In the Mixx LLC v. Womelsdorf, A. ( 2018 )

J. A12033/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE MIXX LLC, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ALBERT H. WOMELSDORF; :
CLARA J. WOMELSDORF; :
AND ALL UNKNOWN HEIRS :
2055 AMBER STREET : No. 3284 EDA 2017
PHILADELPHIA, PA 19125 :
OPA/BRT: 311132500 :
Appeal from the Order Entered August 25, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. 1025 January Term, 2017
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 24, 2018
In the Mixx LLC appeals the August 25, 2017 order of the Court of
Common Pleas of Philadelphia County that denied appellant’s petition for the
appointment of a conservator and vacated the lis pendens placed on the
property located at 620 S. 52nd Street, Philadelphia, Pennsylvania, pursuant
to the Abandoned and Blighted Property Conservatorship Act (“Act”), 68 P.S.
§§ 1101-1111. After careful review, we affirm.
The trial court summarized the factual and procedural history as follows:
Before this Court is a Petition for Appointment of a
Conservator (“Petition”) filed by [appellant] under the
[Act]. [Appellant] owns property at 2088 East
Cumberland Street in Philadelphia. [Appellant] seeks
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the appointment of a conservator in relation to a
property located at 2055 Amber Street in Philadelphia
(“Property”). The named Respondents are “Albert H.
Womelsdorf, Clara J. Womelsdorf, and all unknown
heirs.” Thomas Wickham, Jr. . . . has responded to
the Petition contending that he acquired his ownership
interest less than six months before the Petition was
filed.
A hearing was scheduled to determine whether the
conditions for conservatorship have been met,
whether a conservator should be appointed, who
should be appointed as conservator and/or whether
other appropriate relief should be granted.
The parties stipulated to certain facts. As to Property
title, the Property was purchased by Albert and
Clara Womelsdorf in 1950. Albert Womelsdorf died in
1961 and Clara Womelsdorf died in 1981.
Thomas Wickham, Sr. (Wickham, Sr.), father of
[Thomas Wickham, Jr.] and grandchild of Albert and
Clara Womelsdorf, resided in the Property from 1944
until his own passing on September 3, 2016. Since
the death of Clara Womelsdorf in 1981, Wickham, Sr.,
paid all utility and tax bills for the Property. On or
about March 2016, upon becoming extremely ill,
Wickham, Sr., transferred the address on the
Property’s bills to his son, [Thomas] Wickham, Jr.
Thereafter, Wickham, Sr., died testate, naming
[Thomas] Wickham, Jr., as his sole heir.
However, as the parties have stipulated, upon his
father’s death, [Thomas] Wickham, Jr., was not the
only potential heir of Albert and Clara Womelsdorf.
They had two daughters, Alberta and Edna, both of
whom are since deceased. Alberta married
John Wickham, with whom she had two children—
John Wickham, Jr., and Thomas Wickham, Sr., the
aforementioned father of [Thomas Wickham, Jr.]
John Wickham, Jr., died in March of 2016, leaving his
estate to his wife, Anna Wickham. [John Wickham
died in 1936]. Subsequently, Alberta Wickham
married Robert T. Parker, with whom she had four
children—Charles Parker, Karen Parker D’Alessandro,
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Ronald Parker, and David Parker. David Parker died,
leaving his estate to his wife Diane. Alberta and
Robert Parker’s three remaining children are living.
Edna Womelsdorf married James P. White, who is now
deceased. The couple had two children, Patricia White
Benhayon and James White, Jr., both of whom are
living.
That being said, there were seven potential heirs to
the Property, besides Thomas Wickham, Jr., namely
Anna Wickham, Charles T. Parker, Karen Parker
D’Alessandro, Diane Parker, Ronald Parker,
Patricia White Benhayon, and James White, Jr.
Subsequent to the filing of this Petition, all other
potential heirs disclaimed any interest to the Property,
noting that it was, and continues to be, their belief
that Clara Womelsdorf gave the Property to
Wickham, Sr.
