Total Resolution, LLC v. Total Landscaping, Inc. ( 2020 )

J-A01006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TOTAL RESOLUTION, LLC, : IN THE SUPERIOR COURT OF
ASSIGNEE OF THE HONESDALE : PENNSYLVANIA
NATIONAL BANK :
:
:
v. :
:
:
TOTAL LANDSCAPING, INC., JOHN : No. 1391 EDA 2019
BOLD, AND BARBARA J. LINDE BOLD :
:
:
APPEAL OF: BARBARA J. LINDE BOLD :
:
Appeal from the Order Entered March 28, 2019
In the Court of Common Pleas of Wayne County Civil Division at No(s):
No. 550-CV-2009
BEFORE: NICHOLS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 9, 2020
Appellant Barbara J. Linde Bold, also known as Barbara Linde, appeals
from the order denying the parties’ joint motion for a continuance and
Appellant’s petition to quash the writ of execution filed by Appellee Total
Resolution, LLC, assignee of the Honesdale National Bank, or in the alternative
for a stay of execution and demand for accounting as moot. For the reasons
stated herein, we affirm.
This Court previously summarized the relevant background of this
matter:
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* Retired Senior Judge assigned to the Superior Court.
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Total Landscaping, Inc. (Total Landscaping) is a Pennsylvania
corporation owned by Appellant and her ex-husband, John Bold
(John). On February 9, 1996, the Honesdale National Bank (the
Bank) executed a commercial loan to Total Landscaping in the
amount of $500,000. The loan was secured by a promissory note
authorizing confession of judgment in the event of default, and
Appellant and John executed a personal guaranty for payment.
During the pendency of Appellant’s divorce proceedings with John,
Total Landscaping defaulted on its loan with the Bank. . . . On July
7, 2009, the Bank filed a complaint to confess judgment against
Total Landscaping, Appellant, and John (collectively Judgment-
Debtors) for their failure to make payments as required under the
promissory note. Upon application from the Bank, the trial court
entered judgment against Judgment-Debtors in the amount of
$512,805.97. On May 10, 2010, the Bank sold its judgment
interest to [Appellee].
Total Resolution, LLC v. Total Landscaping, Inc., No. 665 EDA 2016, 2018
WL 1280500 at *1 (Pa. Super. filed Mar. 13, 2018) (unpublished mem.) (Total
I).1
The trial court summarized the factual and procedural history of this
case as follows:
[Appellee] . . . filed a Praecipe for a Writ of Execution on October
10, 2018 directing the Wayne County Sheriff to execute against
the property of Defendants, Total Landscaping, Inc., John Bold,
and [Appellant] and also against the Garnishee, Linde Corporation
asserting a total amount due of $381,605.93. . . . On or about
November 19, 2018, [Appellant] filed a Petition to Quash the Writ
of Execution, or in the Alternative for a Stay of Execution and
Demand for Accounting [as Moot].
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1 In Total I, Appellee sought, and the trial court granted, an order compelling
a judicial sale of Appellant’s 50% interest in a partnership in order to satisfy
the underlying judgment. Total I, 2018 WL 1280500 at *3. On appeal,
Appellant challenged the order on various grounds, and this Court affirmed.
Id. at *6.
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Trial Ct. Op., 8/12/19, at 1-2.
In her petition to quash the writ of execution, or in the alternative for a
stay of execution and demand for accounting as moot, Appellant argued that
Appellee had not properly credited Appellant for distributions that Appellee
received from the foreclosure and sale of Appellant’s interests in various
business entities (Entities). Pet. to Quash, 11/19/18, at ¶¶ 6-12. Appellant
requested the writ of execution be quashed on the grounds the judgment was
already satisfied. Id. at ¶ 13. Appellant argued that Appellee’s exclusive
remedy to enforce its judgment against Appellant’s interest in the Entities was
the previously obtained charging orders, which compelled the aforementioned
sale of Appellant’s interest in the Entities. Id. at ¶ 14 (citing 15 Pa.C.S. §§
8673, 8853). Appellant requested, in the alternative, that execution be stayed
until Appellee “fully account[ed] for all consideration received by [Appellee]
from the Entities or [Appellant’s] interests in the Entities.” Id. at ¶ 17.
