Schaefer, J. v. Farley, M.

J-S70029-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
JEANNINE H. SCHAEFER, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARK FARLEY, M.J. FARLEY :
DEVELOPMENT CO., INC. AND :
FARLEY HOMES, :
:
Appellants : No. 1083 EDA 2015
Appeal from the Order March 10, 2015,
Court of Common Pleas, Chester County,
Civil Division at No. 12-09569
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 11, 2015
Mark Farley, M.J. Farley Development Co., Inc. and Farley Homes
(collectively, “the Farley Parties”) appeal from the March 10, 2015 order
entered by the Chester County Court of Common Pleas granting the motion
to enforce the settlement agreement between the Farley Parties and
Jeannine H. Schaefer (“Schaefer”). We affirm.
The trial court provided the following summary of the factual and
procedural background of this case:
In 2003, [] Schaefer entered into an agreement
with [the Farley Parties] to sell [] real property to
[the Farley Parties]. The agreed purchase price was
$1,462,500.00. [The Farley Parties], who intended
to develop the property, [were] responsible for
securing all necessary approvals, permits, etc. in
order to obtain governmental approvals.
*Retired Senior Judge assigned to the Superior Court.
J-S70029-15
As the years passed, [the Farley Parties] failed to
act in furtherance of the agreement of sale.
Specifically, [the Farley Parties] failed to proceed and
obtain the required approvals from the Zoning
Hearing Board and other Township authorities.
In September[] 2012, Schaefer filed the instant
action seeking to spur [the Farley Parties] into
moving forward. From 2003 through the time of
suit, Schaefer had continued to pay real estate taxes
and upkeep costs on the property.
In or about this time period, Schaefer had
received an offer to purchase the property from a
bona fide third-party purchaser for $1,362,500.00.
[The Farley Parties] then filed a lis pendens in
Chester County Office for the Recorder of Deeds.
Thus, because of the agreement of sale in place, and
a lis pendens attached to the property by [the Farley
Parties], Schaefer was prevented from accepting that
offer.
The instant matter proceeded to its scheduled
[a]rbitration on March 5, 2014. At that time, the
parties entered into a settlement agreement to
resolve the underlying litigation. Pursuant to the
terms of the agreement, the settlement on the
property was to take place no later than December
31, 2014. [The Farley Parties were], once again,
tasked with securing the necessary approvals. The
settlement did not take place on December 31,
2014.
Trial Court Opinion, 7/15/15, at 1-2.
On February 10, 2015, Schaefer filed a motion before the trial court to
enforce the settlement agreement and to recover attorneys’ fees based upon
the Farley Parties’ failure to comply with the settlement agreement.
According to Schaefer, the Farley Parties’ “dilatory behavior has caused
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[Schafer] to incur unnecessary counsel fees in order to enforce the
[settlement agreement, including] requir[ing] counsel to conduct further
research, prepare and file [this motion] and several exhibits, as well as other
related matters.” Motion to Enforce Settlement, 2/10/15, ¶ IV. The trial
court granted the motion on March 10, 2015 and “further ordered that
attorneys [sic] fees incurred in enforcing the settlement are awarded upon
presentation of a fee petition.” Trial Court Order, 3/10/15. The Farley
Parties filed a motion for reconsideration on March 25, 2015. Therein, the
Farley Parties raised a defense of impossibility of performance because “at
this time[,] parcel numbers have not been issued,” which the Farley Parties
stated would have been raised at the “administrative conference” that was
to occur but was never scheduled. Motion for Reconsideration, 3/25/15, ¶¶
6-10. The Farley Parties further averred that Schaefer’s motion failed to
conform to Rule 208.2 of the Pennsylvania Rules of Civil Procedure, “which
requires a motion to be divided into paragraphs numbered consecutively,” as
Schaefer’s motion was in a narrative form. Id. ¶ 22. The Farley Parties
appended to the motion for reconsideration preliminary objections that were
sent for filing, but for reasons unknown, were never docketed, which
likewise raised a violation of Rule 208.2.
