Jubinski, A. v. Dobrinski Brothers, Inc.

J-S08032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALEXANDER JUBINSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOBRINSKI BROTHERS, INC. :
:
Appellant : No. 763 MDA 2021
ALEXANDER JUBINSKI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DOBRINSKI BROTHERS, INC. : No. 847 MDA 2021
Appeal from the Order Entered May 18, 2021
In the Court of Common Pleas of Wyoming County Civil Division at
No(s): 2020-0044
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 19, 2022
Dobrinski Brothers, Inc. (Dobrinski Brothers) appeals, and Alexander
Jubinski (Jubinski) cross-appeals,1 from the order entered in the Wyoming
County Court of Common Pleas which: (1) terminated the quarry lease
agreement between the parties; (2) granted possession of the premises to
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1 The appeal and cross-appeal were consolidated by this Court sua sponte on
July 12, 2021. Order, 7/12/21.
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Jubinski; (3) directed Dobrinski Brothers to remove all equipment from the
property within 20 days; and (4) determined that the processed stone
remaining on the premises was the property of Jubinski. On appeal, Dobrinski
Brothers argues the court erred in granting possession of the remaining
processed stone to Jubinski. Jubinski asserts the trial court erred in failing to
award him hold over rent. Because we conclude both parties waived all claims
by failing to file post-trial motions, we affirm.
The facts underlying the parties’ dispute are aptly summarized by the
trial court as follows:
On January 20, 2016, Plaintiff, [Jubinski], and Defendant
[Dobrinksi Brothers,] entered into a Quarry Lease Agreement for
property located in Overfield and Falls Townships (hereinafter "the
leased land"). The lease was prepared by [Dobrinski Brothers].
Pursuant to the lease, [Dobrinski Brothers] was to pay for the
lease through royalties of Thirty- Five Cents for every ton of stone
removed and sold from the quarry. During the three (3) years
that [it] utilized the quarry, [Dobrinski Brothers] never paid
[Jubinski]. The only money received by [Jubinski] was Two
Thousand Five Hundred Dollars ($2,500.00) for taxes.
Prior to doing any extraction at the quarry, [Dobrinski
Brothers] had to do reclamation work in order to obtain its permit
from [the Department of Environmental Protection (DEP)]. This
work included benching things off, putting barriers up, re-grading
the roads and other land improvements.
In or around August of 2019, [Jubinski] sent an amended
lease via certified mail to [Dobrinski Brothers] reflecting that
[Jubinski] was going to start charging rent of One Thousand Two
Hundred Dollars ($1,200.00) after December 31, 2019.
Thereafter, [Jubinski] never heard from [Dobrinski Brothers] so
[he] determined to terminate the lease. [The parties stipulated
that, on September 30, 2019, Dobrinski Brothers received a notice
of termination of the lease from Jubinski, effective December
31st.]
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[Dobrinski Brothers] has not vacated the premises and to
date, a scale, a scale house and a quantity of processed stone
remain on the property. The stone that remains on the property
was not processed by [Dobrinski Brothers] but rather by the
previous tenant.[2] Following the expiration of the lease [on]
December 31, 2019, [Dobrinski Brothers] entered the property on
or about May 5, 2020 with dump trucks in an attempt to remove
the stone. The following day, the police were called to prevent
[Dobrinski Brothers] from taking the stone. [Jubinski] has
secured a new tenant for the property but said tenant has not
occupied the property because of the current litigation and
because [Dobrinski Brothers’s] scale and scale house have not
been removed from the property. There also remains on the
property a quantity of number 3 stone and a quantity of 2a
modified stone.
Trial Ct. Op. at 1-2 (record citations omitted).
In December of 2019, Jubinski filed an eviction action in the magisterial
district court and obtained a judgment of possession. Dobrinski Brothers
timely appealed to the Wyoming County Court of Common Pleas. On February
7, 2020, Jubinski filed a complaint seeking eviction of Dobrinski Brothers,
possession of the premises, and money damages from Dobrinski Brothers as
a holdover tenant. See Jubinski’s Complaint, 2/7/20, at 3 (unpaginated).
Specifically, Jubinski sought the fair rental value of $5,000 per month from
January 1, 2020, until possession of the properly was delivered to him. Id.
Neither the certified record, nor the docket, reflect that Dobrinski Brothers
filed an answer to the complaint. As noted above, Dobrinski Brothers
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2 More specifically, the parties stipulated that the “raw material for the . . .
stone remaining on the leased premises was already unburdened, drilled and
blasted prior to the commencement of the lease[, but that Dobrinski Brothers]
processed and crushed the raw materials to produce the” remaining stone.
