Firely, J. v. Warner, R. ( 2017 )

J-A19007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN FIRELY AND HOLLY FIRELY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
RALPH B. WARNER, IV, DANIEL
GLENNON AND ROBERT SEVILLE,
TRUSTEES FOR ADAM WARNER,
Appellants No. 3415 EDA 2016
Appeal from the Judgment Entered December 9, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 09-32019
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 26, 2017
Appellants, Ralph B. Warner, Daniel Glennon and Robert Seville,
Trustees for Adam Warner, appeal from the judgment entered on December
9, 2016, against Appellants and in favor of Appellees, John Firely and Holly
Firely, in the amount of $70,000.00.1 After careful review, we affirm.
____________________________________________
1 Appellants purport to appeal from the October 3, 2016 order denying their
post-trial motion. Ordinarily, an appeal properly lies from the entry of
judgment, not from the order denying post-trial motions. See Johnston
the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super.
1995). Nevertheless, a final judgment entered during pendency of an
appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull
Equipment and Supply, Co., 787 A.2d 1050, 1052 n.1 (Pa. Super. 2001).
Here, Appellants filed a notice of appeal prematurely on October 25, 2016,
prior to the entry of judgment. However, the record reflects that judgment
was entered on December 9, 2016. In accordance with the Pennsylvania
Rules of Appellate Procedure, we treat Appellants’ notice of appeal as if it
(Footnote Continued Next Page)
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The trial court provided the following summary of the relevant facts
and procedural history of this case in its Pa.R.A.P. 1925(a) opinion:
[O]n November 7, 2008, [Appellees] offered to purchase the
subject property from the above-captioned [Appellants], for the
purchase price of $700,000.00. In furtherance thereof,
[Appellees] placed $70,000[.00] in escrow as a deposit. Both
parties were represented by realtors.
On December 3, 2008, [Appellees] signed the Agreement
of Sale [(“Agreement”)]; [Appellants] executed the same on
December 9, 2008.
On December 13, 2008, [Appellees] initiated and executed
the Agreement with the addenda, and forwarded, via e-mail, a
fully executed copy of the Agreement to [Appellees’] realtor that
same day. The Agreement … at issue is a standard agreement
of sale for real estate, approved and recommended by the
Pennsylvania Association of Realtors.
The aforementioned Agreement required a fifteen (15) day
water and sewer inspection contingency period. The “start date”
for inspections began on December 14, 2008. At trial, the
parties disputed how to calculate the fifteen (15) days from that
date.
[Appellees’] contractor inspected the well and septic
systems and indicated that the septic system was unsatisfactory,
and that the well water did not meet established portability
standards.
Therefore, on December 29, 2008, [Appellees’] realtor,
Kristin Smith [(“Ms. Smith”)], e-mailed [Appellants’] realtor,
Thomas McCabe [(“Mr. McCabe”)], and indicated that neither the
well nor the septic systems passed inspection, and that
[Appellees] were not willing to go forward with the purchase
unless [Appellants] were willing to negotiate the septic issue.
(Footnote Continued) _______________________
were filed after the entry of judgment and on the date thereof. See
Pa.R.A.P. 905(a)(5). Hence, the instant appeal is properly before this Court.
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On January 2, 2009, [Mr. McCabe] e-mailed [Ms. Smith]
and indicated that [Appellants] were not willing to repair the
septic system. On January 6, 2009, [Appellees] signed a Notice
of Termination of Agreement of Sale and Agreement of Sale
Release and Distribution of Deposit Money. At that point,
[Appellants] did not sign the release. Instead[,] the parties’
realtors continued to negotiate up until February 4, 2009, in an
attempt to purchase the subject property.
Ultimately, the parties failed to come to an agreement, and
[Appellees] did not purchase the property. [Appellants] refused
to return [Appellees’] deposit monies.
On October 15, 2009, [Appellees] filed suit against
[Appellants,] seeking back their $70,000.00 deposit under the
Agreement.
