Greco, T. v. Citizens Bank of PA

J. A14007/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
THOMAS J. GRECO AND : IN THE SUPERIOR COURT OF
RICHARD J. GRECO, TRADING AS : PENNSYLVANIA
TGRG, LLP, SUCCESSOR TO :
THOMAS J. GRECO, ERIC KORNFELD :
AND MITCHELL KORNFELD, :
:
Appellants :
:
v. :
:
CITIZENS BANK OF PENNSYLVANIA, : No. 1504 MDA 2013
SUCCESSOR TO UNITED PENN BANK :
AND MELLON BANK, N.A. :
Appeal from the Order Entered August 2, 2013,
in the Court of Common Pleas of Luzerne County
Civil Division at No. 3003 of 2005
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 10, 2014
Appellants appeal from the order of August 2, 2013, in this
long-running lease dispute. We affirm.
The history of this matter is as follows. Appellee Citizens Bank of
Pennsylvania (“Citizens”) operates a bank branch at 111 East Market Street
in Wilkes-Barre, which it leases from appellants. The Lease had an initial
30-year term which commenced on March 1, 1990. The Lease set the rent
for the first 10 years, until 2000, and thereafter the rent was to be reset
every 5 years to fair market value. The Lease specified that if the parties
could not agree on the rent, the new rental rate would be determined by an
* Retired Senior Judge assigned to the Superior Court.
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MAI appraiser agreed upon by the parties. If the parties could not agree on
an MAI appraiser, each party would independently select one MAI appraiser.
The two appraisers selected would then select a third, neutral appraiser, and
the fair market rental rate would be determined by a majority of the
appraisers.
In March 2005, the parties were unable to come to an agreement on
the new rental rate, nor could they agree on a mutually acceptable
appraiser. Therefore, according to the terms of the Lease, each was
required to pick an appraiser so that the two appraisers could select a third.
Citizens selected Donald Goertel, MAI, as its appraiser, and Mr. Goertel duly
produced an appraisal. According to appellants, however, Mr. Goertel was
not provided a copy of the actual Lease Agreement and instead relied on a
Lease Abstract provided by counsel.
Appellants alleged that the Lease Abstract contained misinformation
regarding the square footage of the property and the number of parking
spaces available, resulting in an appraisal far below fair market value.
Appellants also alleged that the Lease Abstract erroneously reported the
March 2000 rent as $35,000/year, when in fact it was approximately
$91,000/year. Although Mr. Goertel’s appraisal report referenced the
Lease Abstract, it was not attached to the report.
Appellants filed a complaint seeking to disqualify Mr. Goertel as
Citizens’ appraiser and also seeking specific compliance with the provisions
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of the Lease, including the appraisal process. Citizens filed a counterclaim
for breach of contract and for money damages, to the extent that its current
rental payments exceeded fair market rental value. Citizens had been
continuing to pay rent at the rate set in 2000, which was higher than
Mr. Goertel’s appraised value. Appellants filed numerous motions, including
a motion to compel production of documents relating to the Lease Abstract
prepared by Citizens’ counsel, and also lease agreements of comparable
properties in Luzerne County which appellants claimed were used in the
appraisal process. Appellants also filed a motion to serve a subpoena on a
non-party, Frederick Masters, Esq., who allegedly prepared the
Lease Abstract. Appellants also filed a motion for sanctions and for
attorneys’ fees and costs.
On June 28, 2007, the trial court granted summary judgment for
Citizens Bank, finding that the Lease provides a clear and unambiguous
three-step process for determining the new rental rate, and that Citizens
may use Mr. Goertel as its appraiser. The trial court ordered that pursuant
to the terms of the Lease, appellants shall pick an MAI appraiser who will
then work with Citizens’ appraiser to choose a third appraiser.
Citizens then retained Patrick Noone, MAI, who issued a similar
appraisal.1 Again, Mr. Noone relied on the Lease Abstract which appellants
claim contained misinformation and failed to incorporate the material terms
1
Apparently, Mr. Goertel became ill.
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of the subject Lease Agreement. Appellants retained Charles Moyer, MAI, as
their appraiser.
A hearing was held on January 30, 2012; apparently, the parties had
still not reached agreement on a third appraiser. Appellants maintained that
they had still not received a copy of the Lease Abstract, which Citizens
characterized as attorney work product. (Notes of testimony, 1/30/12 at
17.) In the end, the trial court agreed that it would review the
Lease Abstract in camera. (Id. at 18.) The trial court also set deadlines
for the parties to select their own appraisers and for selection of the third,
neutral appraiser. (Id. at 10.)
Another hearing was held on June 24, 2013. At that time, the parties
had reached an agreement on the rent through the 2015-2020 period.
(Notes of testimony, 6/24/13 at 4.) According to Citizens, the neutral
appraiser agreed with appellants’ appraiser, and Citizens accepted their
valuation for the period from 2005-2010. (Id.) The parties also entered
into a new Lease Agreement setting the rent for the periods 2010-2015 and
2015-2020. (Id.) In addition, Citizens’ counterclaim for overpayment was
essentially rendered moot because the fair market rental value for
2005-2010, as determined by the majority of the appraisers, was more than
what Citizens had been paying in rent. (Id. at 5.) Citizens indicated it was
withdrawing the counterclaim. (Id. at 8.) On June 28, 2013, Citizens filed a
praecipe to discontinue its counterclaim.