Trial Ct. Op., 9/8/21, at 3.
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attempted to remove stone from the property in May of 2020, but was unable
to do so because Jubinski called the police.
On October 16, 2020, Jubinski filed a motion seeking permission to sell
the “crushed stone and other distrained property of” Dobrinski Brothers
remaining on the quarry site, “or in the alternative” an order “compelling
[Dobrinski Brothers] to make interim rent payments pending [the MDJ]
appeal[.]” Jubinski’s Motion to Make Interim Sale of [Dobrinski Brothers’s]
Distrained Property or in the Alternative to Compel Payment of Interim Rent,
10/16/20, at 1. Specifically, Jubinski sought ten months of “hold over rent at
$2,000.00 per month for a total of $20,000.00.” Id. at 4. The trial court
issued the parties a rule to show cause why the motion should not be granted
and scheduled a hearing for December 21, 2020. Order, 10/29/20.
On December 7, 2020, Dobrinski Brothers filed an answer to Jubinski’s
motion for interim sale, asserting, inter alia, that it attempted to remove its
property from the quarry, but Jubinski refused to allow it on the property.
See Dobrinski Brothers’ Answer to Jubinski’s Motion to Make Interim Sale,
12/7/20, at 1 (unpaginated). The same day, Dobrinski Brothers filed a petition
for an immediate temporary restraining order and preliminary injunction,
“restraining [Jubinski] from prohibiting access to the quarry . . . for [Dobrinski
Brothers] to remove [its] personal property[.]” [Dobrinski Brothers’s] Petition
for Immediate Temporary Restraining Order and, After Hearing, a Preliminary
Injunction, 12/7/20, at 1 (unpaginated). On December 22, 2020, the trial
court issued the following order:
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[T]he Court finding that there are numerous matters to be
litigated and discovery to be completed with respect to the above-
captioned matter,
IT IS ORDERED that [a] hearing on all matters and all
claims shall be heard on March 17, 2021 commencing at 1:00 p.m.
. . . VIA ZOOM MEETING.
IT IS FURTHER ORDERED that, pending hearing, neither
[Jubinski] nor [Dobrinski Brothers] shall engage in any quarrying
activities, shall remove any equipment and/or any materials from
the quarry[.]
Order, 12/22/20 (some emphasis added and some omitted).
The parties appeared for a settlement and status conference on
February 11, 2021. The following day, the trial court entered another order
noting that the parties did not reach a settlement agreement, and “that Trial
as set for March 17, 2021 at 1:00 p.m. via ZOOM shall remain as scheduled.”
Order, 2/12/21, at 1 (unpaginated) (emphasis added). The court also ordered
the parties to contract with Keller Crushing to provide an estimate of the
“[s]tripping, drilling, blasting and crushing costs for the crushed stone” still
remaining in the quarry, as well as an estimate of the size of the stockpile.
Id.
The trial court conducted the scheduled proceeding on March 17th. At
the outset, the court noted the parties were before the court for a “hearing”
and that they had provided a “stipulation of facts.” N.T., 3/17/21, at 4
(emphasis added). See Trial Ct. Op. at 3-4 (listing parties’ stipulation of
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facts).3 Counsel for Jubinski made an opening statement, and then called
Jubinski as a witness. Thereafter, counsel for Dobrinski Brothers made an
opening statement, and called Kevin Dobrinski as a witness. Counsel for both
parties gave closing argument before the court recessed.
On May 18, 2021,4 the trial court entered the following order:
AND NOW, . . . after full hearing in the above-captioned
matter,
IT IS ORDERED that,
1. All lease agreements between [Jubinski] and [Dobrinski
Brothers] be and are hereby terminated effective this
date.
2. Possession of the entire premises be and is hereby
granted to [Jubinski] effective this date.
3. [Dobrinski Brothers] shall have 20 days from today’s
date to remove all mechanical equipment from the
premises[ or said] equipment shall be deemed forfeited
and [Jubinski] shall be permitted to dispose of the same
as he may deem appropriate.
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3 Although the Stipulation of Facts is not included in the certified record, it is
in Jubinski’s reproduced record. See Jubinski’s Reproduced Record at 113-
15. Dobrinski Brothers does not dispute the Stipulation of Facts as it appears
therein; thus, we may consider the document. See Pa.R.A.P. 1921, Note
(“[W]here the accuracy of a pertinent document is undisputed, the [appellate
c]ourt could consider that document if it was in the Reproduced Record, even
though it was not in the record that had been transmitted to the [c]ourt.”).
