Pennsylvania Windpower, Inc. v. Fedak, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PENNSYLVANIA WINDPOWER, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID M. FEDAK :
:
Appellant : No. 787 MDA 2016
Appeal from the Order April 20, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 2007-13100
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 27, 2017
Appellant, David M. Fedak (“Fedak”), appeals from the April 20, 2016,
order, entered after a bench trial, granting Appellee, Pennsylvania
Windpower, Inc.’s (“PA Windpower”), request for specific performance to
execute an easement pursuant to a written option agreement between the
parties. For the following reasons, we quash the appeal.
The relevant facts and procedural history are as follows: On November
13, 2007, PA Windpower, a company engaged in the development of a
windfarm, initiated the instant action by filing a complaint against Fedak
alleging a breach of a December 5, 2005, written option agreement whereby
PA Windpower was granted the option to obtain a nonexclusive easement
* Former Justice specially assigned to the Superior Court.
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over Fedak’s land located in Bear Creek Township, PA. PA Windpower
alleged that, pursuant to the terms of the agreement, it timely exercised its
option; however, Fedak refused to execute the easement agreement. PA
Windpower averred Fedak’s refusal constituted a breach of the parties’
December 5, 2005, written option agreement and that monetary damages
alone would be insufficient to remedy the breach. Accordingly, PA
Windpower sought specific performance, as well as attorneys’ fees.
On December 10, 2007, Fedak filed preliminary objections to PA
Windpower’s complaint, and by order filed on February 6, 2008, the trial
court denied and dismissed Fedak’s preliminary objections. Fedak filed a
motion seeking reconsideration and/or certification of the interlocutory order
for appellate review; however, by order filed on February 14, 2008, the trial
court denied the motion.1
On May 12, 2008, Fedak filed an answer with new matter and a
counterclaim. With regard to the counterclaim, Fedak alleged that PA
Windpower breached the December 5, 2005, written option agreement by
significantly changing the original project layout, i.e., changing the location
of the proposed access routes, transmission lines, and substation. Fedak
averred the alterations materially changed the scope of the contemplated
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1
Fedak filed with this Court a petition for review; however, by order filed on
April 22, 2008, we denied the petition for review. See Pennsylvania
Windpower, Inc. v. Fedak, 12 MDM 2008 (Pa.Super. filed 4/22/08) (per
curiam order).
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agreement. PA Windpower filed an answer to Fedak’s new matter and
counterclaim.
On October 30, 2014, Fedak filed a motion for summary judgment
seeking dismissal of PA Windpower’s complaint on the basis of failure to join
indispensable parties. Fedak also sought summary judgment specifically as
to PA Windpower’s claim of attorneys’ fees. PA Windpower filed an answer
in opposition to the summary judgment motion. By order and opinion
entered on March 23, 2015, the trial court denied, in part, and granted, in
part, Fedak’s motion for summary judgment. Specifically, the trial court
denied Fedak’s motion for summary judgment as it related to PA
Windpower’s failure to join indispensable parties, but granted Fedak’s motion
for summary judgment as it related to PA Windpower’s claim for attorneys’
fees.
On March 29, 2016, the matter proceeded to a non-jury trial. By order
and opinion entered on April 20, 2016, the trial court “upon consideration of
the testimony and exhibits presented at the non-jury trial. . .GRANT[ED] PA
Windpower[’s] [ ] request for specific performance against [ ] Fedak to
execute the easement[.]” Trial Court Order, filed 4/20/16 (capitalization in
original).2 On May 17, 2016, Fedak filed a notice of appeal to this Court.
Thereafter, the trial court directed Fedak to file a Pa.R.A.P. 1925(b)
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2
The certified docket entries reveal that the Prothonotary mailed the order
to Fedak in accordance with Pa.R.C.P. 236.
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statement, Fedak timely complied, and the trial court filed a responsive
Pa.R.A.P. 1925(a) opinion.
In this appeal, Fedak contends (1) the trial court erred in denying his
motion for summary judgment as it pertains to PA Windpower’s failure to
join indispensable parties, and (2) the trial court erred in granting PA
Windpower’s request for specific performance following the non-jury trial
where the parties’ agreement was not clear, unambiguous, or uncertain.