On December 21, 2009, [Appellants] filed an answer, new
matter[,] and counterclaim to [Appellees’] complaint. The
counterclaim sought a declaratory judgment that [Appellees]
breached the agreement and were in default (count I); specific
performance to retain the deposit monies under the agreement
(count II); mitigated damages on the sale to the third party
(count III); and, incidental and consequential damages caused
by the property being vacant when the deal terminated (count
IV). The trial court precluded [Appellants] from pursing [sic]
count IV for incidental and consequential damages at trial.
In May of 2013, [Appellants] sold their property for
$425,000.00[,] to a third party. In the interim, [Appellants] had
negotiated with several other potential buyers, and had entered
into several agreements of sale, which never came to fruition.
[Appellants] also leased the property for a portion of time prior
to sale.
On September 29, 2016, after a bench trial on the matter,
the trial court found in favor of [Appellees] and against
[Appellants], and awarded [Appellees] their $70,000.00 deposit
back. With reference to [Appellants’] counterclaim, the trial
court found against [Appellants].
On November 28, 2016, the trial court denied [Appellants’]
motion for post-trial relief.
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Trial Court Opinion (“TCO”), 1/24/17, at 1-3 (citations to record and
unnecessary capitalization omitted).
On October 25, 2016, Appellants filed a timely notice of appeal,
followed by a timely, court-ordered Rule 1925(b) concise statement of errors
complained of on appeal. Appellants present the following issues for our
review:
A. Whether Appellants’ [c]oncise [s]tatement of [e]rrors
[c]omplained of on [a]ppeal [c]omplies with Pa.R.A.P.
1925(b) in order to permit this appeal?
B. Whether the trial court erred as a matter of law and/or
abused its discretion when its determination is not supported
by competent evidence in the record?
Appellants’ Brief at 4.
To begin, we must determine whether Appellants’ Rule 1925(b)
statement complies with the Pennsylvania Rules of Appellate Procedure.
Whenever a trial court orders an appellant to file a concise
statement of matters complained of on appeal pursuant to Rule
1925(b), the appellant must comply in a timely matter.
Commonwealth v. Castillo, … 888 A.2d 775, 780 (Pa. 2005);
see also Lineberger v. Wyeth, 894 A.2d 141, 148 n.4 (Pa.
Super. 2006) (noting that principles surrounding application of
Rule 1925(b) enunciated in criminal cases apply equally to civil
cases). Failure to comply with a Rule 1925(b) order will result in
waiver of all issues raised on appeal. Castillo, … 888 A.2d at
780; Lineberger, supra at 148. Furthermore, any issue not
raised in an appellant’s Rule 1925(b) statement will be deemed
waived for purposes of appellate review. Lineberger, supra at
148.
***
[T]his Court has also addressed the issue of Rule 1925(b)
statements that are vague and/or overly broad. We have
consistently held that a Rule 1925(b) statement is not in
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compliance with the Rules of Appellate Procedure if it is so vague
and broad that it does not identify the specific questions raised
on appeal. See, e.g., Wells v. Cendant Mobility Financial
Corp., 913 A.2d 929, 932-34 (Pa. Super. 2006); Lineberger,
supra at 148-49.
Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007)
(emphasis added in original).
Here, the trial court requests that this appeal “be quashed as a
violation of [Rule] 1925(b)(4)(ii),” based on its contention that Appellants’
Rule 1925(b) statement contains only generic allegations of error and in no
way specifies how the trial court erred. TCO at 4. We agree that the errors
set forth in Appellants’ Rule 1925(b) statement are vague. However, before
we conclude that this appeal should be quashed, we must examine the
record to determine whether the trial court provided a basis for its ruling.
This Court has previously stated,
unless one knows the basis for a court’s order, there is no way
to specifically challenge its rationale….
When one seeking to appeal has no basis in the record to discern
the basis for the order being challenged, Pa.R.A.P. 1925(b) must
not be employed as a trap to defeat appellate review, requiring
specifically stated challenges to the resolution of issues before
there has been any revelation as to how the issues have been
resolved.
Hess, 925 A.2d at 804 (quoting Ryan v. Johnson, 564 A.2d 1237, 1239
(Pa. 1989)).
