry passed away in
October 2015, while the case was on
appeal.
2 Judge Nina Wright Padilla served as the trial court in the action that
Axelrod-Realty Group initiated against Schlachterman and Henry seeking to
eject them from the leased premises based on the confession of judgment. In
the underlying action to this appeal, Judge Lori A. Dumas served as the trial
court. In her Rule 1925(a) opinion, Judge Dumas refers to Judge Padilla as
“the original trial court.”
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On January 21, 2016, the Superior Court issued an
Opinion[3] deeming the purported assignment, to
transfer the $231,255.00 confessed judgment from
Axelrod Realty to [] Henry, invalid for lack of
consideration. The Superior Court affirmed the
original Trial Court’s Order, marking as satisfied the
judgment against [Schlachterman and Henry].
[Attorney] Calkins testified [at the trial in the action
giving rise to this appeal] that after the Superior Court
decision, he took no further action to collect a portion
of the judgment from Schlachterman on behalf of his
client, [] Henry.
....
[Appellants] commenced this action by Writ of
Summons on September 6, 2017. [Appellants] filed a
Second Amended Complaint on August 27, 2018,
which asserted the following counts against
[appellees]: Wrongful Use of Civil Proceedings,
42 Pa.C.S.A. § 8351 (Count I), Abuse of Civil
Proceedings (Count II), Wrongful Use of Civil
Proceedings, 42 Pa.C.S.A. § 8351 (Count III),
Malicious Use of Civil Proceedings (Count IV), Fraud
(Count V), Intrusion into Seclusion (Count VI),
Intentional Infliction of Emotional Distress
(Count V[II]), and Loss of Consortium (V[III][)]. A
bench trial was held on July 11, 2019 and July 12,
2019, after which th[e trial c]ourt entered a verdict in
favor of [appellees] on all counts.
3 Axelrod-Giannascoli Realty Grp. v. Schlacterman, 136 A.3d 1035
(Pa.Super. 2016) (unpublished memorandum) (holding that law does not
support Henry’s characterization of his payment to Axelrod-Realty as
consideration for assignment of judgment, and trial court did not err in
marking judgment satisfied as to Schlachterman and Henry).
We note inconsistencies in the spelling of “Schachterman” in the previous
appeal at table citation 136 A.3d 1035. There, the caption reads
“S-c-h-l-a-c-t-e-r-m-a-n,” which is reflected on the notice of appeal, but other
filings in the appellate docket in that appeal spell the name
“S-c-h-l-a-c-h-t-e-r-m-a-n.”
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On July 22, 2019, [appellants] filed a Motion for
Reconsideration, to which [appellees] filed a Response
in Opposition on July 24, 2019. After considering the
evidence and legal arguments presented, th[e trial
c]ourt denied [appellants’] Motion on July 26, 2019.
On August 12, 2019, [appellants] filed a Notice of
Appeal. On September 26, 2019, th[e trial c]ourt filed
an Order pursuant to Pa.R.A.P. 1925(b), instructing
[appellants] to file a Concise Statement of Errors
Complained of on Appeal. On October 16, 2019,
[appellants complied]. On October 28, 2019,
[appellants] filed an Amended Statement of Errors.
Trial court opinion, 11/21/19 at 2-5 (citations to the record and the Superior
Court memorandum, record citations, and footnotes 2, 3, 4 omitted; some
brackets in original).
On November 1, 2019, this court entered an order directing appellants
to show cause as to why their appeal should not be dismissed for filing a
motion for reconsideration, as opposed to the requisite post-trial motion
pursuant to Pa.R.A.P. 227.1, within ten days. Appellants timely complied.
After reviewing appellants’ motion for reconsideration and their response to
rule to show cause, we conclude that the motion for reconsideration was the
functional equivalent of a post-trial motion. See Gemini Equip. Co. v.
Pennsy Supply, Inc., 595 A.2d 1211, 1214 (Pa.Super. 1991) (declining to
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construe rules of civil procedure so narrowly so as to permit minor procedural
error to effect litigant’s substantive rights).4 This appeal is ripe for our review.
