Xian, F. v. Hung, O.

J-A21013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FAN XIAN, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OI YEE HUNG AND CHING K. WONG,
Appellants No. 2510 EDA 2015
Appeal from the Judgment Entered October 26, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term 2013, No. 2207
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2016
Appellants, Oi Yee Hung and Ching K. Wong, appeal from the
judgment entered on October 26, 2015,1 after the trial court’s denial of
Appellants’ motion for post-trial relief, in which they requested that the court
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1
Appellants purport to appeal from the July 10, 2015 order denying their
post-trial motion. However, “[a]n appeal from the denial of post-trial
motions is interlocutory and not a final appealable order.” Sagamore
Estates Property Owners Ass’n v. Sklar, 81 A.3d 981, 983 n.3 (Pa.
Super. 2013) (citation omitted). “An appeal to this Court can only lie from
judgments entered subsequent to the trial court’s disposition of post-verdict
motions….” Vance v. 46 and 2, Inc., 920 A.2d 202, 205 n.2 (Pa. Super.
2007) (citation omitted). Accordingly, we directed Appellants, by per curiam
order dated October 15, 2015, to praecipe the trial court prothonotary to
enter judgment, and to file with the prothonotary of the Superior Court
within ten days a certified copy of the trial court docket reflecting the entry
of the judgment. The record reflects that Appellants have timely complied,
and judgment was entered on October 26, 2015.
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vacate its findings in favor of Appellee, Fan Xian. After careful review, we
affirm.
The relevant facts and procedural history of this case were
summarized by the trial court in the following portion of its Pa.R.A.P.
1925(a) opinion:
On December 17, 2013, [Appellee] commenced the instant
action against [Appellants] by writ of summons. On January 21,
2014, [Appellee] filed his complaint against [Appellants]
asserting counts for breach of contract; fraud; conversion;
interference with a contractual relationship; and unjust
enrichment. Therein, [Appellee] averred that on or about
December 10, 2012, he and [Appellants] “entered into a
commercial lease/purchase agreement in reference to the real
property known as 1701-1717 North 2nd Street, Philadelphia, PA
19122 (the “Lease Purchase Agreement”).” “Under Paragraph
36 of the Lease Purchase Agreement,” [Appellee] asserted he
“was granted an option to purchase the property and
[Appellants] agreed to automatically accept his request to
purchase the property pursuant to the terms stipulated under
Paragraph 36 of the Lease Purchase Agreement.”
In terms of exercising the option, [Appellee] asserted he
exercised the option on or about August 6, 2013, which was
acknowledged and accepted by [Appellants’] counsel on August
27, 2013, but thereafter [Appellants] failed to cooperate in good
faith to consummate the transaction. Rather, [Appellee]
asserted on January 13, 2014, [Appellants] “wrongfully
terminated the Lease Purchase Agreement by asserting that
[Appellee] had not paid rent in December and January when in
fact [Appellee] did pay the rent in December and the January
rent was not yet due….”
…
[Appellee] attached a copy of the lease agreement to [his]
complaint. The lease, dated December 12, 2012, provided that
one year after the commencement of the lease, monthly
installments of rent were due “on the fifteenth (15th) day of each
month.” The lease also provided at Paragraph 36, titled
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“OPTION TO PURCHASE,” that [Appellee]: “shall have a first
right option to purchase the property from [Appellants] during
this lease. [Appellants] shall automatically accept the requested
option to agree to the sale pursuant to the terms below and shall
not have any basis for refusing the request from [Appellee].
On December 10, 2014, [Appellants] filed an answer to the
complaint along with new matter and counterclaim. The first
page of this filing contained a notice to defend rather than a
notice to plead.
…
[Appellee] did not file a reply to [Appellants’] new matter
and counterclaim, and on June 10[,] 2015, the case proceeded
to [a] bench trial before this court. At the trial, but prior to
testimony being presented, [Appellants] raised for the first time
the issue of [Appellee’s] failing to file a reply to [their] new
matter and counterclaim, and suggested all of the allegations
therein should be deemed admitted. The trial proceeded and
[Appellants] … again raised the issue in closings. At that time,
defense counsel argued [Appellants] were not seeking a default
judgment, but that every allegation in the new matter and
counterclaim be deemed admitted. [Appellants] argued based
on those admissions a judgment in their favor for possession of
the property, for termination of the lease, and for rent and legal
fees, and [that] a judgment in their favor for all of [Appellee’s]
claims should be entered.
Following the conclusion of the trial, this court issued
findings of fact and conclusions of law from the bench, which
were filed of record with the prothonotary on June 11, 2015.
This court found the testimony of the attorney who represented
[Appellee] in exercising the option very credible. This court
found that the lease was unambiguous, and the option was
clearly exercised, but [Appellants] failed to act in good faith to
carry out that transaction. The court ordered [Appellants] [to]
sell the property to [Appellee] for $800,000 per the terms of
their agreement. The court also ordered [Appellee], who was
still occupying the property, [to] pay [Appellants] rent of $500
per month for April 2014 to the time of trial, at a total of $6,550.
