Chalkey v. Roush

3 Roush raises the issues on CAVANAUGH, SOLE, Before DEL appeal: POPOVICH, JOHNSON, HUDOCK, 1. hearing Where at scheduled mer- ELLIOTT, MUSMANNO, FORD ORIE party having its of action the MELVIN, LALLY-GREEN, JJ. of proof burden introduced no evi- dence, incorporate any and did not ELLIOTT, FORD J.: prior proceedings, evidence from Roush, Jr., 1 Franklin Delano it deny was error to a motion (“Roush”) appeals from the order that de- other party to dismiss the action? clared contract for the sale of land be- special relationship, tween Absent some Mary Chalkey, Roush and a/k/a (“Matula”) Mary Matula was error for the court to find a null and void and confidential relationship, upon directed Roush to based property transfer the party occupying position one question back to Matula. We vacate and other, advisor or counselor to the remand. neither party presented where evi- ¶ Matula, deceased, now was the own- dence that either of them considered adjacent er of three parcels of land. Ma- the one to be an advisor or counselor tula in danger losing was one parcel to the other? due to a judgment against her in an unrelated lawsuit. A sheriffs sale was property was Where seller real property, unwilling proper- scheduled on this which caused to move from her great elderly ty, any deal of distress to Ma- bona was there absence offer, to the trial than that of the This matter is remanded fide other of the verdict. court for reinstatement purchaser, purchaser’s where offer only permit one which would Enterprises, supra at stay property? her to on her at 54-55.