As we elaborated in Hess,
[w]hen the reasons for a trial court’s ruling are vague or not
discernable from the record, then an appellant may be forced to
file a vague Rule 1925(b) statement, and it would be unjust to
consider such filing a violation of the Rule…. [U]nder these
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limited circumstances … it is not appropriate to find waiver or to
dismiss the appeal based on a vague Rule 1925(b) statement.
Id. (emphasis added in original and internal citations omitted).
After careful review of the record, we discern that the trial court failed
to provide any rationale for its decision. Neither the record nor the order
itself is informative in this regard, and the court did not file a memorandum
in support of its decision. Accordingly, we conclude that the issues raised by
Appellants on appeal are not waived for failure to file a sufficiently specific
Rule 1925(b) statement. Moreover, the trial court’s Rule 1925(a) opinion
provides a detailed explanation of its rationale for the ruling which is the
subject of this appeal. Thus, our ability to conduct meaningful and effective
appellate review is not impeded. We now turn to the merits of this appeal.
It has been well established that:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of
fact of the trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the evidence in a
light most favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not supported by
competent evidence in the record or if its findings are premised
on an error of law. However, where the issue … concerns a
question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.
Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.
Super. 2007) (internal citations and quotation marks omitted).
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Appellants claim that the trial court’s ruling in favor of Appellees is not
supported by competent evidence in the record. Specifically, Appellants
allege that Appellees failed to timely exercise their right to terminate the
Agreement within the allotted contingency period and, therefore, were
required to purchase the Property from Appellants in accordance with the
terms of the Agreement. In the alternative, Appellants argue that even if
Appellees’ alleged notice of intent to terminate the Agreement is deemed
timely, the notice was not in the proper format. Hence, Appellants conclude
that Appellees would still be bound to complete the sale as provided by the
terms of the Agreement. See Appellants’ Brief at 18, 22.
In order to address Appellants’ claim, we first examine the relevant
portions of the underlying Agreement. The contract clearly reflects that
Appellees elected a fifteen (15) day contingency period to allow for property,
water, and sewer inspections. See Agreement, 12/13/08, at 4-6 ¶¶ 11-15.2
These contingencies are governed by “Option 1” under Paragraph 10 of the
Agreement, which further provides:
10. Inspection Contingency Options
The inspection contingencies elected by Buyer in Paragraphs 11-
15 are controlled by the Options set forth below. The time
periods stated in those options will apply to all inspection
____________________________________________
2 Paragraphs 11 through 15 of the Agreement expressly provide that each
elected contingency period is fifteen (15) days from the execution date, if
not otherwise specified. No alternative time frame for the elected
contingencies was specified in the contract by the parties. Id.
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contingencies in paragraphs 11-15 unless otherwise stated by
this Agreement.
Option 1. Within the Contingency Period as stated in Paragraphs
11-15, Buyer will:
1. Accept the Property with the information stated in
the report(s) and agree to the Release and/or
Releases in Paragraph 27 of this Agreement, OR
2. If Buyer is not satisfied with the information stated
in the report(s), terminate this Agreement by written
notice to the Seller, with all deposit monies returned
to the Buyer according to the terms of paragraph 20
of this Agreement, OR
3. Enter into a mutually acceptable written agreement
with Seller providing for any repairs or
improvements to the Property and/or any credit to
Buyer at settlement, as acceptable to the mortgage
lender(s), if any.
If Buyer and Seller do not reach a written agreement
during the specified Contingency Period, and Buyer
does not terminate this Agreement by written notice
to Seller within that time, Buyer will accept the
Property and agree to the RELEASE in paragraph 27
of this Agreement.
Id. at 4 ¶10.
In addition, paragraph 5 of the Agreement states, in relevant part:
5. DATES/TIMES OF THE ESSENCE
(A) The settlement date and all other dates and
times referred to for the performance of any of the
obligations of this Agreement are of the essence and
are binding.
(B) For purposes of this Agreement, the number of
days will be counted from the date of execution,
excluding the day this Agreement was executed and
including the last day of the time period. The
Execution Date of this Agreement is the date when
Buyer and Seller have indicated full acceptance of
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this Agreement by signing and/or initialing it. All
changes to this Agreement should be initialed and
dated.
