H&H Manufacturing Co. v. Tomei, T.

J-A07011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H&H MANUFACTURING COMPANY, : IN THE SUPERIOR COURT OF
INC. AND VINCENT H. TOMEI : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1196 EDA 2018
THOMAS R. TOMEI AND JEANETTE M. :
TOMEI :
v. :
:
:
JAMES F. FLANDREAU, ESQUIRE, :
EXECUTOR AD LITEM FOR THE :
ESTATE OF MARIE L. TOMEI, :
DECEASED :
Appeal from the Judgment Entered on April 20, 2018
In the Court of Common Pleas of Delaware County Civil Division at
No(s): 2013-5775
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MAY 22, 2019
Appellants, H&H Manufacturing Company and Vincent H. Tomei, appeal
from the judgment entered on April 20, 2018.1 As is relevant to the current
____________________________________________
1 Appellants purport to appeal from the trial court’s order dated April 18, 2018,
which ruled upon the defendants’ motion for post-trial relief. See Notice of
Appeal, 4/23/18. “Orders denying post-trial motions, however, are not
appealable. Rather, it is the subsequent judgment that is the appealable order
when a trial has occurred.” Harvey v. Rouse Chamberlin, Ltd., 901 A.2d
523, 524, n.1 (Pa. Super. 2006) (internal citation omitted). Judgment was
entered on April 20, 2018. Thus, we treat the appeal as from the entry of
judgment and have amended the caption accordingly. See Pa.R.A.P.
905(a)(5).
____________________________________
* Former Justice specially assigned to the Superior Court.
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appeal, the judgment was: in favor of Defendants Thomas R. Tomei and
Jeanette M. Tomei (hereinafter, collectively, “Defendants”) and against
Appellants, on all of Appellants’ claims against Defendants; and, in favor of
Thomas Tomei and against Vincent Tomei, in the total amount of
$1,407,749.07. We affirm.
Appellants instituted the current action on June 11, 2013, by filing a writ
of summons. Within Appellants’ third amended complaint, Appellants levied
12 claims against Defendants. See Appellants’ Third Amended Complaint,
5/18/16, at 1-16. Thomas Tomei filed a responsive pleading to the complaint
that contained various counterclaims against Vincent Tomei, including
counterclaims for conversion and breach of contract. See Thomas Tomei’s
Answer, New Matter, and Counterclaim, 6/15/16, at 1-45. Jeanette Tomei
filed a separate answer to Appellants’ complaint and denied liability. See
Jeanette Tomei’s Answer and New Matter, 6/20/16, at 1-15.
The case proceeded to an eight-day bench trial and, on November 30,
2017, the trial court entered its findings of fact, conclusions of law, and
decision in the matter. Specifically, the trial court found in favor of Defendants
and against Appellants, on all of Appellants’ claims against Defendants; in
favor of Thomas Tomei and against Vincent Tomei, on Thomas Tomei’s
counterclaim for conversion, in the amount of $34,224.58; and, in favor of
Thomas Tomei and against Vincent Tomei, on Thomas Tomei’s counterclaim
for breach of contract, in an unspecified amount. Trial Court Decision,
11/30/17, at 1-3.
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There is no evidence that Appellants filed a post-trial motion in this case:
no such post-trial motion is contained in the certified record; the docket does
not reflect that Appellants filed a post-trial motion; and, the trial court’s
opinion states that, “upon a review of the docket, it appears that [Appellants’]
post-trial motion was never filed.” Trial Court Opinion, 7/10/18, at 4 (some
capitalization omitted).2 Nevertheless, on April 19, 2018, the trial court
entered an order declaring that Appellants’ post-trial motion was denied and,
on April 20, 2018, Defendants filed a praecipe for entry of judgment.
The prothonotary entered judgment in favor of Thomas Tomei and
against Vincent Tomei in the total amount of $1,407,749.07. This total
amount comprises the $34,224.58 to which Thomas Tomei was entitled on his
conversion claim and the $1,373,524.49 that Defendants averred they were
entitled to receive for attorneys’ fees and costs on their breach of contract
claim. See Defendants’ Praecipe to Enter Judgment, 4/20/18, at ¶ 20.
Appellants filed a notice of appeal from the judgment. Appellants’ Notice
of Appeal, 4/23/18, at 1. In an order dated April 30, 2018 and entered May
____________________________________________
2 The trial court and opposing counsel apparently received copies of
Appellants’ un-filed post-trial motion. We say this because the trial court
entered an order denying the post-trial motion and Defendants filed both a
response in opposition to Appellants’ post-trial motion and a “memorandum
of law in support of [a] request to strike portions of [Appellants’] post-trial
motion.” See Trial Court Order, 4/19/18, at 1; Defendants’ “Response in
Opposition to the Post Trial Motions of Vincent Tomei and Those Improperly
Brought on Behalf of H&H Manufacturing Company, Inc.,” 4/10/18, at 1-34;
“Defendants’ Memorandum of Law in Support of Their Request to Strike
Portions of [Appellants’] Post-Trial Motion,” 2/13/18, at 1-6.