Trial Court Opinion (TCO), 11/6/15, at 1-5 (citations to the record and some
internal brackets omitted).
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On June 18, 2015, Appellants filed a timely motion for post-trial relief,
in which they requested that the trial court vacate its findings in favor of
Appellee. Appellants further sought relief in their favor in the amount of
$6,500 for back rent, $12,500 in legal fees, and sought possession of the
subject real property. After hearing oral argument on the motion, the trial
court denied Appellants’ request for relief.
On August 6, 2015, Appellants filed a notice of appeal, followed by a
timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.2 Appellants now present the following two issues
for our review:
1. Did the trial court incorrectly den[y] Appellants’ request that
all of Appellants’ averments in the counterclaim and new
matter be admitted as a result of Appellee’s failure to respond
to the pleadings, irrespective of whether a notice to defend or
notice to plead was attached to Appellants’ answer with
counterclaim and new matter?
2. Did the trial court incorrectly deny Appellants’ motion to
dismiss Appellee’s complaint as a result of Appellee’s failure
to respond to Appellee’s new matter and counterclaim, thus,
allowing Appellee opportunities to defend against allegations
of breach of a commercial lease agreement and possession of
the real estate in question?
Appellants’ Brief at 6 (unnecessary capitalization omitted).
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2
We recognize that Appellants set forth seven issues within their Rule
1925(b) statement; however, the trial court found that all of Appellants’
claims were waived except for the two issues raised herein. TCO at 9.
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Initially, we are constrained to find that Appellants’ claims are waived
due to their failure to ensure that the transcript from the July 9, 2015
hearing on their post-trial motion for relief (hereinafter “July 9, 2015 hearing
transcript”) was included in the record. “This Court cannot meaningfully
review claims raised on appeal unless we are provided with a full and
complete certified record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.
Super. 2006).3 Moreover, the law is unequivocal that it is Appellants’
responsibility to ensure that the certified record is complete in the sense that
it contains all of the necessary materials for this Court to perform its duty.
Id. Appellants have a duty under Pa.R.A.P. 1911, to order and pay for any
transcript necessary to permit the resolution of the issues raised on appeal.
Pa.R.A.P. 1911(a); see also Commonwealth v. Williams, 715 A.2d 1101,
1105 (Pa. Super. 1998) (stating “Rule 1911 requires appellants to order all
transcripts necessary for their appeals”).
In the instant case, the certified record contains only the June 10,
2015 trial transcript. However, the July 9, 2015 hearing transcript is
essential for our meaningful review of Appellants’ claims, as the crux of the
issues on appeal centers on Appellee’s failure to respond to the averments in
Appellants’ new matter and counterclaim and the consequences thereof.
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3
“The certified record consists of the ‘original papers and exhibits filed in the
lower court, the transcript of proceedings, if any, and a certified copy of the
docket entries prepared by the clerk of the lower court.’” Preston, 904 A.2d
at 7.
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The trial court expressly ordered the parties to be prepared to address these
very issues at the July 9, 2015 argument on Appellants’ post-trial motion for
relief. Hence, we are unable to adequately resolve this matter without
reviewing the transcript from that hearing.
The issue of the missing transcript was raised at the oral argument
before this Court on August 9, 2016. It is Appellants’ burden to ensure that
the certified record is complete; however, since that time, it appears that
they have not made any effort to supplement the record.4 In the event that
the appellant fails to conform to the rules, “[i]t is not proper for … the
Superior Court to order transcripts nor is it the responsibility of the appellate
courts to obtain the necessary transcripts.” Preston, 904 A.2d at 7(internal citations omitted). Therefore, based on the omission of the July 9,
2015 transcript, we deem Appellants’ claims waived.
Nevertheless, even if Appellants’ claims had not been waived, we
would conclude that the issues are meritless. As we have previously stated:
Our standard of review in equity matters is limited to
determining whether the trial court committed an error of law or
an abuse of discretion. The scope of review of a final decree in
equity is limited and will not be disturbed unless it is
unsupported by the evidence or demonstrably capricious.
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4
Pennsylvania Rule of Appellate Procedure 1931(d) directs the clerk of the
trial court to provide the appellant with a copy of the list of record
documents. Pa.R.A.P. 1931(d). If the appellant discovers that any
documents have been omitted from the certified record, Rule 1926 sets forth
the process to obtain a supplemental certified record to correct any
omissions. Pa.R.A.P. 1926(b)(2).
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Coldren v. Peterman, 763 A.2d 905, 907-908 (Pa. Super. 2000).
Moreover, we note that an appellate court is bound by the trial court’s
findings of fact in an appeal stemming from a non-jury trial, unless those
findings are not based on competent evidence. L.B. Foster Co. v. Charles
Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090, 1092 (Pa. Super.
2001).