The trial court scheduled a hearing on Appellant’s petition for March 28,
2019.2 According to the trial court,
[o]n March 27, 2019, the afternoon before the scheduled hearing,
[Appellant’s] Counsel and [Appellee’s] Counsel agreed on a joint
motion for a continuance requesting a sixty (60) day continuance
of the pending March 28 hearing. [Appellee’s] Counsel prepared
and provided a copy of the motion to [Appellant’s] [C]ounsel who
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2The trial court’s scheduling order did not denominate the hearing as a trial.
Order, 3/21/19.
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did not have any changes or revisions. [Appellant’s] Counsel
signed the motion.[3] [Appellee’s] Counsel and [Appellant’s]
Counsel placed a phone call to th[e trial] [c]ourt at 4:15pm the
day before the scheduled hearing and informed the Deputy Court
Administrator of their joint motion. As per Wayne County Court
of Common Pleas’ local rules, all motions must be presented
during Motions Court. Motions Court was scheduled at 9:00am
the following morning, immediately prior to the March 28, 2019
scheduled hearing. The Deputy Court Administrator urged both
parties to be present due to the possibility that th[e trial] [c]ourt
would deny the proposed order and joint motion thus proceeding
with the March 28, 2019 hearing as scheduled.
On the morning of March 28, 2019, [Appellee’s] Counsel made
their [sic] appearance at Motions Court. [Appellee’s] Counsel
gave the proposed order to the Court Administrator who provided
the copy to th[e trial] [c]ourt.[4] Th[e trial] [c]ourt denied said
motion and directed the parties to proceed with the schedule[d]
hearing that [Appellant’s] Counsel requested in their Petition. The
hearing proceeded as scheduled and [Appellant] and [Appellant’s]
Counsel failed to appear at the hearing.[5] Th[e trial] [c]ourt ruled
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3 The parties did not file a written motion for continuance with the trial court.
Instead, on behalf of the parties, Appellee’s counsel orally moved for a
continuance at the outset of the March 28, 2019 hearing. N.T., 3/28/19, at
4-6. We acknowledge that the reproduced record includes a copy of an unfiled
motion for continuance as an exhibit to Appellee’s response to the motion for
clarification/reconsideration. Because the motion was never filed, it is not
considered part of the official record, and we do not consider it. See Pa.R.A.P.
1921.
4 Appellee’s counsel informed the trial court that on the previous day “there
was some dialogue and telephone calls back and forth between counsel for”
the parties and that the purpose of the continuance request was “to allow the
parties to work through some of their disputes.” N.T., 3/28/19, at 4.
5 At the hearing, Appellee called Robert Hessling, the comptroller/treasurer of
Linde Corporation, who testified regarding the amount Appellant owed and
Appellee’s attempts to collect from Appellant and her co-defendants pursuant
to the underlying judgment. N.T., 3/28/19, at 7-21; see also id. at 5 (stating
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in favor of [Appellee] and entered an Order denying [Appellant’s]
Petition. The Prothonotary of Wayne County served th[e trial]
[c]ourt’s ruling to all parties in the afternoon of March 28, 2019.
Trial Ct. Op., 8/12/19, at 2-3.
The trial court’s March 28, 2019 order stated as follows:
AND NOW, to wit, this 28th day of March, 2019, after an oral
motion made by [Appellee’s counsel], for a 60 day continuance,
said oral motion is hereby DENIED[.]
Further, after a hearing on this matter, it is the order of this court
that [Appellant’s] petition to quash [Appellee’s] writ of execution
or in the alternative, for a stay of execution and demand for
accounting as moot, is hereby DENIED.
Order, 3/28/19.
Appellant filed a motion for clarification and/or reconsideration on April
10, 2019.6 Before the trial court ruled on the motion, Appellant filed a timely
notice of appeal on April 29, 2019.7 The trial court issued an order requiring
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that the scope of the hearing was limited to “resolving the value of the assets
obtained” by Appellee at the “last execution” and “the claim for interest”).
