Bishop, R. v. LCM-MAR Enterprises ( 2019 )

J-A13026-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RANDALL F. BISHOP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LCM-MAR ENTERPRISES D/B/A :
GREENWOOD MUSHROOMS :
: No. 3294 EDA 2018
Appeal from the Judgment Entered November 2, 2018
In the Court of Common Pleas of Chester County Civil Division at No(s):
2017-00528-RC
BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 04, 2019
Appellant Randall F. Bishop appeals from the judgment entered in favor
of Appellee LCM-MAR Enterprises d/b/a Greenwood Mushrooms. Appellant
and the trial court agree that the case should be remanded to have the trial
court resolve an outstanding ejectment claim. Appellee also acknowledges
the outstanding ejectment claim. For the reasons that follow, we quash the
appeal.
We briefly recite the background of this matter, as the details are
unnecessary for our disposition. Appellant sued Appellee for building a
concrete water pipeline on Appellant’s land without his knowledge or
permission. Trial Ct. Op., 1/23/19, at 3. Specifically, Appellant raised a claim
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A13026-19
for ejectment and a claim for trespass. Id. Prior to trial, the parties stipulated
that Appellee was liable for ejectment, would remove the pipe, and would pay
$2,000 per month until the pipe was removed. Id. at 15. The parties,
however, did not agree when the monthly payment would commence. Id.
The case proceeded to a bench trial. The trial court entered a decision
only on the trespass claim, as it believed that the “ejectment claim was
resolved by the parties prior to trial.” Verdict, 9/27/18, at 7. Specifically, the
trial court ruled in Appellant’s favor on his trespass claim but did not award
damages. Appellant timely filed a post-trial motion, which the trial court
denied.
On November 2, 2018, the trial court entered judgment. Appellant
timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues on appeal:
1. Did the trial court err by concluding that the ejectment claim
was resolved by the parties prior to trial in that the [trial c]ourt
failed to enter a judgment of ejectment in favor of Appellant on
count one, specifying that the work to remove the pipe and correct
the erosion was to be completed no later than January 1, 2019,
and that Appellee was to pay [Appellant] $2,000 a month,
commencing November 1, 2018, for each month the pipe
remained in place on [Appellant’s] property, as stipulated by the
parties on the record?
2. Did the trial court err in failing to award [Appellant]
compensatory damages for the value of the intentional use by
[Appellee] of a portion of [Appellant’s] land without consent or
privilege to do so, i.e., did the trial court employ an incorrect
measure of damages for the trespass?
Appellant’s Brief at 4.
-2-
J-A13026-19
Initially, Appellant argues that the parties had stipulated that Appellee
would concede to ejectment. Id. at 12. Appellant, however, contends that
the court misunderstood the stipulation and held that the “ejectment claim
was resolved by the parties prior to trial.” Id. at 16 (quoting Trial Ct. Op.,
1/23/19, at 17)). The trial court acknowledged that it erred by finding that
the parties had “completely resolved” the ejectment claim and has requested
this Court to remand the case. Trial Ct. Op. at 17. Appellee also agrees that
the ejectment claim is unresolved, but has asked that this Court amend the
judgment to reflect their agreement to a particular calculation of damages.
Appellee’s Brief at 6.
Pennsylvania Rule of Appellate Procedure 341 states that “an appeal
may be taken as of right from any final order of a . . . trial court.” Pa.R.A.P.
341. The rule defines a “final order” as an order that “disposes of all claims
and of all parties.” Id. In Levitt v. Patrick, 976 A.2d 581 (Pa. Super. 2009),
this Court explained as follows:
The key inquiry in any determination of finality is whether there is
an outstanding claim. If any claim remains outstanding and has
not been disposed of by the trial court, then . . . this Court lacks
jurisdiction to entertain the appeal unless the appeal is
interlocutory or we grant permission to appeal.
Levitt, 976 A.2d at 588 (citations omitted).
Here, all parties and the trial court agreed that the trial court erred by
not resolving the ejectment claim. The trial court’s decision, therefore, cannot
be construed as a final order disposing of all claims. See Pa.R.A.P. 341.
-3-
J-A13026-19
Because the ejectment claim is “outstanding and has not been disposed by
the trial court, then . . . this Court lacks jurisdiction” over Appellant’s appeal.
See Levitt, 976 A.2d at 588. Although Appellee has suggested that this Court
modify the trial court’s judgment to reflect an apparent agreement between
the parties regarding damages, the modification requested is not analogous
to a patent mathematical error in calculating damages. See Braun v. Wal-
Mart Stores, Inc., 24 A.3d 875, 981-82 (Pa. Super. 2011) (per curiam)
(modifying judgment to correct mathematical error in amount of damages).
Although Appellee’s position has practical merit, we deem it inappropriate for
this Court to substantively amend the judgment. Accordingly, we quash the
appeal.1
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/19
____________________________________________
1After the trial court resolves all claims, the parties shall comply with the rules
of civil procedure addressing post-trial practice and entry of judgment.
-4-