To that end, the evidence established that after his
father’s death on September 3, 2016,
[Thomas] Wickham, Jr., believing his father was the
sole owner of the Property, visited and examined the
Property, analyzing how best to resurrect it from a
blighted state. [Thomas] Wickham, Jr., determined
that he would raze the structure, secure the premises,
and then determine whether to sell the Property or
enter into a joint venture to build upon the lot. In
September 2016, [Thomas] Wickham, Jr., entered
into an agreement with DD Fox Construction, LLC, to
demolish the building on the Property, remove the
debris, and complete potential stuccoing necessary on
the adjacent property. At that point in time, the
architect assigned to the project discovered that title
to the Property remained in the names of Albert and
Clara Womelsdorf, and informed
[Thomas] Wickham, Jr., that due to the title, a permit
could not be pulled. Until this point in time,
Thomas Wickham, Jr., was not aware that his father’s
name was not on the deed.
Immediately after discovering the deed issue,
Thomas Wickham, Jr., went to great lengths to correct
the deed and consulted legal counsel to rectify the
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matter. He began the process to secure his name on
the deed to the Property. He also began the work
necessary to remediate the blighted conditions. This
Petition was filed in January 2017, less than six
months from the death of Wickham, Sr.
With the parties in agreement that the Property meets
the definition of “blighted,” as set forth in the Act, and
the parties having stipulated to the relevant facts
preceding this action, the sole remaining issue is
whether the current owner, [Thomas] Wickham, Jr.,
acquired the Property within six months of the filing
of the Petition. This Court granted the parties leave
to submit memoranda as to the issue of “whether the
current owner acquired the Property at issue within
six months of the filing of the Petition as set forth
under 68 P.S. § 1105(d)(4).”
Trial court opinion, 8/28/17 at 1-41 (footnote omitted, emphasis in original).
By order filed August 28, 2017, the trial court denied the petition for
appointment of a conservator and vacated the lis pendens filed on the
Property.
On September 27, 2017, appellant filed a notice of appeal to this court.
On October 18, 2017, the trial court filed an addendum to opinion that
indicated that the basis for the trial court’s decision was in the opinion that
accompanied the order dismissing the petition and attached a copy of the
opinion to the addendum. Although appellant includes a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) in its brief and
1 The pages in the trial court opinion are unnumbered. We have numbered
the pages in sequence.
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reproduced record, the trial court did not request that appellant do so, and
the statement is not part of the certified record before this court.
Appellant raises the following questions for this court’s review:
1. Did the trial court error [sic] by finding that the
alleged owner “present[ed] sufficient evidence
that he has acquired the property within the
preceding six months” of the filing of the
Petition for the Appointment of a
Conservator pursuant to 68 P.S.
§ 1105(d)(4)?
2. Did the trial court error [sic] by finding that an
“owner” as defined by 68 P.S. § 1103 includes
heirs with no ownership interest of public
record?
3. Did the trial court error [sic] by applying the
familial exception specified in 68 P.S.
§ 1105(d)(4) to this matter? This section
provides in relevant part: “The evidence shall
not include instances where the prior owner is a
member of the immediate family of the current
owner, unless the transfer of title results from
the death of the prior owner.” 68 P.S.
§ 1105(d)(4).
Appellant’s brief at 6 (emphasis in original).
Before addressing the merits of this appeal, we must determine whether
appellant properly preserved its issues for review. See Tucker v.
R.M. Tours, 939 A.2d 343, 348 (Pa.Super. 2007), affirmed, 977 A.2d 1170
(Pa. 2009), citing Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006),
cert. denied, 549 U.S. 1171 (2007) (stating “[appellate courts] may
sua sponte determine whether issues have been properly preserved for
appeal”).
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The Pennsylvania Rules of Civil Procedure set out the requirements for
post-trial relief and state:
Rule 227.1 Post-Trial Relief
....
(c) Post-trial motions shall be filed within ten days
after
(1) verdict, discharge of the jury
because of inability to agree, or
nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the
decision in the case of a trial without
a jury.