6 In her motion, Appellant cited an email between counsel discussing the joint
motion for continuance for the March 28, 2019 hearing. Mot. for Clarification
and/or Recons., 4/10/19, Ex. B, R.R. at 78a. The email stated that Appellee
would provide a full and complete accounting and the parties would seek a
joint sixty-day continuance of the hearing scheduled for the following day. Id.
The email did not state that a settlement had been reached between the
parties. In its response to Appellant’s motion for clarification and/or
reconsideration, Appellee denied that a settlement agreement had been
reached. Resp. to Mot. for Clarification and/or Recons., 4/17/19, at ¶¶ 7, 8,
11, 15.
7 Appellee argues that Appellant’s appeal was untimely filed because Appellant
filed her notice of appeal more than thirty days after the entry of the trial
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the filing and service of a Pa.R.A.P. 1925(b) statement, and Appellant
complied. The trial court issued a responsive Rule 1925(a) opinion, which we
discuss in further detail below.
Before we address Appellant’s issues, we first examine our jurisdiction
to hear this appeal, which we may raise sua sponte. See Kapcsos v.
Benshoff, 194 A.3d 139, 141 (Pa. Super. 2018) (en banc). Pennsylvania
Rule of Appellate Procedure 311(a)(2) provides as follows:
(a) General rule.—An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:
* * *
(2) Attachments, etc.—An order confirming, modifying,
dissolving, or refusing to confirm, modify or dissolve an
attachment, custodianship, receivership, or similar matter
affecting the possession or control of property, except for
orders pursuant to 23 Pa.C.S. §§ 3323(f), 3505(a).[8]
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court’s order on March 28, 2019. Appellee’s Brief at 14, 21 n.1, 31. Appellee
argues that because the thirtieth day from the date the trial court’s order was
Saturday, April 27, 2019, a timely notice of appeal could be filed no later than
Friday, April 26, 2019. Id. at 14. We disagree.
Generally, a notice of appeal must be filed within thirty days of the entry of
the order from which the appeal is taken. Pa.R.A.P. 903(a). Pennsylvania
Rule of Appellate Procedure 107 incorporates by reference the rules of
construction of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1901-
1991. Under the Statutory Construction Act, when the last day of any
computation of a time period falls on a Saturday, Sunday, or legal holiday, it
is omitted from the calculation. 1 Pa.C.S. § 1908. The last day Appellant
could timely file a notice of appeal was Monday, April 29, 2019. Therefore, the
notice of appeal filed on April 29, 2019, was timely filed and we will not quash.
8 Title 23 is the Domestic Relations Code, which is not at issue in this case.
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Pa.R.A.P. 311(a)(2) (emphasis added).9
An order denying a motion to set aside or stay a writ of execution is
appealable as of right as an interlocutory order under Pa.R.A.P. 311(a)(2).
Foulke v. Lavelle, 454 A.2d 56, 58 (Pa. Super. 1982). The Foulke Court
explained that because the trial court’s order at issue denied a motion to set
aside or stay a writ of execution, the order had “the result of ‘affecting the
possession or control of property[,’ and therefore fell] within the class of
orders which are appealable as [of] right under Pa.R.A.P. 311(a)(2).” Foulke,
454 A.2d at 58. Turning to the instant case, the trial court’s order, which
denied Appellant’s petition to quash the writ of execution or in the alternative
for a stay of execution and demand for accounting as moot, affects “the
possession or control” of Appellant’s property. See id. Therefore, the trial
court’s order is appealable as of right under Rule 311(a)(2). See id.Having established our appellate jurisdiction under Rule 311(a)(2), we
state Appellant’s issues, which we have reordered for our review:
1. Whether [Appellant] waived her appellate rights by not filing a
post-trial motion pursuant to Pa.R.C.P. 227.1.
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9 Generally, an order under Rule 311(a) may or may not require a post-trial
motion. Compare Wolk v. Sch. Dist. of Lower Merion, 197 A.3d 730, 739
(Pa. 2018) (holding order granting injunctive relief under Rule 311(a)(4) did
not require post-trial motion due to unresolved claims), with Motorists Mut.