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On July 17, 2013, the trial court issued an order denying appellants’
outstanding motions for discovery and imposition of sanctions. The trial
court concluded that all claims by the parties had been disposed, and the
trial court no longer had jurisdiction over the matter. (Opinion and order,
7/17/13 at 1.) The trial court also found that appellants’ motion for
sanctions for Attorney Masters’ failure to respond to their subpoena was
moot in light of the parties’ settlement of the underlying lease/rental
dispute. (Id. at 2.) Appellants filed a motion for reconsideration which was
denied on August 2, 2013. This appeal followed on August 16, 2013.
First, we must address Citizens’ argument that the appeal is untimely.
According to Citizens, its praecipe to discontinue counterclaim filed June 28,
2013, was a final order disposing of all claims and all parties, and appellants
were required to file a notice of appeal within 30 days of that date.
(Citizens’ brief at 10.) Therefore, appellants’ appeal filed August 16, 2013,
was untimely. (Id.)
In order to preserve the right to appeal from an
order which finally adjudicates a dispute between
litigants, it is beyond question that the appeal must
be filed within 30 days of the date of the order.
Pa.R.A.P. 903(a). The 30-day period must be
construed strictly. Commonwealth v. Hottinger,
370 Pa.Super. 527, 537 A.2d 1 (1987), alloc.
denied, 520 Pa. 614, 554 A.2d 507 (1988). This
Court has no jurisdiction to excuse a failure to file a
timely notice. Thermo-Guard v. Cochran, 408
Pa.Super. 54, 596 A.2d 188 (1991). Moreover, it is
well-settled that while a trial court maintains
jurisdiction to reconsider an order for up to 30 days
even where an appeal has been filed, Pa.R.A.P.,
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Rule 1701(b)(3), 42 Pa.C.S.A., merely filing a motion
for reconsideration will not toll the appeal period.
Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523
A.2d 399 (1987) (en banc), alloc. denied, 518 Pa.
626, 541 A.2d 1138 (1988); Justice v. Justice, 417
Pa.Super. 581, 612 A.2d 1354 (1992), alloc.
denied, 533 Pa. 635, 621 A.2d 581 (1993);
Valentine v. Wroten, 397 Pa.Super. 526, 580 A.2d
757 (1990), alloc. denied, 527 Pa. 650, 593 A.2d
422 (1991).
In re Greist, 636 A.2d 193, 195 (Pa.Super. 1994).
Ordinarily, an appeal may only be taken from a final
order. Pa.R.A.P. 341(a). A final order is one that is
intended to be final as to all parties and to the whole
subject matter. Pace v. Thomas Jefferson
University Hosp., 717 A.2d 539 (Pa.Super.1998);
Pa.R.A.P. 341(b)(1).
Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 579 (Pa.Super. 2003).
“This Court has held that ‘[a] praecipe to discontinue constitutes a final
judgment.’” Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 66
A.3d 330, 334 (Pa.Super. 2013), appeal granted in part on other
grounds, 84 A.3d 1058 (Pa. 2014), quoting Levitt v. Patrick, 976 A.2d
581, 587 (Pa.Super. 2009) (citation omitted).
Citizens argues that appellants’ claims had been dismissed in the trial
court’s June 28, 2007 order granting Citizens’ motion for summary
judgment. When the parties agreed on new lease terms and Citizens
subsequently filed a praecipe to discontinue its counterclaim, the case was
over. (Citizens’ brief at 11.) According to Citizens, the June 28, 2013
praecipe constituted a final order disposing of all claims/parties. (Id.)
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We disagree, because appellants still had outstanding motions
including a motion for sanctions for Attorney Masters’ failure to comply with
their subpoena. The trial court held a hearing on these motions on June 24,
2013. The praecipe to discontinue did not dispose of all claims. Therefore,
it was not a final order, and the trial court still had jurisdiction over the
matter.
However, we agree that appellants’ discovery motions were moot. All
of appellants’ claims were dismissed on summary judgment, and the parties
agreed on the fair market rental value of the property, including
retroactively for the period from 2005-2010, and signed a new
Lease Agreement. Since the agreed-upon back rent was more, not less,
than what Citizens had been paying during the pending litigation, its
counterclaim was mooted. At that point, all the substantive underlying
issues in the case were resolved.
Appellants wanted to subpoena Attorney Masters to testify regarding
the Lease Abstract he prepared for Mr. Goertel, Citizens’ first appraiser.
However, even if, as appellants alleged, the Lease Abstract contained
numerous mistakes including as to square footage and 2005 rental value,
the issue became moot when two of the three appraisers, including the
neutral appraiser, agreed on fair market rental value and the parties
executed a new Lease. Similarly, in their motion to compel discovery,
appellants sought a copy of the Lease Abstract and lease agreements of
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comparable properties rented by Citizens and relied upon by Mr. Goertel and
Mr. Noone. Again, the parties’ eventual settlement made these motions
moot. The Lease Abstract used by Mr. Goertel in his appraisal report no
longer had any relevance whatsoever. Two of the three appraisers reached
agreement on the fair market rental value of the property, and Citizens
abided by that agreement. Although appellants refused to execute a
praecipe to settle and discontinue, the case is terminated. (Notes of
testimony, 6/24/13 at 8.) There is nothing left to litigate. We assign no
error to the trial court’s denial of appellants’ discovery motions.
Order affirmed.
Strassburger, J. joins in the decision.
Olson, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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