Appellant’s reaching brief at 4. Before Shortly after the court de- issues, the merits of Roush’s we must de- panel a of this Enterprises, cided Lane by he has waived issues cide whether in quash court addressed a motion to motions, failing post-trial position to file a a response appeal judgment to an by advocated Matula. non-jury trial in an action to Plowman, Spiegel attorney’s recover fees. supreme recently 4 Our court reaffirm Lewis, Straub, v. 723 A.2d 1060 & P.C. importance post-trial ed the motions Plowman, (Pa.Super.1999). appel- In Co., Lane v. L.B. Foster 551 Enterprises firm appellant lee law claimed that waived 306, (1998), Pa. A.2d 54 L.B. Fos 710 and failing mo- post-trial his issues Inc., Enterprises, v. Lane 551 Pa. ter Co. agreed, following court Lane tions and this (1998) (“Lane 307, Enterpris 710 A.2d 55 Plowman, Enterprises. 723 A.2d ”). after a Enterprises, es Lane non- before the Plowman Although issue action, trial in a breach of contract jury of an order appealability court involved the opinion disposing an court issued in an action at the Plowman court parties raised in trial memo- issues the called into opined that Lane Following randa. the trial court’s deci Storti, continuing viability question sion, filing post-trial instead of supra, progeny. and its Storti is one of praecipe Foster then filed a long line of cases decided both A judgment appeal. enter and a notice of refusing supreme this court and our panel of this court reviewed the merits of despite post-trial waiver the lack of find lack appeal despite limited circum- motions under certain motions, relying on Ins. Donegal Mut. Co. Although agree panel we that the stances. Farm, 171, v. State 377 properly Plowman dismissed (en (1988) banc), 1212 v. Storti authority Enterprises, of Lane under the Co., Minnesota Mutual Insurance Life reargument we in this case to granted (1984), 479 A.2d 1061 viability prog- address the of Storti equity. Enterprises, Lane both actions conclude eny Enterprises. after Lane We Co., Inc. v. L.B. Foster 469- court did not intend to reversed, Pa. (Pa.Super.1997), holdings in either abrogate its Common- (1998) reversed, L.B. 710 A.2d 54 Fos Derry Township, v. 466 Pa. wealth Inc., Enterprises, 551 Pa. ter v. (1976), Community Sports, A.2d 606 (1998). one-paragraph A.2d 55 In a Oaks, The Inc. v. Oakland order, per curiam re per when it entered its the su versed this court. We set forth Enterprises, supra. in Lane curiam order court’s order full: preme reasons follow. Our th NOW, April day AND this 15 1517, follow 6 Under Pa.R.Civ.P. Superior of the Court is Order make ing court shall requires “[t]he Pa.R.Civ.P. 227.1 reversed. adjudication.... The in order parties (1) the is If an consist of a statement of appeal. shall preserve (2) sues; chronological a closely in a condensed issue has not been raised statement, motion, separate in narrative form or purposes. it is waived for are neces findings, of all the facts which Transpor Benson v. Penn Central See sary known in order to determine Pa. to be Company, tation (3) (1975) Metz, issues; questions of the v. discussion and Commonwealth conclusions of law involved and the court’s by exceptions are “Matters not covered nisi.” Pa.R.Civ.P. law and decree unless, waived, final de 1517(a), prior A decree nisi is deemed Pa-C-S-A.1 cree, interlocutory exceptions order which non-appealable granted leave is also Lo parties raising to exam- matters.” Id. See gives the these Cherrie, object proposed disposition gan to the ine Williams, curiam); court enters a final Copes of the case before the (per (1963).2 §2d 1517:11. order. Goodrich-Amram rescinded, provided addi also Rule de 7 “After the pass en banc shall tionally that a court filed, parties cree nisi have been filed, or, if none are exceptions upon factual challenge the decree and the then praecipe shall enter prothonotary findings by filing appropriate Community Sports, decree as final. Pennsylvania motions.” Winkelman supra Assigned Responsibility Financial Claims [PFRACP], Pa.Super. Plan ¶ however, 1, 1984, January 10 Effective on other overruled and Rules 1518 and 1519 were rescinded v. Mut. Ins. grounds Swartz Union Co. 227.4 were through new Rules 227.1 County, Westmoreland 227.1 was enacted to abol- adopted. Rule (1997). Pursuant to Pa.R.Civ.P. practice in post-trial ish the distinctions 227.1(c)(2), be filed post-trial motions must equity at law and and between actions days adjudication. After within ten of the jury. Pa. actions tried with or without motions, pursu the court addresses these 227.1, Explanatory 42 Pa.C.S.A. R.Civ.P. a final ant to Rule 227.4 enters decree Under Introduction. Comment—1983 parties appeal. from which the 227.1, post-trial parties Rule are to file Winkelman, supra. motion, exceptions, rather than trial, are to include their equity ¶ specified by post- 8 Grounds not seeking for specific grounds motion the are, however, ap trial motion waived on relief, and the manner sought, the relief 227.1(b)(2). peal. purpose Rule The at trial. grounds which the were raised provide this rule is “to trial court the 227.1(b)(1), not Pa.R.Civ.P. “Grounds first to review and reconsider waived specified in the motion are deemed rulings its earlier and correct its own er cause shown granted upon unless leave is Weisel, Soderberg ror.” specify grounds.” additional (1997) (citations 687 A.2d 227.1(b)(2).3 R.CÍV.P. omitted). Thus, under both Rules 1518 gov 9 Prior to Pa.R.Civ.P. 1518 227.1, following an party seeking in an relief procedure erned the to be followed re- required trial was first to seek action after the chancellor filed court; only then could that to lief in the trial pursuant and decree nisi Addi- file an to this court. party Rule provided, 1517. Rule 1518 “Within Rules, failure both sets of twenty days filing tionally, after notice of under in waiver. relief would result adjudication, exceptions may be filed to seek such of the (re Joines, 700 A.2d 1322 Matthews v. by any Pa.R.Civ.P. 1518 See party....” scinded). affirming on (equity action provided, (Pa.Super.1997) That Rule further amended, requirement recently but this 3.Rule 227.2 eliminated 1. Rule 1517 was changed. en banc language has not be heard a court 227.3 so ordered. Rule unless the trial court however, Interestingly, supreme ordering procedure the rec- provides the for application of reviewed the chancellor’s still 227.4 allows a transcribed. Rule ord Partrick legal principles to the facts as found. entry judgment if no praecipe party to Adams, 566„ 322 Co. v. & Wilkins timely post-trial motion is filed. (1974), citing Copes, supra. op- motions and had the after the trial court