Ins. Co. v. Pinkerton, 830 A.2d 958, 964 (Pa. 2003) (holding post-trial
motion was required following entry of declaratory judgment order under Rule
311(a)(8) after a non-jury trial).
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2. Whether the trial court committed error of law and abused its
discretion in entering an order denying the joint motion and the
petition, where: (1) [Appellant] and [Appellee] entered a
settlement agreement prior to entry of the order, (2) the trial
court was apprised of the existence of the settlement agreement
prior to entering the order, and (3) ruling on the merits of the
petition where a settlement agreement disposed of all litigable
issues is contrary to Pennsylvania law.
Appellant’s Brief at 3 (some capitalization omitted).
Appellant contends that “[u]nder established Pennsylvania law, not only
was [Appellant] not required to file such a [post-trial] motion, Rule 227.1 and
the accompanying case law in fact forbids the same.” Id. at 11 (emphasis
in original). Appellant cites a note to Pa.R.C.P. 227.1, which provides a
“motion for post–trial relief may not be filed to matters governed exclusively
by the rules of petition practice.” Id. (emphasis omitted). Appellant asserts
that in “the instant case, the trial court’s ruling on the petition, from which
[Appellant] appealed, bore no relation to a trial or trial-like proceeding.
Accordingly, [Appellant] was not required - and in fact not permitted - to file
a motion seeking post-trial relief.” Id. at 12 (citing, inter alia, DiGregorio v.
Keystone Health Plan E., 840 A.2d 361, 365 (Pa. Super. 2003), and
Thomas A. Robinson Family, Ltd. v. Bioni, 178 A.3d 839, 847 n.9 (Pa.
Super. 2017)) (some capitalization omitted). Appellant concludes “having
appealed from an order governed by petition practice and which was not
rendered in connection with a trial, [Appellant] was not required to file a post-
trial motion and the issues asserted herein have been properly preserved for
appellate review.” Id. at 13-14.
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Appellee counters that a post-trial motion must be filed after a trial court
renders a decision to preserve issues for appeal. Appellee’s Brief at 19 (citing,
inter alia, Vietri ex rel. Vietri v. Del. Valley High Sch., 63 A.3d 1281 (Pa.
Super. 2013), and Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s
Family Mkts., 52 A.3d 1233 (Pa. 2012)). Appellee argues that Appellant
“availed herself of a motion for post-trial relief when filing her motion for
reconsideration/clarification . . . .” Id. at 18. Appellee construes Appellant’s
motion as a request for “the trial court to reconsider and clarify its March 28,
2019 final order . . . .” Id. at 19. Appellee maintains that because Appellant
failed to attend the March 28, 2019 hearing, she failed to raise and preserve
issues at the hearing for appellate review. Id. (citing Pa.R.C.P. 227.1(b)(2));
see also id. at 27.10 Appellee further argues that Appellant’s motion was an
untimely post-trial motion, because it was filed on April 10, 2019, which was
more than ten days after the trial court’s March 28, 2019 order. Appellee’s
Brief at 20. Appellee concludes that because of these defects, any issues
Appellant wished to raise on appeal are waived. Id. at 21.
The trial court, in its Rule 1925(a) opinion, stated that Appellant’s
motion for clarification or reconsideration was filed thirteen days after the trial
court’s judgment and therefore could not be considered a timely post-trial
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10 Appellee reiterates that Appellant waived her issues because she did not
attend the trial court’s March 28, 2019 hearing and therefore could not
preserve her issues for appellate review. Appellee’s Brief at 27.
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motion. Trial Ct. Op., 8/12/19, at 4. The trial court concluded that Appellant’s
issues were waived because she “failed to file [a] timely post-trial motion[]”.
Id. The trial court did not explain why Rule 227.1 applies to this matter. See
id. at 3-4.
Appellant’s first issue “presents a pure question of law regarding the
interpretation of Pa.R.C.P. 227.1; therefore, our standard of review is de novo
and our scope of review is plenary.” Newman, 52 A.3d at 1239 (citations
omitted). In G & G Inv’rs, LLC v. Phillips Simmons Real Estate Holdings,
LLC, 183 A.3d 472 (Pa. Super. 2018) (G & G), the Court stated the analytical
framework as follows:
[t]o determine whether an appellant must file post-trial motions
following an in-court proceeding, we consider whether, under the
circumstances of the action:
(i) the plain language of Rule 227.1 makes clear a post-trial
motion is necessary;
(ii) case law provides a post-trial motion is necessary, even if
Rule 227.1 is silent on the subject; and
(iii) practicing attorneys would reasonably expect a post-trial
motion to be necessary.
