J-A23029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH C. POSH AND DOUGLAS D. IN THE SUPERIOR COURT OF
KELLY, PENNSYLVANIA
Appellants
v.
RAMI NASSAR AND SPRINGHOUSE ROAD
PARTNERSHIP, LLC AND ST. GEORGE
ANTIOCHIAN ORTHODOX CHURCH,
Appellees
No. 37 EDA 2017
Appeal from the Order Entered November 23, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2015-C-0097
______________________________________________________
JOSEPH C. POSH AND DOUGLAS D. IN THE SUPERIOR COURT OF
KELLY, PENNSYLVANIA
Appellees
v.
RAMI NASSAR AND SPRINGHOUSE ROAD
PARTNERSHIP, LLC AND ST. GEORGE
ANTIOCHIAN ORTHODOX CHURCH
APPEAL OF ST. GEORGE ANTIOCHIAN
ORTHODOX CHURCH
No. 434 EDA 2017
Appeal from the Order Entered November 23, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2015-C-0097
J-A23029-17
BEFORE: PANELLA, DUBOW, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 30, 2017
Appellants/Cross-Appellees, Joseph C. Posh and Douglas D. Kelly
(collectively “Posh”), filed a declaratory judgment action requesting
clarification of its rights and duties concerning a tract of land adjacent to a
tract owned by Appellee/Cross-Appellant, St. George Antiochian Orthodox
Church (“Church”). Church filed a counterclaim seeking monetary damages
for Posh’s failure to provide services and improvements for Church’s tract,
which Church claimed Posh was required to do under an option agreement
incorporated by reference within Posh’s deed. The trial court granted
Church’s motion for summary judgment on Posh’s declaratory judgment
action and dismissed the entire action, including Church’s counterclaim, with
prejudice. Posh appealed to this Court at 37 EDA 2017. Church cross-
appealed at 434 EDA 2017, arguing that the trial court erred by refusing to
address its counterclaim for monetary damages.
We conclude that res judicata bars Posh’s declaratory judgment action,
because Posh’s rights and duties were determined in a prior quiet title action
between the parties. We also agree with the trial court that the proper
setting for determining Church’s claim for money damages is post-judgment
* Former Justice specially assigned to the Superior Court.
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proceedings in the quiet title action, not the present declaratory judgment
action. Accordingly, we affirm in both 37 EDA 2017 and 434 EDA 2017.
There are two tracts of land at issue in this litigation: one owned by
Posh and the other owned by Church. Those tracts previously belonged to a
single tract of land totaling approximately 22.67 acres that was owned by
the Friends of St. George Orthodox Church, Inc. (“Friends”). Posh R.R., at
55a1 (Trial Ct. Order, No. 2009-C-1964, 12/30/11). Friends determined it
only needed approximately ten of those acres to build the church and related
buildings they intend to construct. Id. Rami Nassar expressed an interest
to acquire, or subdivide and arrange for others to acquire, the balance of the
property not needed by Friends for Church and related properties. Id.
Nassar proposed that the subdivided property would include at least one
tract upon which the church and related buildings would be built (“Church
Area”), while Nassar would take the other tract for ownership, sale or further
subdivision (“Excess Area”). Id.
In 1998, Nassar and Friends entered into an Option Agreement in to
memorialize the parties’ respective rights, responsibilities, and obligations in
relation to the two tracts. Id. at 56a. The Option Agreement stated that
Nassar “and his permitted successors and permitted assigns,” whom the
Option Agreement collectively labeled the “OPTIONEE”, were obligated to
1 Whenever possible, we refer to Posh’s and Church’s reproduced records for
the convenience of the parties.
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“provide and/or pay for all engineering and review costs for the subdivision
of the Property.” Posh R.R. 32a (“Option Agreement”). These obligations
included “providing line drawings showing ‘foot print’ of all buildings, walks,
parking lots, roads and other improvements, utility service lines and
determination of adequate drainage sizing and to use the plans of the
architect for the Church for all design requirements.” Id.