If a party has filed a timely post-trial motion,
any other party may filed a post-trial motion
within ten days after the filing of the first
post-trial motion.
Note: A motion for post-trial relief
may be filed following a trial by jury
or a trial by a judge without a jury
pursuant to Rule 1038. A motion for
post-trial relief may not be filed to
orders disposing of . . . other
proceedings which do not constitute
a trial. See U.S. National Bank in
Johnstown v. Johnson, 506 Pa.
622, 487 A.2d 809 (1985).
A motion for post-trial relief may
not be filed to matters governed
exclusively by the rules of petition
practice.
....
Pa.R.Civ.P. 227.1(c)(1-2) and Note.
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As the rule and accompanying note state, a post-trial motion does not
have to be filed following a proceeding that does not constitute a trial.
In order to determine whether an appellant must file post-trial motions
following a proceeding in court, this court must consider whether (1) the plain
language of Rule 227.1 makes clear that a post-trial motion is required,
(2) case law provides that a post-trial motion is required, even if Rule 227.1
is silent on the subject, and (3) practicing attorneys would reasonably expect
that a post-trial motion was necessary. Newman Dev. Group of Pottstown,
LLC v. Genuardi’s Family Mkts., 52 A.3d 1233, 1248 (Pa. 2012).
Recently, in G & G Investors, LLC v. Phillips Simmons Real Estate
Holdings, LLC, 183 A.3d 472 (Pa.Super. 2018), this court determined that
the petition for the appointment of a conservator pursuant to the Act was a
proceeding that required the filing of a post-trial motion where the parties
offered exhibits into evidence and examined and cross-examined witnesses
and where the trial court relied on the hearing testimony and documentary
evidence when it denied the petition. This court held that where no post-trial
motion was filed and a timely notice of appeal was filed, the issues on appeal
were waived.2
2 It appears that G & G decided an issue of first impression as to the
requirements under the petition practice of the Act. No request for
reargument or petition for allowance of appeal has been filed. This court notes
that Attorney Richard L. Vanderslice, counsel for appellant here, also
represented G & G Investors, LLC, in G & G.
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Similarly, here the parties presented stipulations: that the Property
qualified as blighted under the Act; that Albert H. Womelsdorf and
Clara J. Womelsdorf were the titled owners of the Property under a deed dated
November 4, 1950, and recorded November 30, 1950; concerning the
relationship of Thomas Wickham, Sr., to the Womelsdorfs and the Property;
and that Thomas Wickham, Sr., left all of his property to Thomas Wickham, Jr.
(Notes of testimony, 5/23/17 at 4-5.) The parties also stipulated as to the
other potential heirs of Clara J. Womelsdorf and that these heirs disclaimed
any interest in the Property. (Id. at 6-9.) Thomas Wickham, Jr., included his
affidavit along with a memorandum of law that the trial court requested.
The trial court relied at least in part on these stipulations and the
affidavit in rendering its decision. Although there were not live witnesses, as
in G & G, evidence was presented by stipulation at the hearing. If the parties
had not agreed to the stipulations, they would have had the opportunity to
present witnesses.
Moreover, the Supreme Court of Pennsylvania in Motorists Mut. Ins.
Co. v. Pinkerton, 830 A.2d 958, 964 (Pa. 2003), held that orders following
trials on stipulated facts must be treated the same as orders following other
trials. In other words, in both situations, a party who wishes to appeal must
first file post-trial motions. Our supreme court based its decision on the
Explanatory Comment to Rule 1038.1 of the Pennsylvania Rules of Civil
Procedure, which stated that trials based on stipulated facts follow the
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procedure of a non-jury trial with respect to the decision, post-trial practice,
and appeal. See Pa.R.Civ.P. 1038.1 (Explanatory Comment-1996).
As in G & G, appellant filed a timely notice of appeal but failed to
preserve any issues on appeal when it did not file a post-trial motion.
Accordingly, appellant waived all issues on appeal. Assuming arguendo, that
appellant did preserve its issues on appeal, this court would still affirm based
on the well-reasoned opinion of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2018
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