Case law requires a post-trial motion following a proceeding,
where the court heard new testimony and received new evidence,
which the court relied upon when it issued its decision.
G & G, 183 A.3d at 477 (formatting altered and citations omitted).
Pennsylvania Rule of Civil Procedure 227.1 states in pertinent part:
(c) Post-trial motions shall be filed within ten days after
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(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.
* * *
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.
A motion for post-trial relief may not be filed to matters
governed exclusively by the rules of petition practice.
Pa.R.C.P. 227.1(c) & Note (emphases added and citation omitted).
The rules of petition practice are set forth in Rules 206.1-206.7. Rule
206.1 states in relevant part:
(a) As used in this chapter, “petition” means
(1) an application to strike and/or open a default judgment or
a judgment of non pros, and
(2) any other application which is designated by local rule,
numbered Local Rule 206.1(a), to be governed by Rule 206.1
et seq.
Pa.R.C.P. 206.1(a)(1)-(2). The Wayne County Court of Common Pleas has
not adopted a Local Rule 206.1(a).11
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11 See In re M.B., ___ A.3d ___, 2020 PA Super 27, 2020 WL 597236 at *8
n.9 (Pa. Super. filed Feb. 7, 2020) (reasoning that rules of petition practice,
including Clearfield County Local Rule 206.1(a), barred a post-trial motion
following an order resolving a petition to expunge a record of an involuntary
commitment).
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A petition to quash or stay a writ of execution is governed by Rule of
Civil Procedure 3121, which states in relevant part:
(b) Execution may be stayed by the court as to all or any part of
the property of the defendant upon its own motion or application
of any party in interest showing
(1) a defect in the writ, levy or service; or
(2) any other legal or equitable ground therefor.
* * *
(d) The court may on application of any party in interest set aside
the writ, service or levy
(1) for a defect therein;
(2) upon a showing of exemption or immunity of property from
execution, or
(3) upon any other legal or equitable ground therefor.
Pa.R.C.P. 3121(b), (d).
Turning to the instant case, we initially address whether “the plain
language of Rule 227.1 makes clear a post-trial motion is necessary . . .”
following a hearing and the trial court’s denial of Appellant’s petition to quash
or stay of writ of execution. See G & G, 183 A.3d at 477. As set forth above,
Rule 206.1(a) defines “petition” as an “application to strike and/or open a
default judgment or a judgment of non pros” or “any other application . . .
designated by . . . Local Rule 206.1(a).” Pa.R.C.P. 206.1(a)(1)-(2).
Appellant’s petition, which is subject to Rule 3121, is not an application to
strike and/or open a default judgment or a judgment of non pros. See
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Pa.R.C.P. 206.1(a)(1). Because the Wayne County Court of Common Pleas
has not adopted Local Rule 206.1(a), Appellant’s petition also does not fall
within “any other application which is designated by local rule” 206.1(a). See
Pa.R.C.P. 206.1(a)(2). Cf. M.B., ___ A.3d ___, 2020 PA Super 27, 2020 WL
597236 at *8 n.9. Because Appellant’s petition is not subject to the rules of
petition practice under Rule 206.1-206.7, we disagree that her petition was
exempt from Pa.R.C.P. 227.1 on that basis. See Pa.R.C.P. 227.1(c) & Note
(stating, “A motion for post-trial relief may not be filed to matters governed
exclusively by the rules of petition practice.”).
Second, we examine whether case law provides a post-trial motion is
necessary since Rule 227.1 was silent on whether a post-trial motion was
required following an order resolving a petition to quash or stay a writ of
execution. See G & G, 183 A.3d at 477. In G & G, we examined whether
the petitioner was required to file a post-trial motion after the trial court
denied its petition to appoint a conservator pursuant to the Abandoned and
Blighted Property Conservatorship Act (Act 135). Id. at 475-76. There, the
trial court held a hearing on the Act 135 petition, which involved the
presentation of five witnesses and the introduction of exhibits into evidence.