the basis of waiver to do so. appellee portunity in favor of an oral verdict issued fact, findings did that included B.M.D., example, 14 In motions, a final order not file fil- a “final decree” without court entered was docketed over reflecting the verdict adjudication or decree nisi. As ing an Kramer, later); one month Miller the de- supreme court vacated 1033, 1035 with instructions to the cree and remanded quashing action (declaratory judgment 1516-1517, Rules comply trial court to with a de- the chancellor entered appeal where excep- could file parties after which the facts, appellant did stipulated cree nisi on B.M.D., 409 A.2d at supra tions. appellee not file Likewise, in Partrick & Wilkins Co. the decree nisi as praeciped to enter Adams, judgment). final (1974), in which the trial court entered ¶ Nevertheless, past for at least the findings included court and this years, both a “final fact and conclusions failure to seek relief court have excused ordering the defendants to decree” court under certain limited from the trial va- agreement, with an Township, supra at Derry circumstances. and remanded because cated the decree 611; Community Sports, deprived had been of their parties the Accord supra exceptions. to file Rich, Reading Anthracite Co. (1990); In re Involun 577 A.2d 881 Community Sports, in Similarly, Rights Parental tary Termination an en- chancellor entered order supra, the R.L.D., B.M.D. using corporate defendant joining (“B.M.D.”). circum Those during the player particular basketball court, by the trial focus on actions stances season, in opinion stated 1967-1968 rather and order which issues not the order that he would accompanying nisi, adjudication and decree or than an court The enter a decree nisi. order, decree, judgment, a final enters appeal, instead stat- quash refused to appeal. thereby requiring an immediate completely lower court has so ing that “the with an may party leave a These orders of civil with the rules failed to hand, the one failure untenable choice. On decree is but a present that its procedure appears to what to file therefore must be vacated.” nullity, and in forfeiture be a final order result 413-14, Sports, supra Community filing an when the time for appeal rights explained court that A.2d at 492. The hand, other has run. On the appeal exceptions file must failure to appellants’ appeal of an from such fifing immediate justi- appellants might be excused because in of issues on result waiver order would state- on the chancellor’s fiably have relied appeal. filed, so decree nisi would ment that no remedy a direct only was appellants’ that result, actions As a such Gellar, 455 Pa. Slotsky v. appeal. See also appel- in excused have rare instances (quashing pre- as post- failing in to file any lant from fault adjudication from an appeal in the mature just as a breakdown adju- court before orally open always permitted made has operation transcribed, a court en relief; had been dication extraordinary forms of other or the any exceptions, passed banc had ap- file motions or permission to example, cases, had entered prothonotary tunc. In these pro nunc peals final; in the interests remanding as at both the or- court has looked op- a reasonable justice to allow to determine der and the exceptions). portunity of the need was on notice party whether a Finally, in Derry Township, “appeared had been taken to be a final from, order; appealed order it no governed which was contained reference to the filing exceptions former and found favor Pa.R.Civ.P. contained no fact, Donegal against Judg- State Farm. findings of any conclusions entered, ment upon praecipe, accor- indication that it was a decree nisi or dance with the trial court’s decision.” parties required were exceptions Mutual, Donegal A.2d at 1213. perfect their right required of appeal, as by Rule As a our supreme ¶ 18 In that the trial court deciding did court stated: discretion, Donegal not abuse Mu- tual court reviewed the fine of long cases nothing There is on the face of the order noting excusing exceptions, failure to which would anything indicate that is groups, supra, the two discussed and, such, other than a final order as the court has either addressed requirements ap- Rule 1518 are not require on the merits or remanded to com- plicable. When the court’s nei- order pliance (collecting with the Rules. Id. comports with requirements ther cases). Mutual, Subsequent Donegal Rule 1517 nor indicates its face this court has continued follow these nisi, the order is a decree it should not Christopher two See lines. M’s Hand be presumed exceptions must be Hennon, Fudge Poured to preserve a right of denied, (Pa.Super.1997), appeal. (1998); 717 A.2d 1026 Midlake on 41-42, Derry Township, supra at Lake, Big Boulder Condominium Ass’n added). (emphasis Derry The Cappuccio, Township then addressed Town- denied, 340 n. ship’s issues on the merits. Id. (1996); Winkelman, ¶ 17 This court relied on both Com- 719; Altomare, A.2d at and Altomare v. Spoits munity and Derry Township lines 486, 391, 1 Pa.Super. 355 513 A.2d 487 n. Mutual, of in Donegal cases supra, one of (1986), denied, 623, appeal 522 the cases which this in court relied its (1987) (all addressing the issues Enterprises Lane opinion, discussed su- merits).4 J.J.F., the See also In re 729 pra. Mutual, In Donegal a case decided 79, (Pa.Super.1999); Adop- A.2d 82 re rescinded, after Rule 1518 was an en banc C.R.V., 386, Pa.Super. tion 408 596 A.2d panel of this court was asked to decide 1141, (1991); Adoption 1142-1143 In re the whether trial court 249, abused its discre- Hamilton, Pa.Super. 362 523 A.2d tion when it permitted appellant 1176, (1987); Miller, Miller v. 1178-1179 pro motions nunc tunc 183, 841, after this 359 Pa. Super. quashed premature (1986); D’ltalia, as an Pa.Super. Cornell v. from an order in a declaratory judgment 233, 1186, (all 1188-1189 action. The order from which vacating remanding).5 the stales, indicates, recognize authority We also 5. As a review of these cases the effect, procedural misstep excusing party that failure to cannot benefit from trial post-trial motions most often occurs in ac- require- court’s failure follow to the technical equity, tions in where the relief available and of Rule ments 1517. Commonwealth Sal- powers the chancellor's law, are broad. Actions Amusements, Mar contrast, defined, clearly are more (1993), citing A.2d Matter Es- final, generally appealable matters arise at the Ross, tate Enterprises conclusion of trial. Lane cases, however, In both those examples proceed- Plowman are both of such 1517(a) purpose the of Rule had been fulfilled Nevertheless, ings. can we conceive of sim- aggrieved the party because did file procedural misstep in ilar an action adjudication provided court's the where, example, the trial court enters for adequate appellate for record review. judgment aggrieved party before an has Thus, in Lane supreme becomes the question to supreme contemplating types