Preliminarily, we must consider whether this appeal is properly before
us. See Commonwealth v. Blystone, --- Pa. ---, 119 A.3d 306 (2015)
(noting that issues of jurisdiction may be raised by the appellate court sua
sponte). “As a general rule, this Court has jurisdiction only over appeals
taken from final orders.”3 Angelichio v. Myers, 110 A.3d 1046, 1048
(Pa.Super. 2015) (citation omitted). “Absent entry of judgment, a verdict[,
or decision,] is not a final order.” Minich v. City of Sharon, 472 A.2d 706,
707 (Pa.Super. 1984). In this case, judgment has not been entered in favor
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3
Generally, this Court may reach the merits of an appeal taken from (1) a
final order or an order certified as final by the trial court (Pa.R.A.P. 341); (2)
an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order
by permission (Pa.R.A.P. 312); or (4) a collateral order (Pa.R.A.P. 313). In
the case sub judice, Fedak mistakenly suggests that he is appealing from a
final order under Pa.R.A.P. 341. See Fedak’s Brief at 1. In any event, the
trial court’s order has not been certified as final and Fedak has not sought
permission to appeal the interlocutory order. Moreover, there is no
indication the order is appealable as of right under Pa.R.A.P. 311 or qualifies
as a collateral order under Pa.R.A.P. 313.
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of PA Windpower; but rather, only a trial court order and opinion is entered
on the docket.
As this Court has recognized:
[W]here the rules require the entry of judgment, and such action
has not been taken prior to the filing of an appeal, this Court
may take such action as it deems appropriate, including quashal
of the appeal, dismissal of the appeal, or remand of the matter
to the lower court so that judgment may be entered.
Ryan v. GAF Corp., 665 A.2d 843, 844 (Pa.Super. 1995) (citations
omitted). See Pa.R.C.P. 227.4. Typically, we would take one of the actions
set forth in Ryan, supra so that judgment may be entered in the court
below; however, in this case, Fedak has waived all of his issues on appeal.
Our Rules of Civil Procedure provide that “[p]ost-trial motions shall be
filed within ten days after. . .the filing of the decision in the case of a trial
without jury.” Pa.R.C.P. 227.1(c)(2). In civil cases governed by this Rule,
the filing of post-trial motions is mandatory if a litigant wishes to preserve
issues for appellate review. See Sovereign Bank v. Valentino, 914 A.2d
415 (Pa.Super. 2006). Accordingly, “[i]f an issue has not been raised in a
post-trial motion, it is waived for appeal purposes.” Id. at 426 (quotation
marks and quotations omitted). Our Supreme Court has held this
requirement applies to trial court orders entered following a trial in both
actions at law and in equity. See Chalkey v. Roush, 569 Pa. 462, 805
A.2d 491 (2002). In Chalkey, the Supreme Court explained that “[t]he
purpose for Rule 227.1 is to provide the trial court with an opportunity to
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correct errors in its ruling and avert the need for appellate review.”
Chalkey, 569 Pa. at 467 n.9, 805 A.2d at 494 n.9. “Accordingly, ‘[the
Superior] Court has consistently quashed appeals from orders or verdicts
following non-jury trials when no post-trial motions were filed.’” Warfield
v. Shermer, 910 A.2d 734, 737 (Pa.Super. 2006) (quoting Diamond Reo
Truck Co. v. Mid–Pacific Industries, Inc., 806 A.2d 423, 428 (Pa.Super.
2002) (citation omitted)).
In the case sub judice, Fedak failed to file a post-trial motion, and
thus, he has waived his issues on appeal. Accordingly, in the interest of
judicial economy, instead of quashing, dismissing, or remanding to permit
the entry of judgment, and then finding all issues waived upon return of the
case to this Court, we quash on the basis that Fedak has failed to preserve
his issues for appeal.4
Appeal Quashed.
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4
We note that Fedak presented his two appellate issues in his court-ordered
Pa.R.A.P. 1925(b) statement. However, this Court has held that the filing of
a Pa.R.A.P. 1925(b) statement does not excuse the failure to file post-trial
motions and does not revive issues that have been waived for failing to file
post-trial motions. See Diamond Reo Truck Co., supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
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