Id. at 474-75, 477. The day after the hearing, the trial court denied the Act
135 petition. Id. at 475. The petitioner did not file a post-trial motion, but
did file a timely notice of appeal. Id.
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On appeal, the G & G Court sua sponte examined the issue of whether
the petitioner had properly preserved its issues for review. Id. at 476. We
held that the plain language of Rule 227.1 was silent concerning the necessity
to file a post-trial motion following an Act 135 hearing. Id. at 477. This Court
then concluded that because the hearing involved witness testimony and
admission of exhibits, “case law makes clear, and practicing attorneys would
reasonably expect,” that a post-trial motion was necessary under Rule 227.1.
Id. The G & G Court held that the petitioner waived its issues due to its failure
to file a post-trial motion. Id. at 477-78. The G & G Court, however,
nonetheless addressed the issues on the merits and held that the petitioner
was not entitled to relief. Id. at 478.
In Wolk v. Sch. Dist. of Lower Merion, 197 A.3d 730 (Pa. 2018), our
Supreme Court held that for non-jury matters, courts should focus “on the
stage of the proceedings rather than whether a trial-like proceeding may have
been conducted.” Wolk, 197 A.3d at 739 (footnote omitted). The Wolk Court
noted that a “decision that disposes of all claims for relief” in a non-jury trial
would trigger a post-trial motion. Id. at 740.
The relevant framework of the Rules of Civil Procedure is readily
applied to routine cases. More complex cases nonetheless pose
some challenges in the rules’ application, such as where claims
are tried and/or considered in a divided fashion prior to any
judgment. . . . And both litigants and the courts can aid in
clarifying matters by expressly and candidly gauging their actions
according to the rules’ prescriptions. In this regard, to the degree
that contested factual matters relevant to the determination of
substantive claims must be adjudicated, there should ordinarily
be a trial denominated and noticed as such.
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Id. (emphasis added and footnote omitted).
Our Supreme Court stated as follows:
We do recognize, however, that circumstances will arise in which
the need for an actual trial is obviated after a hearing or hearings
that may have been initially designed to address exigencies. In
such instances, when a common pleas court enters an order or
opinion in a non-jury case that disposes of the last remaining
claims, it should specify that the hearing(s) are then
deemed to serve as the trial, explain that the present order
incorporates the aspects of prior determinations that are material
to the outcome, and clarify that post-trial motions are
accordingly due. Where there remain ambiguities that are not
addressed by such an opinion or order, the Civil Procedural Rules
themselves, or “clear decisional law,” the rules are not to be
applied to the detriment of the litigants’ substantive rights and
entitlements, including the right to appeal.
Id. at 740-41 (citation and footnote omitted and emphases added).
In the instant case, although Appellant’s counsel did not appear for the
hearing, the trial court heard testimony and received evidence resolving
“contested factual matters relevant to the determination of substantive
claims” as in Wolk. See id. at 740; G & G, 183 A.3d at 477 (stating
proceeding involving witness testimony and admission of evidence required
post-trial motion). Specifically, the trial court heard from Mr. Hessling, the
comptroller/treasurer of Linde Corporation, and resolved the valuation of the
assets seized at the last execution. See N.T. at 5, 7-21.
Neither the parties nor the trial court, however, “denominated and
noticed” the March 28, 2019 hearing as a trial. See Order, 3/21/19; Wolk,
197 A.3d at 740-41. Indeed, when the trial court issued its March 28, 2019
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order, the order did not “specify that the hearing[] [should be] deemed to
serve as the trial” and “clarify that post-trial motions [were] accordingly due.”