whether the court intended was not Storti abrogate years precedent, grounded per when it its curiam or- cases justice, in the interests of when it entered opin- that court’s der. To the extent per Enterprises. order Lane Plowman, its curiam question supra, ion in calls into review of the cases on which Lane Our in those instances practice established rare Enterprises court relied convinces us that misstep results in in which court did not so intend. order, it is ex- ambiguous therefore pressly overruled. v. Penn 20 Benson Central Co., Transp. Having concluded appel in which was an action law abrogate prior prece not Enterprises does post-trial motions following lant did not file dent, next whether Storti we must decide supreme court found jury verdict. The to Roush’s progeny forgive and its allow us preserved had not its issues that defendant failure to file motions under appellate review and therefore re note procedural facts this case. We court, which had addressed the versed this inis narra disposition the trial court’s on the merits. Id. at 342 A.2d at findings of tive form and contains limited supreme court then set forth 395. The fact with or reference the evi little no in which it had a footnote both the cases adju Additionally, the upon. dence relied presented to review issues not refused nisi. does not include a decree dication trial court and the rationale for its Instead, the court “entered an order which Id. at n. A.2d at 395 n. refusal. n. express language suggest did not Lehigh Dilliplaine n. Val quoting by necessary implication that 258-259, Co., ley Trust Donegal final.” was not intended to be (1974) (other citations 116-117 Mutual, at 1214. It declares omitted). therefore, Benson, stands for land null and void contract the sale of straight proposition ownership requires Roush to transfer verdict, decision, entry of a forward It re property of' Matula. also trial, non-jury in a or a jury non-suit for cer quires Matula to reimburse Roush require the aggrieved court will sums, received tain less sums Roush trial court to party seek relief entitled. which Matula was preserve appeal rights. ¶ Furthermore, nei the order is ¶ Metz, Commonwealth ther a decree nisi nor does entitled (Pa.1993), 341, 633 the other case A.2d 125 motions are re post-trial indicate that Enterprises, is a case based cited Altomare, at 487 n. quired. See of Procedure before on Rules Criminal (“when with the comports an order neither optional, to allow for they were amended nor requirements Pa.R.C[iv].P. mandatory, post-sentencing rather than exceptions that must suggestion contains 1410(B)(1)(c). The motions. Pa.R.Crim.P. right preserve be filed order to through Ben- only running common thread will be exceptions the failure to file appeal, son, Metz, and Lane therefore Dorone, excused”), citing In re Estate cases, in each of those appears to be that issues improperly addressed A.2d 452 affirmed, 517 by appellant’s failure that had been waived of the cases on our review Based none of the file a motion: to discussed, already we therefore however, we have cases, failure file a involves to imprope would be conclude that dismissal no reason excused motion where result, must decide whether result, r.6 As a we we conclude that failure. As a 1925(b) however, Pa.R.App.P. pre- pursuant to argument, that reject We Roush's it allows effective complained his issues because of he served the statement of matters we complaint seeking should address merits Roush’s to set aside a con- appeal or remand allow veyance, despite the trial court to Roush’s motion to dismiss enter a proper decree nisi and to allow this Matula no evi- presented case because Roush the hearing.7 dence the second Because disposition review the trial court’s complaint Matula’s to set seeking aside ¶ 24 This court has attempted several conveyance requires resolution Roush’s distinguish occasions reconcile or issue, first we find that is neces- remand which, waiver, cases in finding no we ad- sary. issues, appellant’s dress the merits of from C.R.V., cases in which we remand. See ¶ As a we vacate the order 1142-1143; Hamilton, the trial court and remand to 1178-1179; Cornell, A.2d at 429 A.2d at allow both Roush to 1188-1189. the cases in which this with the Rules of Procedure. Civil court has addressed the merits of the ap- relinquished. Jurisdiction is peal, the court responding was the con- SOLE, DEL a Dissenting J. files tention that the had waived the JOHNSON, Opinion joined by which is by failing to file excep- MELVIN, LALLY-GREEN, ORIE tions, but concluded that a sufficient rec- “ JJ. ord existed address the ‘The merits. cases, hand, remand on the other are more J., SOLE, DEL dissenting. concerned about the completeness of the decree and the possibility of meaningful 1 I dissent. On July appellate C.R.V., review.’” 596 A.2d at parties appeared before the Chancellor Hamilton, quoting trial, trial. Prior beginning case, 25 In this Matula claimed Summary that court ruled on cross Roush waived his issues on appeal Judgment. granted summary fail- It judgment ing find, Defendant, motions. We in favor of the Additional however, meaningful appellate Appellant’s Following review denied motion. is not possible. recess, Neither the trial court’s short trial began Appel- with opinion accompanying August calling 1998 lant one witness. After her testi- 1925(a) nor its addresses mony, judge the trial advised he argument Roush raises his first incorporating pri- issue: transcripts whether the trial court sponte hearings erred in sua objections. unless there were incorporating presented N.T., evidence July at an None were made.