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22, 2018, the trial court directed that Appellants file a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), and serve a copy of the concise statement upon the trial
court. The order reads:
AND NOW, this 30th day of April 2018, it is hereby ORDERED
AND DECREED that Plaintiffs H&H Manufacturing Company,
Inc. and Vincent H. Tomei, pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, shall file a
Concise Statement of Matters Complained of on Appeal no
later than twenty-one (21) days after entry of this Order and
serve a copy on this Court pursuant to Pa.R.A.P. 1925(b)(1).
Any issue not properly included in the Statement, timely filed
and served, shall be waived.
Trial Court Order, 5/22/18, at 1 (some emphasis omitted).
The docket states that, in accordance with Pennsylvania Rule of Civil
Procedure 236, notice of the Rule 1925(b) order was given to the parties on
May 22, 2018. See Docket Entry, at 5/22/18.
The certified record contains no Rule 1925(b) statement, the docket
does not reflect that Appellants ever filed a Rule 1925(b) statement, and the
trial court stated in its opinion that, although Appellants “sent the [trial] court
a copy of their” Rule 1925(b) statement, the Rule 1925(b) statement was
“never filed pursuant to the [trial] court’s April 30, 2018 order.” Trial Court
Opinion, 7/10/18, at 5 (some capitalization omitted).
We are constrained to conclude that Appellants’ claims on appeal are
waived, as Appellants failed to file a post-trial motion and failed to comply
with Rule 1925(b).
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First, Appellants’ claims are waived because Appellants did not file a
post-trial motion. Pennsylvania Rule of Civil Procedure 227.1 declares, in
relevant part:
(a) After trial and upon the written Motion for Post-Trial Relief
filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
relief may not be granted unless the grounds therefor,
...
(2) are specified in the motion. The motion shall state how
the grounds were asserted in pre-trial proceedings or at
trial. Grounds not specified are deemed waived unless
leave is granted upon cause shown to specify additional
grounds.
(c) Post-trial motions shall be filed within ten days after
(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 jury.
If a party has filed a timely post-trial motion, any other party
may file a post-trial motion within ten days after the filing of
the first post-trial motion.
...
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(f) The party filing a post-trial motion shall serve a copy
promptly upon every other party to the action and deliver a
copy to the trial judge.
Pa.R.C.P. 227.1.
Rule 227.1 thus requires that a party “file” a post-trial motion within ten
days after a “decision in the case of a trial without jury”– and, as the Rules of
Civil Procedure make clear, a party “files” a post-trial motion by delivering,
mailing, or electronically transmitting the legal paper to the prothonotary,
“accompanied by the filing fee, if any.” See Pa.R.C.P. 205.1-205.6.
Further, as we have explained:
The Pennsylvania Supreme Court has stated that the filing of
post-trial motions is mandatory if a litigant wishes to
preserve issues for appellate review. See L.B. Foster Co. v.
Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998) (“Pa.R.C.P.
227.1 requires parties to file post-trial motions in order to
preserve issues for appeal. If an issue has not been raised in
a post-trial motion, it is waived for appeal purposes”).
...
The importance of filing post-trial motions cannot be
overemphasized. “This is not blind [insistence] on a mere
technicality since post-trial motions serve an important
function in [the] adjudicatory process in that they afford the
trial court in the first instance the opportunity to correct
asserted trial error and also clearly and narrowly frame issues
for appellate review.” Fernandes v. Warminster Mun.
Auth., 442 A.2d 1174, 1175 (Pa. Super. 1982). Even when
a litigant files post-trial motions but fails to raise a certain
issue, that issue is deemed waived for purposes of appellate
review. See Hall v. Owens Corning Fiberglass Corp., 779
A.2d 1167, 1169 (Pa. Super. 2001) (where a claim was not
specified in the post-trial motions, the issue was not
preserved and is, therefore, waived).
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Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 428 (Pa.
Super. 2002) (footnote, corrections, and some citations omitted).
There was a bench trial in the case at bar. Therefore, in order to
preserve any claims for appellate review, Appellants were required to file their
post-trial motion within ten days after the trial court’s decision. Pa.R.C.P.
227.1(c). There is no evidence that Appellants delivered, mailed, or
electronically transmitted their post-trial motion to the prothonotary and the
certified record does not contain a post-trial motion from Appellants. See
Docket Entries from 11/30/17 - 4/19/18; see also Commonwealth v.
