Vonada v. Long

FORD ELLIOTT, J.,

Dissenting.

¶ 1 I respectfully dissent. I cannot agree that the procedural posture of this case excuses the filing of post-trial motions pursuant to Pa.R.Civ.P. 227.1(c). The majority states that this matter was submitted to the court upon a case stated based. To the contrary, it would appear that the procedure below was a non-jury trial on stipulated facts. See Pa.R.Civ.P. 1038.2, 42 Pa.C.S.A. (abolishing common law procedure of case stated in favor of submitting a case on stipulated facts for a decision by a judge without a jury). As noted by the majority, a trial on stipulated facts requires the filing of post-trial motions. Penn v. Nationwide Ins. Co., 363 Pa.Super. 13, 525 A.2d 400 (1987).

¶ 2 Additionally, I do not believe that either our supreme court’s decision in Wynnewood Development, Inc. v. Bank and Trust Co. of Old York Road, 551 Pa. 552, 711 A.2d 1003 (1998), or this court’s decision in O.D. Anderson, Inc. v. Cricks, 815 A.2d 1063 (Pa.Super.2003), apply to the injunctive relief sought herein.

¶ 3 Wynnewood held that the dismissal of a portion of a complaint requesting the issuance of an injunction and specific performance was immediately appealable as an interlocutory appeal as of right pursuant to Pa.R.App.P. 311(a)(4):

Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except for injunctions pursuant to Sections 3323(f) and 3505(a) of the Divorce Code, 23 Pa.C.S. §§ 3323(f) and 3505(a). A decree nisi granting or denying an injunction is not appealable as of right under this rule, unless the decree nisi (i) grants *340an injunction effective upon the entry of a decree nisi or (ii) dissolves a previously yranted preliminary injunction effective upon the entry of a decree nisi.

Id. (emphasis added).

¶ 4 Instantly, the action below was filed as a complaint in equity requesting the court to enjoin appellees from selling to anyone but appellants. This suit is nothing more than an action to enforce an agreement between the parties based on a right of first refusal. The trial court’s decree nisi resolved the whole case on its merits finding the agreement between the parties unenforceable because it was based on mutual mistake. This type of a decree nisi is specifically precluded from interlocutory review by Pa.R.App.P. 311(a)(4). See generally Smotkin v. Manhattan-Ward, Inc., 363 Pa.Super. 597, 526 A.2d 1223 (1987). Additionally, this action was not initiated pursuant to Pa.R.Civ.P. 1531 as addressed by this court in O.D. Anderson, Inc. v. Cricks, supra.

¶ 5 I would therefore dismiss the appeal for failure to file post-trial motions, thereby failing to preserve any issues for review.