It is not the role of an appellate court to pass on the credibility
of witnesses or to act as the trier of fact. 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. Nonetheless, the trial court’s conclusions of law
are not binding on an appellate court. This is so because it is
the appellate court’s duty to determine whether the trial court
correctly applied the law to the facts.
Id. at 1092-1093.
Here, Appellants assert that Appellee’s failure to reply to their new
matter and counterclaim should be deemed as an admission of the
averments set forth therein, and consequently, that Appellee’s complaint
should have been dismissed. Appellants’ Brief at 7-9. In response to
Appellants’ motion for post-trial relief in which these same issues were
raised, Appellee justified his lack of a response by noting that Appellants
improperly attached a notice to defend to their new matter and
counterclaim, rather than a proper notice to plead.5 Appellee relied on this
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5
In accordance with the Pennsylvania Rules of Civil Procedure, no
responsive pleading is required to be filed unless the preceding pleading
contains a notice to defend or a notice to plead in compliance with the forms
(Footnote Continued Next Page)
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error in denying that he was required to file a responsive pleading.
Appellee’s Reply to Appellants’ Motion for Post-Trial Relief at 1-2.
We discern that the trial court adequately addressed and disposed of
Appellants’ claims in its July 9, 2015 order, where it stated:
[E]ven in the presence “of the necessary notice to plead[,]” “the
plaintiff need only reply to factual allegations in the counterclaim
or new matter, and the plaintiff is under no obligation to respond
to legal conclusions that may have been pled by the defendant,”
and only properly pleaded facts in the new matter or
counterclaim are to be deemed admitted where the plaintiff fails
to reply to the defendant’s new matter or counterclaim. See 6
Standard Pennsylvania Practice 2d § 30.12. Moreover, when a
fact has been put at issue by the complaint and answer, there is
no need to respond to it if it is also included in new matter or
counterclaims. See Watson v. Green, 231 Pa. Super. 115, 118
[ ]
(1974). “ New matter and counterclaims properly contain
averments of facts only if they are extrinsic to facts averred in
the complaint.” Id. (emphasis added [by the trial court]).
Trial Court Order, 7/9/15, at 1. The court then went on to explain:
Here, [Appellee] alleged in his complaint that:
 19. Under Paragraph 4 of the lease, [Appellee] is
obligated to pay monthly rent to [Appellants]
commencing December 15, 2013 in the amount of
$500.00 and the fifteenth day of each month
thereafter.
 20. [Appellee] tendered the first payment of rent to
[Appellees] in accordance with the Lease Purchase
Agreement.
_______________________
(Footnote Continued)
set forth under Rules 1018.1 and 1361, respectively. Pa.R.C.P. 1026(a).
Rule 1018.1 sets forth the proper form of a notice to defend, which requires
a response to a complaint. Pa.R.C.P. 1018.1. Rule 1361 provides the
proper form of a notice to plead, which requires a response to all other
pleadings subsequent to the complaint. Pa.R.C.P. 1361.
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 21. On January 13, 2014, [Appellants] wrongfully
terminated the Lease Purchase Agreement by
asserting that [Appellee] had not paid rent in
December and January when [Appellee] did pay the
rent in December and the January rent was not yet
due.
In response, [Appellants] alleged in their answer that:
 19. It is admitted that pursuant to the commercial
lease agreement, [Appellee] is obligated to pay
monthly rent in the amount of $500.00 per month.
By way of further answer, [Appellee] had failed and
refused to do so.
 20. It is specifically denied that any lease purchase
agreement exists and strict proof to the contrary is
demanded thereof.
 21. Denied, on the contrary, [Appellants] properly
terminated the commercial lease agreement, and
therefore the option to purchase, and strict proof to
the contrary is demanded.
Arguably, by virtue of their failure to specifically deny the factual
averments in Paragraphs 20 and 21, it is [Appellants] whom
should be deemed to have admitted that [Appellee] tendered
December’s rent in accordance with the lease and that January’s
rent was not yet due when they terminated the lease. But in
any event, there was no need for [Appellee] to respond to
averments [in Appellants’ counterclaim and new matter] such as
“[i]n breach of the terms of the commercial lease agreement,
[Appellee] has failed to pay rent for the period December 10,
2013 through and including December 2014[,]” because the
matter was clearly placed into issue by the complaint and
answer. And as such, there is no basis to grant [Appellants’]
motion for post-trial relief and deny [Appellee] specific
performance.
Moreover, by the time [Appellee] had actually stopped paying
rent in this case, [Appellants] had already materially breached
the lease by their actions and inactions in terms of the option to
purchase provision, which also provided that its terms and
conditions “shall supercede [sic] any terms elsewhere in the
agreement that is in conflict with these conditions[,]” (emphasis
added [by trial court]), and by wrongfully terminating it.
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Suspending payment of rent under such circumstances did not
defeat [Appellee’s] right to specific performance and [Appellants]
were more than made whole by the award of $6,500.
Id. at 2 (internal citations and some quotation marks omitted). After careful
review, we conclude that the court’s factual determinations are well-
supported by the record, and we would discern no abuse of discretion.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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