Id. at 2 ¶5.
Additionally, paragraph 29 of the Agreement grants Appellants the
option to retain the $70,000.00 deposit in escrow, in the event that
Appellees breach any terms or conditions of the contract. See id. at 9 ¶29.
In accordance with paragraph 30, all deposit monies must be returned to
Appellees in the event that Appellees terminate the Agreement pursuant to
any right granted therein, and the Agreement will be void. Id. at ¶30.
In the instant matter, the trial court determined that the evidence
produced at trial established Appellees were entitled to the return of their
$70,000.00 deposit, pursuant to paragraph 30 of the Agreement. After
careful review, we discern sufficient evidence in the record to support the
court’s findings.
First, the trial court explained:
Under the Agreement, [Appellees] had fifteen (15) days
from the date of the contract execution to accept the information
in the inspections and proceed with the sale or to obtain a
written agreement from the [Appellants] to provide for any
necessary repairs/credit at settlement. If neither of these
events occurred during the fifteen (15) day period, then
[Appellees] accepted the property and could not recoup the
deposit.
The evidence showed that [Appellees] initialed the last
changes to the Agreement and forwarded the same to
[Appellants’] agent, [Mr.] McCabe, on December 13, 2008.
On December 15, 2008, [Appellants’] agent, [Mr.] McCabe,
sent an e-mail to [Appellant, Mr. Warner,] stating, “[t]he
finalized contract was received by e-mail on Saturday[,]
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December 13, 2008. The start date for all buyer property
inspections is December 14, 2008.[”] [Appellees’] agent,
[Ms.] Smith, testified at trial that based on this e-mail, she
believed [Appellees] had from the day after the 14th,
December 15, 2008, through December 29, 2008, to
provide notice on the inspections.[3]
Moreover, in an e-mail dated January 2, 2009, from
[Appellant, Mr. Warner,] to [Mr.] McCabe, [Mr.] Warner, too,
acknowledged that the last day for termination was December
29, 2008. [Mr.] Warner wrote, “Please notify the buyers we will
not remediate the septic system issues or any other issues. The
sales price and contingency concessions we have already made
were to allow for these types of issues. As you wrote, the buyer
should not be able to terminate the agreement of sale at this
time based on inspections since the deadline for termination
based on inspections (Dec 29) has passed. We do not plan
on re-inspecting the septic system.”
TCO at 7-8 (citations to the record omitted) (emphasis added).
In reaching its decision, the trial court relied on Appellees’ expert
report, as well as the testimony of Appellees and their realtor, Ms. Smith.
Id. at 6. The court also indicated that it was not persuaded by Mr. McCabe’s
testimony, and that it found much of Mr. Warner’s testimony to be
irrelevant. Id. It is well-established that:
In a non-jury trial, the factfinder is free to believe all, part, or
none of the evidence, and the Superior Court will not disturb the
trial court’s credibility determinations. Assessments of credibility
and conflicts in evidence are for the trial court to resolve; this
Court is not permitted to reexamine the weight and credibility
____________________________________________
3 On redirect examination, Ms. Smith stated that she often uses the terms
“start date” and “execution date” interchangeably. She further revealed that
when Mr. McCabe stated by email that the “start date was December 14 th,”
she considered that to be a revised execution date. See N.T. Trial, 9/29/16,
at 83-84.
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determinations or substitute our judgments for those of the
factfinder. The test is not whether this Court would have
reached the same result on the evidence presented, but rather,
after due consideration of the evidence the trial court found
credible, whether the trial court could have reasonably reached
its conclusion.
Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916 (Pa. Super.
2017).
The following portion of the report issued by Appellees’ expert, Ellen B.
Renish, was reproduced by the trial court in support of its finding that
Appellees provided timely notice of termination, in accordance with the
Agreement:
The date of December 14, 2008, was indicated as the
execution of the Agreement…. This would provide the start date
of inspection and reply period as December 15, 2008, through
December 29, 2008 by [Appellees] to [Appellant]. This would
indicate that [Appellees,] through their agent[, Ms. Smith,]
responded timely to the inspections and indicated that they
would be terminating in the event [Appellants] were not willing
to negotiate the septic repairs/replacement.