Moreover, we note that while the trial court lists only 10 stipulations of fact,
there were, in fact, 11; the final stipulation was that after termination of the
lease, Jubinski sold some of the processed stone for a value of $2,610.
Jubinski’s Reproduced Record at 115.
4Although the order was entered on May 18th, it was not docketed until May
19, 2021.
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4. All processed #3 stone consisting of 1,500 tons and 2A
modified stone consisting of approximately 2,000 tons
shall remain upon the premises and shall become the
property of [Jubinski] in its entirety.
5. With respect to this order all claims between the parties
be and are hereby deemed resolved with no further
issues remaining open for litigation with respect to the
above-captioned matter.
Order, 5/18/21, at 1-2 (unpaginated) (emphasis added).
Neither party filed post-trial motions. Instead, on June 14, 2021,
Dobrinski Brothers filed a notice of appeal5 (Docket 763 MDA 2021), and
Jubinski filed a cross-appeal on June 25, 2021 (Docket 847 MDA 2021). Both
Dobrinski Brothers and Jubinski complied with the trial court’s orders directing
each of them to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.6
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5We note Dobrinski Brothers’s first notice of appeal improperly listed Jubinski
as the appellant. Dobrinski Brothers attempted to correct the mistake by filing
a purported amended notice of appeal on June 25th. However, on July 2,
2021, this Court entered an order notifying Dobrinski Brothers that its
amended notice “merely reclassifies the parties and does not contain the
requisite elements of a notice of appeal including, but not limited to, the order
appealed from.” Order (763 MDA 2021), 7/2/21. Thus, we directed Dobrinski
Brothers to file another amended notice of appeal within seven days, which it
did.
6 Upon our review, it appears Jubinski’s Rule 1925(b) statement was untimely
filed. The trial court entered an order on July 2, 2021, directing Jubinski to
file a concise statement within 21 days. See Order, 7/2/21. Jubinski’s Rule
1925(b) statement is date-stamped July 26th. See Jubinski’s Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925,
7/26/21. However, while the trial court’s order appears to indicate that it was
served on the parties on July 2nd, there is no corresponding notation on the
docket. See Pa.R.C.P. 236(b) (mandating “[t]he prothonotary shall note in
the docket the giving of the notice” of entry of an order). Although we may
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On July 30, 2021, this Court issued an order at each docket, directing
the parties to show cause why the appeals “should not be dismissed for failure
to preserve any issues for appellate review” since neither party filed post-trial
motions from the trial court’s May 18, 2021, order. See Order (763 MDA
2021), 7/30/21; Order (847 MDA 2021), 7/30/21. The show cause order cited
Pa.R.A.P. 227.1(c)(2), which requires a party to file post-trial motions within
10 days “in the case of a nonjury trial” in order to preserve claims for appellate
review. See id.
Both parties filed a timely response. Dobrinski Brothers asserted that
the March 17th hearing was not a non-jury trial, but “simply a hearing on two
Motions filed by both parties.” Dobrinski Brothers’s Response to Pa.R.A.P.
227.1 Order of July 30, 2021, 8/9/21, at 2 (unpaginated). Although the trial
court dismissed the entire case sua sponte, Dobrinski Brothers noted that the
pending motions “did not seek a non-jury trial” and the court’s action was
similar to a ruling on a motion for summary judgment. Id. Jubinski filed an
equivocal response noting that if Dobrinski Brothers’s argument was correct,
then Jubinski similarly preserved his issue for appeal. See Jubinski’s
Response to Order of July 30, 2021, 8/9/21, at 4. In his brief before this
Court, however, Jubinski now maintains that both parties failed to preserve
any issues on appeal by neglecting to file the requisite post-trial motions.
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remand to determine whether a Rule 1925(b) statement was timely filed or
served, see Pa.R.A.P. 1925(c)(1), due our disposition, we decline to do so in
the present case.
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Jubinski’s Brief (847 MDA 2021) at 15-21. On October 26, 2021, this Court
discharged the show cause order, but advised the parties that the issue may
be revisited by the merits panel.
Each party raises one issue for our review. In its appeal at Docket 763
MDA 2021, Dobrinski Brothers questions:
Whether the [t]rial [c]ourt erred in interpreting the contract at
issue when the clear language of the contract dictated that the
stone in question should be the property of . . . Dobrinski
Brothers[?]
Dobrinksi Brothers’s Brief (763 MDA 2021) at 4.