Section 3.2 of the Option Agreement stated that “Optionee” must
“construct and provide” access to the Church Area “at no cost nor expense
to Friends or their successors and assigns or the future owners of the Church
Area.” Id. at 33a. Section 5.2 continued:
OPTIONEE [Nassar] or his successors or assigns [Posh]
shall construct and provide, at no cost nor expense to
FRIENDS or their successors and assigns or the future
owners of the Church Area, all of the utilities necessary for
use of the Church Area, all roadway(s) from the Church
Area to Springhouse Road as shall be shown on any plan
for the subdivision of the Property, and appropriate and
adequate sized connection from the Church to and through
the Excess Area and to any municipal or other terminal
point for all utilities and drainage systems.
Id. at 35a-38a.
Under the Option Agreement, the Friends’ land was subdivided into
two lots. Id. at 56a. Friends conveyed the Church Area to Church and the
Excess Area to Nassar’s limited liability company, Springhouse Road
Partnership, LLC (“Springhouse”). Id. To ensure the Church Area would
continue to enjoy the benefits of the Option Agreement from whomsoever
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owned the Excess Area, the deed to Springhouse (the “Springhouse Deed”)
contained the following language:
UNDER AND SUBJECT TO the obligations upon Rami
Nassar, his successors and assignees as set forth in [the
Option Agreement] between GRANTOR and Rami Nassar
(the assignee to GRANTEE) the said obligations and
restrictions of the same agreement being incorporated
herein by reference, and under and subject to the
restrictions and obligations set forth on the aforesaid Plan
of subdivision.
Id. (“Encumbrance Clause”).
On January 9, 2006, Springhouse conveyed the Excess Area to Posh in
a deed which contained the same Encumbrance Clause language. Id. On
the same date, however, Posh entered into an Indemnification Agreement
with Nassar and Springhouse which provided—in conflict with the
Springhouse Deed and their own deed—that the obligations in the Option
Agreement were only obligations of Nassar and Springhouse but not of Posh.
Id. at 60a. In addition, the Indemnification Agreement provided that Nassar
would indemnify Posh for any claims “arising from or in any way, directly or
indirectly, associated with or the result of the obligations of Rami Nassar
and/or Springhouse Road Partnership, LLC under the Agreement dated
September 30, 1998,” i.e. the Option Agreement. Id. at 61a. Springhouse
and Nassar further agreed to try to convince Church to “remov[e] the
obligations under the [Option] Agreement . . . from the chain of title to the
Property.” Id.
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On April 17, 2009, Posh commenced a quiet title action against
Springhouse alleging that they were “unable to determine the nature of the
obligations or restrictions required under the [Option] Agreement,” thus
creating a “cloud” which “ostensibly encumbers [Posh’s] interest in the
Subject Property . . .” Church R.R. at 65b. Posh argued that only Nassar,
as the party to the Option Agreement, and not subsequent landowners like
Posh, were obligated by any provision of the Option Agreement. Posh R.R.
at 55a-58a.
Friends and Church intervened as defendants in the quiet title action.
Following a bench trial, the trial court found that because the Springhouse
Deed “made a clear reference to the [Option Agreement], subsequent
purchasers, including Posh [], were bound by its terms.” Id. at 57a. The
court also recognized that the same language appeared in the Posh Deed,
thereby providing Posh with actual notice of the Option Agreement. Id. In
fact, the trial court specifically found that “Posh [] admitted to having
received a copy of the [Option Agreement] before . . . settlement, thus
giving them actual knowledge of its terms.” Id. The court summarized in
part Posh’s obligations, which are expressly set forth in detail in the Option
Agreement, to include the obligation to “provide services and improvements,
including the installation of utility services and storm-water drainage or
detention systems, to the adjoining property retained by Friends for its
church and related purposes.” Id. at 55a-56a.