Appellants raise the following issues for our review:
1. Whether the [t]rial [c]ourt erred and/or abused
its discretion in finding in favor of [a]ppellees
and against [a]ppellants in their claim under
42 Pa.C.S.A. §8351 et seq[.], where the
evidence and record clearly establish[] that
[a]ppellees procured, initiated, and continued
civil proceedings against [a]ppellants in a
grossly negligent manner and without probable
cause, and for purposes other than securing an
adjudication against them, and whhere [sic] the
underlying proceedings terminated in favor of
[a]ppellants[?]
2. Whether the [t]rial [c]ourt erred and/or abused
its discretion in determining [a]ppellees were
conducting lawful discovery and therefore were
justified in their purpose and not liable to
[a]ppellants under 42 Pa.C.S.A. §8351
et seq[.], where [a]ppellees had no legally
cognizable claim to enforce, and even if they
had, their methods were improper and illegal
and sought to contravene clearly defined legal
procedures[?]
Appellants’ brief at 3.
It is well settled that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). We
further note that “[t]o maximize our efficiency and to maintain and enhance
4 We recognize that an appeal does not lie from the denial of a motion for
reconsideration and that the filing of a motion for reconsideration does not
extend the time to file an appeal. In this case, however, all actions were taken
within 30 days of the verdict and the appeal was filed within 30 days of the
entry of judgment.
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the quality of our dispute resolution process, strict compliance with the
procedures designed for issue preservation is essential.” Dollar Bank v.
Swartz, 657 A.2d 1242, 1245 (Pa. 1995).
Post-trial motions serve an important function in the
adjudicatory process because they provide the trial
court with an opportunity to correct errors in its ruling
and avert the need for appellate review. In 1984, this
court adopted Rules 227.1 through 227.4 to establish
uniform procedures for post-trial relief in actions at
law and equity, and actions tried with or without a
jury. Rule 227.1 addresses waiver at the trial court
level, as a matter of the trial court’s post-trial power.
Rule 227.1(b) establishes that issues not preserved
. . . in post-trial motions . . . are waived. As this Court
ruled in Lane Enterprises, Inc. v. L.B. Foster Co.,
[] 551 Pa. 306, 710 A.2d 54), Rule 227.1 “requires
parties to file post-trial motions in order to preserve
issues for appeal,” and “[i]f an issue has not been
raised in a post-trial motion, it is waived for appeal
purposes.”
Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 155
A.3d 39, 44 (Pa. 2017) (some citations and quotation marks omitted).
Here, in their motion for reconsideration, appellants complained that the
non-jury trial was not in compliance with Pa.R.Civ.P. 1038(a), which requires
the trial court to conduct a non-jury trial “as nearly as may be as a trial by
jury” and which affords the parties “like rights and privileges” as those
afforded in a jury trial. (Appellants’ motion for reconsideration, 7/22/19 at
1-2, ¶ 1.) Appellants then claimed that the trial court erred in permitting
appellees’ witnesses to testify beyond the scope of appellants’ direct
examination and in limiting appellants’ direct examination; in “not specifically
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spell[ing] out” the extent to which the record in the action styled Axelrod-
Giannascoli Realty Grp., supra, was inadmissible; and in not permitting
appellants to fully develop evidence to support their claims. (Id. at 2, ¶¶ 3,
5.5)
In their Rule 1925(b) statement and their amendment thereto,
appellants challenged the weight and sufficiency of the evidence. Indeed, in
their brief to this court, appellants raise weight and sufficiency challenges.
Appellants, however, did not raise weight and sufficiency challenges in their
motion for reconsideration. Therefore, appellants waive their issues on
appeal. See Pa.R.A.P. 302(a); see also Bd. of Supervisors of
Williston Twp., 155 A.3d at 44.
Judgment affirmed.
Nichols, J. joins this Memorandum.
McCaffery, J. concurs in the result.
5 Appellants’ motion for reconsideration of assignment of error at paragraph 4
reads, “Contrary to the assertions of [appellees], the question of equity to
Henry is not the matter before th[e trial c]ourt. It is purely the actions of
[appellees] in seeking to enforce a satisfied judgment that are being tried. No
actions are attributed to Henry, who for much of the action was adjudged an
[i]ncapacitated [p]erson. No service was attempted on Henry, or his estate.”
(Appellants’ motion for reconsideration, 7/22/19 at 2, ¶ 4.)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/20
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