The trial court denied the Farley Parties’ motion for reconsideration on
April 7, 2015. The Farley Parties filed a timely notice of appeal on April 8,
2015, and complied with the trial court’s order for the filing of a concise
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statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure.
On appeal, the Farley Parties raise one issue for our review: “Whether
the trial court erred in law by granting [Schaefer]’s [m]otion to [e]nforce
[s]ettlement and awarding attorney’s fees.” The Farley Parties’ Brief at 4.
Although phrased as a single issue in the statement of questions involved,
the Farley Parties present three separate issues in the argument section of
their brief on appeal. Compare id. at 4 with id. at 11-16.
For their first issue on appeal, the Farley Parties argue that the trial
court erred by granting Schaefer’s motion to enforce the settlement
agreement because Schaefer failed to file a praecipe for determination
pursuant to Chester County Rule of Civil Procedure (“C.C.R.C.P.”) 206.6.
The Farley Parties’ Brief at 11. The Farley Parties contend that in order for a
party to bring a matter to the trial court for resolution, C.C.R.C.P. 206.6
requires that party to file a praecipe for determination. Id. The Farley
Parties assert that Schaefer’s failure to file a praecipe for determination with
her motion to enforce settlement precluded that motion from being ripe for
resolution by the trial court. Id.
We conclude that the Farley Parties have waived their first issue on
appeal. “It is well settled that issues not raised below cannot be advanced
for the first time in a Rule 1925(b) statement or on appeal.” Irwin Union
Nat’l Bank & Trust Co. v. Famous, 4 A.3d 1099, 1104 (Pa. Super. 2010);
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see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). The Farley Parties raise
their first issue for the first time in their Rule 1925(b) statement and did not
raise it at any time before the trial court. Accordingly, the Farley Parties
have waived their first issue on appeal.
For their second issue on appeal, the Farley Parties argue that the trial
court erred by granting Schaefer’s motion to enforce the settlement
agreement because the motion was not divided into consecutively numbered
paragraphs as required by Rule 208.2 of the Pennsylvania Rules of Civil
Procedure. The Farley Parties’ Brief at 11-13. The Farley Parties contend
that Schaefer’s failure to comply with Rule 208.2 inhibited their ability to
respond to Schaefer’s motion to enforce the settlement agreement because
their “response would be disconnect[ed] and not in accordance with the
Pennsylvania Rules of Civil Procedure.” Id. at 12.
“Interpretation and application of Pennsylvania Rules of Civil Procedure
present a question of law.” Krepps v. Snyder, 112 A.3d 1246, 1251 (Pa.
Super. 2015). Accordingly, our scope of review is plenary and our standard
of review is de novo. Id.; Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013)
Rule 208.2 of the Pennsylvania Rules of Civil Procedure states, in pertinent
part, as follows:
(a) A motion shall
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(1) contain a caption setting forth the name of the
court, the number of the action, the name of the
motion, and the name of the moving party,
(2) be divided into paragraphs numbered
consecutively,
(3) set forth material facts constituting grounds for
the relief sought, specify the relief sought and
include a proposed order,
(4) include a certificate of service which sets forth
the manner of service including the name of an
attorney of record for each party that is represented
by counsel, the party whom the attorney represents,
a “pro se” designation for each party that is
unrepresented, and the address at which service was
made, and
(5) be signed and endorsed.
Pa.R.C.P. 208.2(a) (emphasis added).
Rule 126 further provides that
[t]he rules shall be liberally construed to secure the
just, speedy and inexpensive determination of every
action or proceeding to which they are applicable.
The court at every stage of any such action or
proceeding may disregard any error or defect of
procedure which does not affect the substantial
rights of the parties.
Pa.R.C.P. 126. In Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113
A.3d 1261 (Pa. Super. 2015), our Court provided the following explanation
of Rule 126:
Under the doctrine of substantial compliance, the
trial court may “overlook any procedural defect that
does not prejudice a party’s rights.” Womer v.