See Wolk, 197 A.3d at 740-41; see also Order, 3/28/19.12 We acknowledge
that the trial court resolved a contested factual matter. But the trial court’s
failure to notify the parties that the hearing would be a trial gave the
impression that the parties did not have to file a post-trial motion. See Wolk,
197 A.3d at 740-41; G & G, 183 A.3d at 477.
Third, we examine whether “practicing attorneys would reasonable
expect a post-trial motion to be necessary.” See id. The G & G Court held
that “[c]ase law requires a post-trial motion following a proceeding, where the
court heard new testimony and received new evidence, which the court relied
upon when it issued its decision.” Id. The Newman Court framed the inquiry
as whether existing case law “reasonably conveyed to practicing attorneys”
that filing a post-trial motion was required for a proceeding following remand
from an appellate court. Newman, 52 A.3d at 1250.
The parties have not cited any case law holding “a post-trial motion is
necessary” following a hearing resolving the amount of a confessed judgment.
See G & G, 183 A.3d at 477. We acknowledge that parties have filed a post-
trial motion following a hearing on a petition to stay execution on a confessed
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12 Appellee, however, “candidly” suggested that Appellant’s motion for
clarification and/or reconsideration be construed as a post-trial motion. See
Appellee’s Brief at 18; Wolk, 197 A.3d at 740.
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judgment, but we have not specifically addressed the issue. See, e.g.,
Higgins v. Pavidis, 839 A.2d 445, 446 (Pa. Super. 2003) (reciting procedural
history that the appellant filed a post-trial motion following grant of the
appellee’s petition to stay execution on a confessed judgment). Even if a post-
trial motion was required, as we noted above, the trial court failed to notify
the parties that the hearing would be considered a trial and that post-trial
motions were due. See Wolk, 197 A.3d at 740-41. After considering all three
of the above factors, and giving deference to the Wolk Court’s admonition
that the “rules are not to be applied to the detriment of the litigants’” right to
appeal, Appellee has not established that Appellant was required to file a post-
trial motion under the circumstances of this case. Id. at 741.
Having concluded that Appellant was not required to file a post-trial
motion, we summarize Appellant’s argument in support of her second issue.13
Appellant argues that the trial court erred in denying her petition to quash the
writ of execution because the trial court lacked jurisdiction over the
proceedings. In her view, because the parties’ “Settlement Agreement
vitiated the pending controversy and divested the Trial Court of jurisdiction
over the dispute,” the trial court was prevented “from ruling on moot issues.”
Appellant’s Brief at 6-7 (emphasis added and citing In re D.A., 801 A.2d 614,
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13We note that even the G & G Court addressed the merits after finding the
appellant in that case had waived the issues by failing to file a post-trial
motion.
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615 (Pa. Super. 2002)). Appellant contends that “[o]nce parties have entered
a settlement agreement resolving a controversy before a trial court, the court
lacks jurisdiction to rule on the matter.” Id. at 8.
More specifically, Appellant avers that
the parties negotiated and arrived at a settlement agreement. (R.
78a). The parties did not seek – nor was the trial court required -
to approve or enforce the terms of the settlement agreement.
Obtaining a continuance of the March 28 hearing was not a pre-
condition necessary for the settlement agreement to become
effective. The parties, moreover, fully apprised the trial court in
advance of the hearing that the matter had been resolved.
Id. at 9 (some capitalization omitted). In Appellant’s view, “[t]he sole matter
before the [trial] court on March 28, 2019 was therefore the joint motion [for
continuance]. In ruling upon the joint motion, the trial court was restricted to
two choices: (1) granting the motion, or (2) denying the motion and
dismissing the action without prejudice.” Id. (some capitalization omitted).
Appellant concludes:
Execution of the settlement agreement completely divested the
trial court of jurisdiction over the matter and vitiated its authority
to enter an order with any practical legal force or effect. By
flagrantly ignoring the parties’ resolution of which the trial court
was fully aware, proceeding with the hearing, allowing
participat[ion] in the hearing despite having committed to a
settlement, and then purporting to deny [Appellant’s] petition, the
trial court acted in clear contravention of Pennsylvania law. In so
doing, the trial court committed reversible error of law and abused
its discretion.
Id. at 10 (citations, footnote, and some capitalization omitted).