earlier hearing hearing into the held on 37-38. appellate (Appellant’s preliminary injunction. review. brief at whether to’continue Rexworks, (Pa.Su- citing Jara hearing, At Matula bore burden denied, per.1998), appeal 737 showing urgent necessity “an for interim re- (1999).) argument Appellant’s A.2d 743 fails lief the before the case heard on [could] primary purpose consider the of Soja Factoryville Sportsmen's v. merits.” Club, provide which is trial "to the Pa.Super. 361 1131 the first to review and reconsider (citation omitted). (1987) hearing the ad- At rulings its earlier and correct its own error.” however, dressing appeal, the issues this (citations omitted). Soderberg, 687 A.2d at 845 required by Matula was clear and show inapposite We also find Jara as the issue the convincing un- evidence Roush exerted non-ag- Jara court addressed involved the Glover, 447 due influence. In re Estate of grieved party's cautionary failure to file a Pa.Super. A.2d Jara, post-trial motion. denied, Roush raised the issue of trial findings

7. The trial court's of fact and conclu- denying error in to dismiss in his August motion sions of law in its ap- complained predicated present- and are statement of matters of on on evidence (R. 40.) hearing peal. ed at at an earlier held to determine ¶ the apprise trial judge responsibility the trial the August 2 On Order, may it have made. Opinion any and court of errors comprehensive filed a facts, raised, discussing appli- below, it determining any if not Like other error resolving the matter. Un- cable and M’s appeal. Christopher is waived on Opinion Hennon, Majority, like the I find that this v. Fudge, Hand Poured Inc. requirements of Pa.R.C.P. meets rationale (Pa.Super.1997). “The 1517(a)which reads: is compliance requirement for this strict