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Posh filed an appeal to this Court, which quashed the appeal due to
Posh’s failure to file post-trial motions.2 See Posh v. Springhouse Road
Partnership, LLC, 402 EDA 2012 (Pa. Super., Mar. 19, 2012) (order). Posh
did not file another appeal, and Posh admits that the decision in the quiet
title action “is the law of this case and is not at issue.” Posh’s Brief at 6.
On January 9, 2015, Posh filed a second action seeking a declaratory
judgment. Rather than honoring their obligations under the Option
Agreement, as the trial court found they must, Posh continued their
campaign “to determine the rights, obligations, and benefits resulting from
inclusion of the Encumbrance Clause in the Posh[] deed.” Posh R.R. at 10a.
Posh sought a declaratory judgment that:
[o]bligations to provide personal services are not
obligations that run with real property interests, and that
any and all obligations to provide personal services,
including engineering and design services, owed to
[Church] as a result of the Option Agreement are
obligations owed by Nassar, or Springhouse[], to [Church]
and are not obligations owed by [Posh] to [Church]; and
that [Posh] has no obligations to provide personal services,
including engineering and design services, to [Church].
Id. at 10a-11a. Church filed a responsive pleading asserting, inter alia, the
defense of res judicata. Id. at 65a-76a. Church also filed a counterclaim for
monetary damages for costs and services that Posh was required to provide
under the Option Agreement. Id.
2 It also appears that Posh failed to enter judgment on the verdict before
appealing, but according to the trial court, judgment was subsequently
entered in the quiet title action. See Trial Ct. Op., 2/28/17, at 11.
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Church moved for summary judgment on the ground that the
judgment in the prior quiet title action barred Posh’s declaratory judgment
under the doctrine of res judicata. Church R.R. at 19b-26b, 222b-34b.
Church also moved for summary judgment on its counterclaim for monetary
damages. Id. In support of this motion, Church submitted an expert report
estimating that Posh must provide costs and services in an amount between
$1,802,580.00 and $1,892,799.00. Church R.R. at 199b-207b. Church did
not actually perform such services or pay such costs. Id.
On November 23, 2016, the trial court ordered that “summary
judgment is granted . . . in favor of [Church] and against [Posh], and the
within matter is dismissed.” Both Posh and Church filed timely cross-
appeals and timely Pa.R.A.P. 1925(b) statements. The trial court issued an
opinion reasoning that the res judicata doctrine barred Posh’s declaratory
judgment action. Trial Ct. Op., 2/28/17, at 11. With regard to Church’s
counterclaim, the court stated:
In granting summary judgment, the [c]ourt expressly
noted [Posh is] bound to comply with the terms of the
Option Agreement . . . Moreover, because the [c]ourt
struck the instant matter on the procedural grounds that
res judicata barred [Posh] from pursuing it, any relief
stemming to [Posh’s] noncompliance with the Option
Agreement would be in the form of a motion seeking to
enforce the judgment entered in the 2009 matter. The
[c]ourt did not place the burden of completing the tasks
set forth in the Option Agreement on [Church], and
[Church] has not actually performed the work such that it
would be able to advance a claim for reimbursement at
this juncture.
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Id. 12-13.
Posh raises a single issue in the appeal at 37 EDA 2017:
Does the doctrine of res judicata bar the relief sought by
[Posh] in this declaratory judgment action as a matter of
law?
Posh’s Brief at 4.
Church raises a single issue in its appeal at 434 EDA 2017:
Whether the Court erred or abused its discretion when it
denied that aspect of . . . [Church’s] Motion for Summary
Judgment on its counterclaim requesting monetary
damages—in the uncontested amount necessary to make
improvements to its land—where, inter alia, (i) [Posh has]
obdurately refused for over [ten] years to provide those
services, despite a prior judgment already confirming their
obligation to do so, and (ii) [Church] submitted an
unrebutted expert report establishing the cost of making
those improvements.
Church’s Brief at 2.
