Jackson v. Kassab

JOYCE, J.:

¶ 1 Edward Kassab, William C. Archbold, Jr., and Joseph P. O’Brien (collectively Appellants) appeal from the judgment entered against them and in favor of Robert J. Jackson (Appellee) in the Court of Common Pleas of Delaware County. Upon review, we affirm the judgment entered in the trial court. The relevant facts and procedural history of this matter are as follows.

¶2 On June 4, 1998, Appellee filed a complaint in the Court of Common Pleas of Delaware County requesting the dissolution of KAJO Building Associates² and an award based on a claim of Appellants’ unjust enrichment.³ On December 18, 1998, Appellants filed their answer and counterclaims that alleged breach of contract, breach of fiduciary duty, and fraud against Appellee based on the same position they took in a previous bankruptcy proceeding where these issues were raised but not decided.⁴ After a bench trial, Ap-pellee was awarded $141,212.38, with interest from July 1, 1995; the order dismissed all counterclaims. Thereafter, Appellants filed timely post-trial motions but'failed to brief those complaints before the trial court. The trial court denied relief. Ap-pellee filed a praecipe for entry of judgment, and judgment was entered on October 4, 2000. Appellants timely appealed.

¶ 3 We digress to acknowledge the appellate history of this matter. When this case was first presented on appeal, a panel of this Court affirmed the trial court’s denial of relief based on Appellants’ failure to brief the issues raised in their post-trial motions. Appellants timely applied for reargument, the application was granted, the earlier panel memorandum was withdrawn, and the case is now before our Court en baric. The issue is whether the trial court abused its discretion when it denied the post-trial motions based upon the absence of a supporting brief.

¶ 4 Appellants aver that the trial court’s decision and the earlier memorandum of this Court were contrary to our holding in Schulz v. Celotex Corp., 447 Pa.Super. 391, 669 A.2d 404 (1996). We disagree.

¶ 5 In Schulz, this Court held that a trial court’s dismissal of post-trial motions for failure to file a brief in support, within the time prescribed by local rule of court, was prohibited pursuant to Pa.R.Civ.P. 239(f). Rule 239(f) specifically prohibits the dismissal of any civil action or proceeding for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.⁵ Id. at 404; Pa. R.Civ.P. 239(f).

¶ 6 The key distinction is that in Schulz, the motions were dismissed for failure to comply with a local rule, while in the case sub judice, the motions were dismissed for failure to file a supporting brief. While this may appear to be a semantic difference, the relevant case law of this Commonwealth holds otherwise.

¶ 7 Schulz dealt exclusively with a dismissal ordered pursuant to local rules, which, as we stated earlier, is prohibited.⁶ See Pa.R.Civ.P. 239(f). In the instant case, local rules are never mentioned. Accordingly, since in our case there is no express or implied reliance on a local rule, we cannot presume the trial court’s decision was based on local rule and Schulz is inapplicable. Our focus is necessarily whether the trial court abused its discretion under the law of this Commonwealth, and we answer that question in the negative.

Post-trial practice is governed by Pa. R.C.P. 227.1, which requires timely objection and specific mention in a post-trial motion before an issue may be considered by the post-trial court. The purpose for this rule is to afford the trial court the opportunity to correct an error at the time it is made, and to inform the court of the issues which must be decided at the post-trial stage, thereby giving it the first opportunity ‘to review and reconsider the determination it made at trial.’

DiSalle v. P.G. Pub. Co., 375 Pa.Super. 510, 544 A.2d 1345, 1363 (1988) (citations omitted).

¶ 8 “To fully effectuate the latter purpose, common sense mandates that any issue raised in a motion for post-trial relief must be briefed and argued to the trial court.” Id. “[Fjailure to set forth an argument in briefs filed in the court in support of post-trial motions constitutes a failure to preserve the issue or issues not argued.” Id. at 1364 (citing Bryant v. Girard Bank, 358 Pa.Super. 335, 517 A.2d 968, 973 (1986)); accord Kraus v. Taylor, 710 A.2d 1142 (Pa.Super.1998).

¶ 9 Appellants’ failure to brief and argue their post-trial motions resulted in the trial court being deprived of its opportunity to address the merits of their post-trial contentions. We find no abuse of discretion in this decision.

¶ 10 Since it is our determination that the trial court was not provided the means to address issues post trial, we are left with nothing to review. DiSalle, supra, at 1364. Having found Appellants abandoned their issues on appeal, we affirm the trial court’s decision.

¶ 11 Judgment affirmed.

¶ 12 FORD ELLIOTT, J., MUSMANNO, J., ORIE-MELVIN, J., and KLEIN, J. Join.

¶ 13 LALLY-GREEN, J., files Concurring Statement in which KLEIN, J. joins.

¶ 14 DEL SOLE, P.J., files Dissenting Opinion in which BENDER, J. joins.

¶ 15 STEVENS, J. Recuses.

2 . KAJO Building Associates was formed as a real estate partnership. It leased properly to the KAJO law partnership. The real estate partnership consisted of Kassab, Archbold, Jackson, O'Brien, and Richard A. Stanko.

3 . Although an equal partner, Stanko is not involved in this litigation.

4 . See In re Granite Partners I, LTD., Bankr.No. 95-18296DWS, Adv. No. 96-0667 (Bankr. E.D.Pa.11/20/1997) (wherein it was argued that Appellee sought to profit from what was alleged to be a partnership deal in violation of the partnership agreement).

5 .Rule of Judicial Administration 1901 relates to .the several courts of common pleas’ authority to dismiss a case for inactivity. See Pa.R.J.A. No. 1901.

6 . The authority utilized, a local rule, under which the trial court in Schulz dismissed the motions, was the sole reason for reversal as it violated Pa.R.Civ.P. 239(f). Had the trial court in Schulz dismissed the post-trial motions without doing so under color of a statutorily prohibited local rule, the dismissal itself, pursuant to Pennsylvania case law cited herein, would appear to have been correct.