On appeal, Appellee denies that it had entered into a settlement
agreement with Appellant prior to the March 28, 2019 hearing. Appellee’s
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Brief at 16, 18, 22-23. Appellee argues that even if it had entered into a
settlement agreement with Appellant, the agreement would not be binding
unless it was reduced to writing. Id. at 21-22.14
The trial court’s Rule 1925(a) opinion did not address this issue.
Whether a case is moot presents a “pure question[] of law,” and
therefore, the standard of review is de novo. Commonwealth v. Dixon, 907
A.2d 468, 472 (Pa. 2006). “Generally, an actual claim or controversy must
be present at all stages of the judicial process for the case to be actionable or
reviewable. If events occur to eliminate the claim or controversy at any stage
in the process, the case becomes moot.” J.S. v. Whetzel, 860 A.2d 1112,
1118 (Pa. Super. 2004) (citation omitted and formatting altered). Framed
differently, “an issue before a court is moot if the court is unable to enter an
order that has any legal force or effect.” Am. Express Bank, FSB v. Martin,
200 A.3d 87, 91 (Pa. Super. 2018) (citation omitted).
Pennsylvania Rule of Civil Procedure 229(a) states, “A discontinuance
shall be the exclusive method of voluntary termination of an action, in whole
or in part, by the plaintiff before commencement of the trial.” Pa.R.C.P.
229(a). Rule 229.1(c) provides as follows:
(c) If a plaintiff and a defendant have entered into an agreement
of settlement, the defendant shall deliver the settlement funds to
____________________________________________
14We note that Appellee quoted from Ungate v. Passalacqua, 613 A.2d 6(Pa. Super. 1992). Appellee’s Brief at 22. Appellee overlooked that its
quotation was from the dissent.
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the attorney for the plaintiff, or to the plaintiff if unrepresented,
within twenty calendar days from receipt of an executed release.
Note: . . .
Upon receipt of the settlement funds, the plaintiff shall file a
discontinuance or deliver a discontinuance to the defendant.
Pa.R.C.P. 229.1(c). “Plaintiff” is defined as “a party who, by execution of a
release pursuant to an agreement of settlement, has agreed to forego a claim
of liability against a defendant.” Pa.R.C.P. 229.1(a). “‘Defendant’ means a
party released from a claim of liability pursuant to an agreement of
settlement[.]” Id.In Motley Crew, LLC v. Bonner Chevrolet Co., 93 A.3d 474 (Pa.
Super. 2014), this Court explained the effect of a discontinuance:
The general effect of a discontinuance is to terminate the action
without an adjudication of the merits and to place the plaintiff in
the same position as if the action had never been instituted.
Hence, when an action is discontinued, there no longer is an action
pending before the trial court. It is self-evident that if there is no
action pending before a court, there is no matter over which a
court can or may exert jurisdiction. The fact that a discontinuance
operates to nullify an action as if it was never initiated is further
supported by Pa.R.C.P.No. 231(a) . . . .
Motley Crew, 93 A.3d at 476 (citations omitted); accord Camp Horne Self
Storage LLC v. Lawyers Title Ins. Corp., 150 A.3d 999, 1001 (Pa. Super.
2016); see generally Cameron v. Great Atl. & Pac. Tea Co., 266 A.2d
715, 717-18 (Pa. 1970) (holding that because “none of the parties filed
praecipes to settle, discontinue and end with prejudice,” “the suit was still
pending and the court did not lose jurisdiction over the cause of action.”).
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Instantly, we need not address whether the parties entered into a
settlement agreement because a review of the certified record and trial court
docket indicates Appellee did not file a praecipe to discontinue the action. See
Pa.R.C.P. 229(a), 229.1(c). Because Appellee did not file a praecipe to
discontinue, the action remained pending before the trial court. See Motley
Crew, 93 A.3d at 476; see generally Cameron, 266 A.2d at 717-18.
Because the action remained pending, the trial court continued to “exert
jurisdiction,” could adjudicate the case or controversy, and could enter orders
that have full legal force or effect. See Martin, 200 A.3d at 91; Motley Crew,
93 A.3d at 476; Whetzel, 860 A.2d at 1118. Therefore, we agree with
Appellee that the trial court did not err by entering the order at issue. See
Dixon, 907 A.2d at 472. For these reasons, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/09/2020
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