Vautar, R. v. First National v. Sakmar, M.

J. A01011/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RICHARD VAUTAR, AS ATTORNEY-IN- : IN THE SUPERIOR COURT OF
FACT FOR BERTHA VAUTAR : PENNSYLVANIA
:
v. :
:
FIRST NATIONAL BANK OF :
PENNSYLVANIA :
:
v. :
:
THE ESTATE OF FRANCES SAKMAR, :
AND MICHAEL SAKMAR AND EDWARD :
SAKMAR, CO-EXECUTORS OF THE :
ESTATE OF FRANCES SAKMAR :
:
v. :
:
MICHAEL SAKMAR, EDWARD SAKMAR, :
AND EILEEN ATWOOD, INDIVIDUALLY, : No. 161 WDA 2014
:
Appellants :
Appeal from the Judgment Entered December 30, 2013
in the Court of Common Pleas of Cambria County
Civil Division at No. 2009-01615
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.
DISSENTING MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED FEBRUARY 27, 2015
The majority quashes the instant appeal due to the failure of the
appellants, the Sakmar heirs, to file post-trial motions. I do not believe that
post-trial motions were appropriate under the unique circumstances of this
case; therefore, I am compelled to respectfully dissent.
J. A01011/15
The trial court’s September 5, 2013 verdict found only the Estate
liable; it did not mention the Bank’s claim for unjust enrichment and creation
of a constructive trust against the Sakmar heirs. The trial court found only
that Frances Sakmar, decedent, had breached her contract of indemnity with
the Bank. The Bank filed post-trial motions, arguing that the Sakmar heirs
were unjustly enriched by their receipt of the Vautar certificate of deposit
proceeds, and demanding a constructive trust. Following oral argument and
consideration of the parties’ briefs, on December 16, 2013, the trial court
found in favor of the Bank on its unjust enrichment claim against the
Sakmar heirs. The trial court determined that the Sakmar heirs were
unjustly enriched by their receipt of the total proceeds of the CDs when they
were only entitled to one-half of the proceeds. The trial court stated that it
would consider imposition of a constructive trust if it became necessary to
collect the verdict.
Appellants filed a timely notice of appeal on January 15, 2014, without
filing post-trial motions following the trial court’s amended/supplemental
verdict. I find the following cases, while not directly on point, to be
instructive. In Lenhart v. Travelers Ins. Co., 596 A.2d 162 (Pa.Super.
1991), appeal denied, 607 A.2d 255 (Pa. 1992), Travelers filed an appeal
from an arbitration award, arguing that the injured plaintiff was not eligible
to recover because she was injured while an occupant of a vehicle owned by
a self-insured. The matter was submitted on briefs and the record from the
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arbitration proceedings. Id. at 163. The trial court determined that the
plaintiff was ineligible to recover from the Assigned Claims Plan, and the
plaintiff appealed. Id. On appeal, Travelers argued all issues were waived
for failure to file post-trial motions. This court disagreed, finding that the
trial court’s decision, which did not consider any new evidence, was not a
“trial” within the meaning of Rule 227.1:
As indicated above, the trial court’s decision was
made by considering the record, consisting of the
arbitration transcript and various exhibits, and briefs
filed by the parties. No evidence or findings of fact
were introduced or presented. The note to
Pa.R.C.P. 227.1(c) provides in pertinent part, “A
motion for post-trial relief may not be filed to orders
disposing of preliminary objections, motions for
judgment on the pleadings or for summary
judgment, motions relating to discovery or other
proceedings which do not constitute a trial.”
(Emphasis added). Since the decision by the trial
court was based solely on its consideration of the
record, without the introduction of any evidence, it
clearly is an order either disposing of what in effect
were cross-motions for summary judgment or at the
very least, an order entered in a proceeding that did
not constitute a trial. Consequently, post-trial
motions actually were prohibited under
Pa.R.C.P. 227.1.
Id. at 164.
Subsequently, in Newman Development Group of Pottstown, LLC
v. Genuardi’s Family Markets, Inc., 52 A.3d 1233 (Pa. 2012), our
supreme court addressed the question of whether a party must file post-trial
motions where, on remand from this court, the trial court recalculated
damages without receiving any additional evidence from the parties. The
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court in Newman determined that the remand proceedings in that case,
where the trial court merely reached a different damage calculation based on
facts and contract terms already in the record, was not a “trial” and
Rule 227.1 did not apply: “A remand proceeding such as the one here, that
relies on an existing record, is not a trial -- even if the trial court draws
different conclusions from that record to comport with an appellate court’s
directive.” Id. at 1251. See also Agostinelli v. Edwards, 98 A.3d 695
(Pa.Super. 2014) (post-trial motions were not required to preserve issues for
appeal where the trial court held an evidentiary hearing on remand and
relied heavily on an existing record to make new findings of fact and
conclusions of law).
The Newman court was also concerned with the fairness of finding
waiver where the rule is unclear.
Obviously, if an appellate court remands for a new
trial, the civil trial rules apply again, and in full force.
But, the circumstance here -- not an uncommon
scenario -- involves a gray area, where there are to
be further proceedings below, but the proceedings
do not amount to a new trial.
Newman, 52 A.3d at 1246-1247.
A party or attorney reading Lenhart and [Cerniga
v. Mon Valley Speed Boat Club, 862 A.2d 1272
(Pa.Super. 2004),] could reasonably conclude that a
remand proceeding before the trial court that does
not involve taking new evidence or resolving a new
factual dispute is not a trial within the meaning of
Rule 227.1, and does not require the filing of new
post-trial motions. Such a reading is buttressed by
the Official Note’s advice that post-trial motions are
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not required in response to “other proceedings which
do not constitute a trial.”
Id. at 1250-1251.
The Newman court was clearly swayed by the argument of amicus
curiae that waiver should not be found mechanically and arbitrarily where
counsel was not put on unambiguous notice that post-trial motions were
required:
When a court finds waiver in a novel situation in
which reasonable counsel would not have known of
the requirement that gave rise to the waiver, the
salutary purposes of waiver are not served at all. In
such a circumstance, there is no benefit to the
judicial process, only a trap that denies merits
review to those who, despite diligence, make a
choice an appellate court later decides was wrong.
Id. at 1244, quoting Amicus Brief of Jurists and Litigators at 6.
Here, while the trial court heard oral argument on the Bank’s post-trial
motions and the parties filed briefs, the trial court’s amended/supplemental
verdict was decided on the existing record. The trial court did not take new
evidence or make new factual findings. The trial court’s
amended/supplemental verdict was not the result of a “new trial.” The
language of Rule 227.1 is clear that it only applies to trials, not to other
proceedings. The Bank has not cited any authority for the proposition that
an order disposing of post-trial motions requires further post-trial motions in
order to preserve the same issues for appeal.
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In the case sub judice, the issues raised by appellants on appeal are
the same ones argued by the parties on post-trial motions; i.e., whether the
Sakmar heirs can be found liable on a theory of unjust enrichment. The
underlying purpose of the rule, to allow the trial court an opportunity to
correct errors, has been satisfied. There would be no reason for the Sakmar
heirs to file further post-trial motions where the issues have already been
thoroughly addressed and are ripe for appeal. At a minimum, this involves a
“gray area,” where the harsh sanction of waiver should not apply.
Therefore, I believe the Bank’s motion to quash should be denied and
the case decided on its merits.
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