In his cross-appeal at Docket 847 MDA 2021, Jubinski raises the
following challenge:7
Did the trial court misapply and misapprehend the subject lease
agreement and contract law and, ultimately, err in failing to award
rent to [Jubinski] and against [Dobrinski Brothers], the [hold
over] tenant?
Jubinski’s Brief (847 MDA 2021) at 5.
Before we consider the substantive issues raised in this appeal and
cross-appeal, we must first determine if the parties preserved their claims for
appellate review. Pennsylvania Rule of Civil Procedure 227.1 “requires parties
to file post-trial motions in order to preserve issues for appeal.” L.B. Foster
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7 As noted above, Jubinski also argues that both he and Dobrinski Brothers
waived all claims on appeal by failing to file post-trial motions. Jubinski’s Brief
(847 MDA 2021) at 5. He presents his claim for hold over rent in the event
that this Court does not find waiver. Id. at 21.
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Co. v. Lane Enterprises, Inc., 710 A.2d 55, 55 (Pa. 1998). The Rule
provides, in relevant part:
(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.
Pa.R.C.P. 227.1(c)(1)-(2) (emphases added). Thus, “a party must file post-
trial motions at the conclusion of a trial in any type of action in order to
preserve claims that the party wishes to raise on appeal.” Chalkey v. Roush,
805 A.2d 491, 496 (Pa. 2002). However, the Rule also explains that post-trial
motions 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[,]” as well as “matters governed exclusively by petition practice[,]”
domestic relation matters, and orders directing partition of property.
Pa.R.C.P. 227.1, Note.
Here, neither party filed post-trial motions following the trial court’s May
18, 2021, order resolving all remaining claims between the parties. The
pertinent question, however, is whether the order constituted “a decision in
the case of a trial without a jury.” Pa.R.C.P. 227.1(c)(2). In his brief before
this Court, Jubinski now concedes that the March 17, 2021, proceeding “bore
all the ‘hallmarks’ of a trial [and] each party . . . should have been cognizant
that [Rule] 227.1 applied and mandated [the filing of] post-trial motions[.]”
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Jubinski’s Brief (847 MDA 2021) at 21. Thus, he asserts that all issues have
been waived. Id.Dobrinski Brothers does not address the waiver issue in either brief it
filed before this Court. However, in response to the rule to show case,
Dobrinski Brothers asserted the March 17th proceeding was a consolidated
“hearing” on Jubinski’s motion for interim sale and its own petition for a
temporary restraining order or preliminary injunction. Dobrinski’s Response
to Pa.R.A.P. 227.1 Order of July 30, 2021 at 2. It insisted the hearing was
“not a non-jury trial,” although the court “sua sponte issued a full resolution
of the case based on the [m]otions similar to a [m]otion for [s]ummary
[j]udgment.” Id.We recognize that the nature of the March 17th proceeding is somewhat
muddled by the record. Indeed, at various times, the trial court referred to
the proceeding as both a hearing and a trial. See Order, 12/22/20 (scheduling
“hearing on all matters” for March 17, 2021); Order, 2/12/21, at 1 (directing
that “Trial as set for March 17, 2021 . . . shall remain as scheduled”); N.T.,
3/17/21, at 4 (stating the parties were before the court for a “hearing”);
Order, 5/19/21, at 1 (entering decision “after full hearing”); Trial Ct. Op. at 2
(stating court entered order on appeal “following a bench trial”). In
determining whether an action falls under the scope of Rule 227.1,
“Pennsylvania courts look to the substance of the action, rather than the form
of a petitioner’s initial pleading[.]” G & G Invs., LLC v. Phillips Simmons
Real Est. Holdings, LLC, 183 A.3d 472, 477 (Pa. Super. 2018).
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To determine whether an appellant must file post-trial
motions following an in-court proceeding, we consider whether,
under the circumstances of the action: (i) the plain language of
Rule 227.1 makes clear a post-trial motion is necessary; (ii) case
law provides a post-trial motion is necessary, even if Rule 227.1
is silent on the subject; and (iii) practicing attorneys would
reasonably expect a post-trial motion to be necessary. Case law
requires a post-trial motion following a proceeding, where the
court heard new testimony and received new evidence, which the
court relied upon when it issued its decision.
Id. (citations omitted).
This Court’s decision in G & G is instructive. In that case, the appellant
filed a petition for appointment of a conservator pursuant to the Abandoned
and Blighted Property Conservatorship Act (Act 135). G & G, 183 A.3d at
473, citing 68 P.S. § 1101 et seq. The trial court subsequently scheduled a
hearing on the petition, following which the appellant petitioned for
authorization to inspect the interior of the property at issue. Id. at 474.