Brown, 161 A.3d 960, 968 (Pa. Super. 2017) (“our review is limited to those
facts which are contained in the certified record and what is not contained in
the certified record does not exist for purposes of our review”) (quotations
and citations omitted). Therefore, from our review of the record, Appellants
were required to, but did not, file a post-trial motion in this case. This results
in the mandatory wavier of all claims on appeal. Pa.R.C.P. 227.1(b)(2);
Diamond Reo Truck Co., 806 A.2d at 428-429.
Moreover, Appellants waived all appellate issues by failing to comply
with Pennsylvania Rule of Appellate Procedure 1925(b). In relevant part, Rule
1925(b) declares:
(b) Direction to file statement of errors complained of
on appeal; instructions to the appellant and the trial
court.--If the judge entering the order giving rise to the
notice of appeal (“judge”) desires clarification of the errors
complained of on appeal, the judge may enter an order
directing the appellant to file of record in the trial court and
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serve on the judge a concise statement of the errors
complained of on appeal (“Statement”).
(1) Filing and service.--Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by mail
as provided in Pa.R.A.P. 121(a) and shall be complete on
mailing if appellant obtains a United States Postal Service
Form 3817, Certificate of Mailing, or other similar United
States Postal Service form from which the date of deposit can
be verified in compliance with the requirements set forth in
Pa.R.A.P. 1112(c). Service on parties shall be concurrent with
filing and shall be by any means of service specified under
Pa.R.A.P. 121(c).
(2) Time for filing and service.--The judge shall allow the
appellant at least 21 days from the date of the order's entry
on the docket for the filing and service of the Statement. . .
.
(3) Contents of order.--The judge's order directing the filing
and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge's order within which the appellant must file and
serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the Statement
timely filed and served pursuant to subdivision (b) shall
be deemed waived.
(4) Requirements; waiver.
...
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph
(b)(4) are waived.
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Pa.R.A.P. 1925(b).
As we have explained:
In Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998),
our Supreme Court held that in order to preserve claims for
appellate review, an appellant must comply with a trial court
order to file a Statement of Matters Complained of on Appeal,
pursuant to Pa.R.A.P. 1925(b). Our Supreme Court recently
reiterated the bright-line rule established in Lord, holding
that “failure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised [on appeal].” Commonwealth v. Schofield, 888
A.2d 771, 774 (Pa. 2005); see also Commonwealth v.
Castillo, 888 A.2d 775 (Pa. 2005) (same). If an appellant
does not comply with an order to file a Rule 1925(b)
statement, all issues on appeal are waived—even if the
Rule 1925(b) statement was served on the trial judge
who subsequently addressed in an opinion the issues
raised in the Rule 1925(b) statement. Although
recognizing that such a strict application of the Rule may be
harsh, our Supreme Court stressed that failure to file the Rule
1925(b) statement “results in the inability of the appellate
courts to determine which issues were presented to the trial
court, and thus preserved for appeal, and whether the trial
court received the statement within the required time
period.” [Schofield,] 888 A.2d at 774-775.
In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007) (some citations omitted)
(emphasis added); see also Schofield, 888 A.2d at 771-775 (the
Pennsylvania Supreme Court held that the appellant’s failure to file her Rule
1925(b) statement resulted in the “automatic waiver of the issues raised” on
appeal, even though the trial court received the appellant’s Rule 1925(b)
statement and addressed the issues in an opinion); Greater Erie Indus. Dev.
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014)
(en banc) (“it is no longer within [the Superior] Court’s discretion to review
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the merits of an untimely Rule 1925(b) statement based solely on the trial
court’s decision to address the merits of those untimely raised issues”).
In the case at bar, the trial court’s concise statement order fully
complied with Rule 1925(b). It informed Appellants that they were required
to file their concise statement within 21 days; that they were required to serve
a copy of the statement on the court pursuant to Rule 1925(b)(1); and, that
failure to comply with the order would result in waiver. Trial Court Order,
5/22/18, at 1; see also Pa.R.A.P. 1925(b)(3). The concise statement order
was entered on the docket and the docket reflects that notice of the order was
sent to Appellants on May 22, 2018. See Docket Entry, at 5/22/18.
Appellants, however, failed to file their Rule 1925(b) statement, as
required by the trial court’s order and Rule 1925(b)(1). This results in the
automatic wavier of Appellants’ claims on appeal. Schofield, 888 A.2d at
774. Moreover, although Appellants apparently “sent the [trial] court a copy
of their” Rule 1925(b) statement and the trial court addressed the issues
contained in the statement, waiver is nevertheless mandatory under the rule
and our Supreme Court’s precedent. Schofield, 888 A.2d at 774-775; see
also Brown, 161 A.3d at 968 (“our review is limited to those facts which are
contained in the certified record and what is not contained in the certified
record does not exist for purposes of our review”) (quotations and citations
omitted).
Thus, since Appellants waived all issues on appeal, we affirm the
judgment entered in this case.
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Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/19
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