[Appellants’] Agent[, Mr. McCabe,] did not respond to
this request from [Appellees’] Agent until January 6,
2009. Their response indicated that they would not negotiate
on the cost of repairs to the septic system and that they
accepted a purchase price lower than the list price with the
thought that repairs would be the responsibility of [Appellees].
The termination of the Agreement … was provided by
[Appellees’] Agent on December 29, 2008 by email[;] however,
this was not acknowledged by [Appellants] or [Appellants’]
Agent. Subsequent to this email response, an additional written
termination dated January 6, 2009, and signed by [Appellees]
was provided to [Appellants’] Agent confirming the previous
email termination.
[Appellants] did not attempt to negotiate repairs as
requested by [Appellees] after receiving the reply to the
inspection and notification that the septic system had failed. All
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correspondence concerning the terms of the Agreement
were being conveyed by the Agents of each party
([Appellants] and [Appellees]) throughout this
transaction. This is evidenced by emails between the
Agents for the parties. It also appears that all changes
that were made to the Agreement … did not receive
initials by all parties, but emails between the Agents for
the respective parties were being conveyed on their
behalf. It appears that the response time for [Appellants]
to [Appellees] was often disregarded. It is unknown if
the Trust made up of multiple individuals was unable to
respond as proscribed by the Agreement … and this
practice was then followed throughout the course of this
transaction.
It is clear that both parties[’] Agents had some difference
in determining the appropriate date[s] for notification and
communication. I believe [Appellees] did notify their
Agent timely to respond after inspections were
completed. It also appears that [Appellants] may not
have been notified by their Agent timely and that may
have been due to the nature of having to communicate
with multiple sellers.
TCO at 8-9 (emphasis added by trial court).
After emphasizing the parties’ timeliness, or lack thereof regarding
their dealings with each other, supra, the court expressed that it was
“unwilling to impose a hyper-technical interpretation on the parties’
Agreement, after the fact, where the parties themselves failed to strictly
abide by the contract terms during the process.” Id. at 9 (emphasis
added by trial court). Our courts have held that even where an agreement
of sale makes time of the essence, this provision may be waived by conduct
of the parties. See DiGiuseppe v. DiGiuseppe, 96 A.2d 874, 875 (Pa.
1953) (citing Cohn v. Weiss, 51 A.2d 740, 742 (Pa. 1947)); see also
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Davis v. Northridge Development Associates, 622 A.2d 381, 386 (Pa.
Super. 1993).
Moreover, the trial court rejected Appellants’ claim that Ms. Smith’s
December 29, 2008 email, stating that Appellees no longer wished to
proceed with the sale unless Appellants were willing to negotiate on the
septic system issue, was invalid due to improper format.
[Appellants] failed to provide any support for this argument
other than [Mr.] McCabe’s conclusory statement. The court was
not directed to any language in the Agreement indicating that a
buyer must terminate with a specific form, nor did either expert
indicate that notice of termination had to be in a specific format.
TCO at 9 (citations to record omitted).
Finally, regarding Appellants’ Counterclaim, the trial court found in
favor of Appellees, stating that Appellants had “simply failed to meet their
burden of proof to establish that any loss on the ultimate sales price was
attributable to [Appellees].” TCO at 9. The court elaborated:
The testimony was clear that the housing market took a sharp
downturn in 2008 after the Agreement at issue terminated, a
situation obviously out of [Appellees’] control. Also, after the
termination, [Appellants] placed the house back on the market
for a substantially higher price than they had accepted from
[Appellees]. Finally, the Sellers had numerous deals fall through
regarding the property at issue for some time post-termination.
[Appellees] could not be held responsible for any losses from
situations of which they played no role.
Id. at 9-10 (citations to record omitted). The trial court’s finding is well-
supported by the record.
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Based on the foregoing, we discern no error of law by the trial court.
Accordingly, we affirm the judgment entered in favor of Appellees.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2017
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