Following the hearing, during which both parties “gave opening statements
and presented testimony and other evidence,” the court issued an order
denying appellant’s petition. Id. at 474-75. The appellant did not file post-
trial motions, but instead filed a timely notice of appeal. Id. at 475.
This Court, sua sponte, considered whether the appellant had preserved
its issues on appeal despite the fact it had failed to file post-trial motions. G
& G, 183 A.3d at 476. In concluding that post-trial motions were required,
and the appellant’s failure to preserve any issues waived all claims for
appellate review, this Court opined:
Instantly, [the a]ppellant initiated this case by filing a
petition for appointment of a conservator pursuant to Act 135.
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The trial court conducted a hearing on [the] petition, during which
the parties offered exhibits into evidence and collectively
examined and cross-examined five witnesses. The parties
introduced evidence and elicited witness testimony for the first
time at the hearing. Although Rule 227.1 is silent concerning
post-trial motions following an Act 135 hearing, the record
establishes the court relied upon the . . . hearing testimony and
documentary evidence when it denied [the a]ppellant
relief. Therefore, case law makes clear, and practicing attorneys
would reasonably expect, post-trial motions were necessary
following the . . . hearing. Thus, the hearing on [the a]ppellant's
petition constituted a trial for purposes of Rule 227.1. After the
court denied [the a]ppellant's petition, however, [the a]ppellant
filed a timely notice of appeal but failed to file any post-trial
motion. Accordingly, [the a]ppellant waived its issues on appeal.
Id. at 477-78 (citations omitted).
Upon our review of the record and the relevant case law, we conclude
that here, as in G & G, the trial court conducted a non-jury trial on March 17,
2021, despite referring to the matter (on various occasions) as a hearing.
During the March 17th proceeding, both parties made opening and closing
arguments to the court and each presented a witness who was cross-
examined by the opposing party. Moreover, the parties presented a
Stipulation of Facts to the court, which it referred to in its opinion. In addition,
Jubinski moved several exhibits into evidence, including the court-ordered
evaluation by Keller Crushing. See N.T., 3/17/21, at 4, 38. Although
Dobrinski Brothers insists the court’s ruling pertained to the parties competing
motions – Jubinski’s motion to make interim sale and its own motion for
preliminary injunction — the testimony at the hearing, as well as the court’s
May 18th order, make clear that hearing was, in fact, a non-jury trial that
disposed of all outstanding claims. Indeed, the trial court did not even refer
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to the outstanding motions in the order on appeal; rather, the court directed
that possession of the property, including the processed stone therein, be
returned to Jubinski, and that Dobrinski Brothers remove all its machinery
within 20 days. See Order, 5/18/21, at 1-2. Further, the court explicitly
stated that “all claims between the parties . . . are hereby deemed resolved[.]”
Id. at 2. Thus, both parties should have been on notice that they were
required to file post-trial motions to preserve issues for appellate review, and
their failure to do so renders the issues raised in this appeal and cross-appeal
waived. See G & G, 183 A.3d at 477-78.
Accordingly, because neither party preserved any issues for appellate
review, we affirm the trial court’s May 19, 2021, order.8
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8 We note that, even if the parties had preserved their claims, neither would
be entitled to relief. With regard to Dobrinski Brothers’s claim of entitlement
to the processed stone remaining in the quarry, we conclude the trial court
properly directed “the stone to remain on the property.” Trial Ct. Op. at 5.
Paragraph 11 of the parties’ lease agreement provides that, within 180 days
of the end of the lease term, Dobrinski Brothers “shall complete any remaining
required reclamation on the Leased Land and remove equipment, machinery,
facilities, and other property at any time placed by it on the Leased Land[.]”
Jubinski’s Complaint, Exhibit A, Quarry Lease Agreement, 1/20/16, at 5. As
the trial court found, “the [remaining] processed stone was derived from raw
materials already present on the lease premises prior to the beginning” of the
lease term. Trial Ct. Op. at 5. Thus, the processed stone did not fit into any
of the categories of items that Dobrinski Brothers could remove following
termination of the lease under Paragraph 11. Indeed, we note that Dobrinski
Brothers was notified in September of 2020 that Jubinski intended to
terminate the lease on December 31st, and could have removed the processed
stone at any time before that date.
With respect to Jubinski’s claim for hold over rent, we agree with the
trial court’s finding that Jubinski refused to permit Dobrinski Brothers to
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/19/2022
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remove its equipment within the 180-day period provided for in Paragraph 11
of the lease. Thus, he is not entitled to hold over rent.
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