(a) efficiency ‘to enhance adjudica- maximize The court make shall dispute quality pro- the tes- of our resolution

tion and do so before Joines, A.2d has transcribed. The ”. timony been cess’ Matthews (1) Lew, adjudication consist of a Tagnani shall (Pa.Super.1997) (quoting (2) issues; (1981)). statement of chronological closely condensed Majority’s reasoning I find over- statement, form or in in narrative looking failure to with findings, of all the facts separate is it form 227.1 unsound as elevates R.C.P. necessary be known in order to substance, has concept over Court (3) determine the issues: a discus- uniformly abhorred. questions of law in- sion of the Majority, despite its acknowl- 5 The volved conclusions equity rescinded edgement that Rule 227.1 (4) a decree nisi. law purpose rules with the practice 1517(a) added). (emphasis Oth- Pa.R.C.P. ac- abolishing any distinction between failing er than to label the order decree equity, on cases tions law and relies nisi, fully with complied the Chancellor of decisions apply the rationale Rule 1517.8 equity under the former rules. reached require The Rules of Procedure Civil Donegal Mutual Ins. Co. rebanee on following a filing motions Farm, State 227.1(c) pro- Rule Specifically, decision. Altomare, and Altomare v. vides: 486-(1986), within motions shall be filed Post-Trial would be im- Majority concludes dismissal days ten after is nei- the instant “order proper because nisi nor does ther entitled decree filing or the of the notice of nonsuit are re- indicate in the of a case decision or by ex- quired” suggest “‘did not jury trial. without necessary implication press language 227.1(c) added). (emphasis was not intended to be Pa.R.C.P. the order ” 978, citing Majority Opinion, final.’ specific 4 This rule does not make a Mutual, A.2d at 1214. Noth- Donegal a decree Whether the reference to nisi. 1517(a) the court’s requires in Rule ing equity, at law or in Rule is filed action in a form or particular to be filing post- expressly requires 227.1 are re- post-trial motions indicate that Majority,' As noted enact- specifically Rule 227.1 quired. 227.1 was enacted abolish “Rule notifying ed this function to serve post-trial practice between distinctions procedure parties and their counsel thé and actions tried actions law of trial. upon followed conclusion Opinion Majority a jury.” with or without Majority distinguishes Ostensibly Majority’s decision erodes at 975. The in Lane Enter- 227.1, holding Court’s Supreme and relieves counsel import of Rule a decree nisi. should be labeled are that when con- 8. Trial courts reminded trials, ducting initial prises9 the basis that actions at law as

opposed REBERT, clearly Appellee, “are more de- Susan fined, final, appealable [with] matters generally aris[ing] at the of tri- conclusion Majority Opinion REBERT,

al.” I Appellant. at 977 fn.5. find H. Richard procedural posture of this matter is Superior Pennsylvania. Court of indistinguishable Enterprises. from Lane by Majority, Unlike the cases cited Submitted June 2000. trial court here took no definitive action Aug. Filed precluded that either Appellant filing a motion relief engendered for fact,

confusion. Appellant does not

even suggest he was misled given

court or was not an opportunity to relief.

¶ Further, I Appellant, note that in his Reargument,

Brief on post- concedes that necessary. motions were He does not

seek to avoid waiver because the trial procedural

court created confusion

placed him on the “horns of a dilemma”

about whether an post-trial mo

tions Rather, should be filed. he claims function was satisfied 1925(b)

because filed a he Statement of Complained

Matters Appeal of on opinion. court filed an He relies this decision Jara v. Rex

works, 718 A.2d 788 (Pa.Super.1998). Ap

pellant’s Brief on Reargument at I 10-11.

agree with the Majority’s analysis on the Jara,

inapplicability as set forth in foot

note 6 on page opinion. 978-79 Appellant

Since failed file post-trial mo

tions, I would find the issues waived.10 Central,

Benson v. Penn 463 Pa. (1975).

¶ JOHNSON, MELVIN, ORIE

LALLY-GREEN, JJ., join. Co.,

9. Lane Appellant, attorney, represented L.B. Foster himself stages at all of the matter before the trial and L.B. Co. v. Foster appear- court. ance and expired Current counsel Inc., Enterprises, long the time after filing post-trial

Case Details

Case Name: Chalkey v. Roush

Court Name: Superior Court of Pennsylvania

Date Published: Aug 7, 2000

Citation: 757 A.2d 972

Court Abbreviation: Pa. Super. Ct.