Hilliker, 908 A.2d 269, 276 (Pa. 2006) [].
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“[P]rocedural rules are not ends in themselves, and
… rigid application of [the Rules] does not always
serve the interest of fairness and justice.” Id.* * *
Rule 126 allows an equitable exception for parties
“who commit a misstep when attempting to do what
any particular rule requires.” [Id.] Rule 126 does
not excuse a party’s complete noncompliance with
the rules, but Rule 126 “is available to a party who
makes a substantial attempt to conform.” Id. at []
278 (holding there was no compliance, where party
failed to take any steps to conform with Rule 1042.3
for filing certificate of merit); Pomerantz v.
Goldstein, [] 387 A.2d 1280, 1281 ([Pa.] 1978)
(holding appellant substantially complied with Rule
1038(d) for filing exceptions, although pleading was
erroneously titled motion for new trial, and appellee
suffered no prejudice when trial court considered
appellant’s pleading).
Id. at 1272-73.
We conclude that the trial court did not err by granting the motion to
enforce the settlement agreement despite Schaefer’s failure to fully comply
with Rule 208.2(a). First, the certified record reflects that Schaefer
substantially complied with Rule 208.2(a). Schaefer’s motion to enforce the
settlement agreement contains a caption setting forth the name of the court,
the number of the action, the name of the motion, and the name of the
moving party. See Motion to Enforce Settlement, 2/10/15, at 1; Pa.R.C.P.
208.2(a)(1). The motion also details the material facts constituting the
grounds for the relief sought and specifies the relief sought. See Motion to
Enforce Settlement, 2/10/15, at 1-3; Pa.R.C.P. 208.2(a)(3). The motion
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includes a certificate of service that sets forth the manner of service, which
provides the name of an attorney of record for each party that is
represented by counsel, the party whom the attorney represents, and the
address at which service was made. See Motion to Enforce Settlement,
2/10/15; Pa.R.C.P. 208.2(a)(4). Finally, the motion is signed and endorsed.
See Motion to Enforce Settlement, 2/10/15, at 6; Pa.R.C.P. 208.2(a)(5).
Second, upon reviewing Schaefer’s motion to enforce the settlement
agreement, we fail to see how the non-compliant motion prevented the
Farley Parties from responding or how it prejudiced them in any manner.
The motion provided the Farley Parties with the information necessary to
formulate a response. The motion clearly and unambiguously states that
Schaefer was seeking to enforce the settlement agreement as well as
attorney’s fees, and the basis for the relief requested. Therefore, the Farley
Parties’ allegation that Schaefer’s failure to fully comply with Rule 208.2
prevented them from responding in any fashion represents little more than a
bald and unsupported allegation of prejudice. Accordingly, the Farley
Parties’ second issue does not entitle them to relief.
For their third issue on appeal, the Farley Parties argue that the trial
court erred by awarding Schaefer attorney’s fees upon the presentation of a
fee petition. The Farley Parties’ Brief at 13-16. The Farley Parties contend
that there is no provision in the settlement agreement that provides for
attorney’s fees and regardless, they assert that they complied with the
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terms of the settlement agreement. Id. at 13-14. Additionally, the Farley
Parties claim that the trial court erred in awarding attorney’s fees because
the trial court did not make a specific finding of objectionable conduct as it
was required to do under Pennsylvania law. Id. at 15. Furthermore, the
Farley Parties argue that a court cannot award attorney’s fees for conduct
that occurred prior to the pendency of a matter. Id. at 16.
We conclude that the Farley Parties have waived their third issue on
appeal. Like their first issue, the Farley Parties failed to raise this claim of
error before the trial court and raised the issue for the first time in their Rule
1925(b) statement. Accordingly, we conclude that the Farley Parties’ third
issue is waived. See Famous, 4 A.3d at 1104; see also Pa.R.A.P. 302(a).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
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