Our review is governed by the following principles:
[S]ummary judgment is appropriate only in those cases
where the record clearly demonstrates that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. When considering
a motion for summary judgment, the trial court must take
all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party. In so doing,
the trial court must resolve all doubts as to the existence
of a genuine issue of material fact against the moving
party, and, thus, may only grant summary judgment
where the right to such judgment is clear and free from all
doubt. On appellate review, then,
an appellate court may reverse a grant of summary
judgment if there has been an error of law or an
abuse of discretion. But the issue as to whether
there are no genuine issues as to any material fact
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presents a question of law, and therefore, on that
question our standard of review is de novo. This
means we need not defer to the determinations
made by the lower tribunals.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citations and quotation marks omitted).
It is well-established that
[w]here the non-moving party bears the burden of proof
on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Further,
failure of a non-moving party to adduce sufficient evidence
on an issue essential to his case and on which he bears the
burden of proof establishes the entitlement of the moving
party to judgment as a matter of law.
Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.) (en banc) (citation and
quotation marks omitted), appeal denied, 129 A.3d 1244 (Pa. 2015).
“Under the doctrine of res judicata, or claim preclusion, a final
judgment on the merits by a court of competent jurisdiction will bar any
future action on the same cause of action between the parties and their
privies.” Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286
(Pa. Super. 2016) (citations and quotation marks omitted). The “doctrine
therefore forbids further litigation on all matters which might have been
raised and decided in the former suit, as well as those which were actually
raised therein.” Id.
In the present declaratory judgment action, Posh requested that the
trial court “determine the rights, obligations, and benefits resulting from
inclusion of the Encumbrance Clause in the Posh[] deed.” Posh R.R. at 10a.
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This is the same issue that Posh raised in the quiet title action, where Posh
alleged that they were “unable to determine the nature of the obligations or
restrictions required under the [Option] Agreement,” thus creating a “cloud”
which “ostensibly encumbers [Posh’s] interest in the Subject Property . . .
Church R.R. at 65b. Moreover, the trial court determined the nature of
Posh’s obligations in the quiet title action; its verdict stated that Posh had
the duty to “provide services and improvements, including the installation of
utility services and storm-water drainage or detention systems, to the
adjoining property retained by Friends for its church and related purposes.”
Posh R.R. at 55a-56a. Indeed, Posh admits that the decision in the quiet
title action “is the law of this case and is not at issue.” Posh’s Brief, at 6.
Because Posh’s duties and obligations were both raised and decided in the
quiet title action, Posh’s declaratory judgment action is nothing more than a
second action on the same matter between the same parties. The trial court
correctly decided on this record that res judicata precludes Posh’s
declaratory judgment action. See Mariner Chestnut Partners, 152 A.3d
at 286.
Turning to Church’s cross-appeal, we agree with the trial court’s
determination that the quiet title action is the proper setting to determine
the issue of Church’s damages. In a quiet title action, the court may, in
addition to entering judgment, “enter any other order necessary for the
granting of proper relief.” Pa.R.C.P.1066(b)(4). In our view, this broad
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language encompasses post-judgment monetary relief necessary to enforce
the judgment. See Tioga Coal Co. v. Supermarkets General Corp., 589
A.2d 242, 244 (Pa. Super. 1989) (implicitly acknowledging that party had
right to seek money damages in quiet title action, but ultimately holding that
chancellor acted within his discretion by denying damages).
As noted above, the trial court determined in the quiet title action that
Posh has the duty to “provide services and improvements, including the
installation of utility services and storm-water drainage or detention
systems, to the adjoining property retained by Friends for its church and
related purposes.” Posh R.R. at 55a-56a. Church may enforce its judgment
against Posh in the quiet title action by seeking the post-judgment remedies
of specific enforcement of the foregoing terms or damages necessary to
enforce the judgment. It would needlessly duplicate litigation for Church to
seek such relief in the present action instead of in the quiet title
proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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