G.L. Geppert v. Borough of Swissvale ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory L. Geppert :
Appellant :
: No. 324 C.D. 2020
v. :
: Submitted: October 15, 2020
Borough of Swissvale :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE MCCULLOUGH FILED: December 8, 2020
Gregory L. Geppert (Geppert) appeals from the March 2, 2020, non-
jury verdict entered in the Court of Common Pleas of Allegheny County (trial court),
finding in favor of the Borough of Swissvale (Borough) on Geppert’s action in
mandamus.1
1
Geppert incorrectly filed his appeal directly from the non-jury verdict. Generally, a party
seeking to file a notice of appeal must first file a praecipe to enter judgment on the non-jury verdict
and the judgment must be entered on the docket with appropriate notice of the same by the
prothonotary to the parties. It is only after entry of judgment and notice of the same to the parties
that this Court has jurisdiction to review the merits of an appeal. See Johnston the Florist, Inc. v.
TEDCO Construction Corporation, 657 A.2d 511, 514 (Pa. Super. 1995) (en banc) (stating that
entry of judgment is a prerequisite to the exercise of its court’s jurisdiction).
Although we could do so, we decline to quash the appeal in these circumstances. Our
rationale is this: were we to expend judicial resources in the decision to quash on this basis,
inevitably one of the parties will praecipe the prothonotary to enter judgment, only to have Geppert
refile his appeal. In situations like this, our courts have opted to conserve judicial resources and
allow the appeal to go forward where, as here, “the order from which a party appeals was clearly
(Footnote continued on next page…)
Geppert was employed by the Police Department of the Borough
(Police Department) from March 21, 1990, through January 1, 2018. After serving
as a patrolman, lieutenant, and Assistant Chief, Geppert was appointed as Chief of
Police in 2008 and remained in that position through his retirement on December 31,
2017. (Trial Transcript, February 3, 2020 (Tr.) at 4; Reproduced Record (R.R.) at
5a, 19a.) During his time with the Police Department and prior to serving in the
management-level positions of Assistant Chief and Chief, Geppert was a member of
the Police Department’s bargaining unit, represented by the Swissvale Police
Officers Association. (R.R. at 5a, 10a.) He was not a member of the bargaining
unit while he was in management positions of Assistant Chief and Chief. Id.When Geppert retired, the Borough provided him with full medical and
hospitalization benefits. In April of 2018, Geppert was notified by the Borough
Solicitor that he would have to pay $100 per month towards his healthcare insurance
and these payments were retroactive to December 31, 2017. The Borough Solicitor
also informed Geppert that if he failed to make these payments his healthcare would
be cancelled. (R.R. at 8a.) Geppert paid the 23 retroactive payments under protest
and continued to pay the $100 per month charged by the Borough. Id.On October 15, 2018, Geppert filed a complaint in mandamus, alleging
that the Borough’s practice of invoicing of him for medical insurance contributions
was discriminatory treatment in view of the fact that he was the only retired
Swissvale police officer being required to contribute towards his medical insurance.
(R.R. at 60a.) Geppert asked the trial court to require the Borough to cease and desist
from requiring him to contribute towards his post-retirement healthcare.
intended to be a final pronouncement on the matters discussed.” Johnston the Florist, 657 A.2d
at 514 (internal quotation marks omitted); see also McCormick v. North Eastern Bank of
Pennsylvania, 561 A.2d 328, 330 n.1 (Pa. 1989).
2
The Borough filed preliminary objections to Geppert’s complaint,
arguing that the trial court lacked jurisdiction to issue mandamus relief because
Geppert should have litigated the case under the grievance procedure of the parties’
collective bargaining agreement (CBA).2 After oral argument, a judge of the Court
of Common Pleas of Allegheny County, on December 12, 2018, overruled the
Borough’s preliminary objections. (R.R. at 1a.)
The case proceeded to a bench trial which took place on February 3,
2020, before a different judge (trial judge). (R.R. at 2a.) At trial, Geppert testified
that he contacted two Swissvale Police Chiefs who had retired before him, Chief
Nuzzo and Chief Ohman, and both stated that they had paid nothing toward their
healthcare costs after retirement. (Tr. at 7, R.R. at 8a.) After Geppert rested, the
Borough moved to dismiss the case. (Tr. at 11-12, R.R. at 12a-13a.) The Borough
argued that Geppert erred by filing an action in mandamus instead of litigating the
dispute through the grievance procedure under the CBA. In response, Geppert
argued that he was not a member of the bargaining unit at the time he retired so he
had no right to file a grievance. (Tr. at 12, R.R. at 13a.) Geppert also argued that in
any event, this issue was already decided previously when a prior judge overruled
the Borough’s preliminary objections which raised the identical argument. He
argued that the trial judge was, thus, precluded from ruling on the issue again by the
coordinate jurisdiction rule. (Tr. at 35-36, R.R. at 36a-37a.) The trial judge took the
matter under advisement.
The Borough presented the testimony of Borough Manager, Clyde
Wilhelm, who testified that Geppert was not charged by the Borough for any
contribution toward the healthcare premium while serving as Assistant Chief and
2
Neither the complaint nor the preliminary objections are included in the Reproduced
Record or Supplemental Reproduced Record.
3
Chief, because he was a management-level employee and not a member of the
bargaining unit at that time. (Tr. at 24, R.R. at 25a.) Wilhelm testified that after
Geppert’s retirement, the Borough began invoicing him for the contribution, at a rate
of $100 per month, pursuant to Article X, Section A(2) of the CBA.3 (Tr. at 20-25,
R.R. at 21a-26a.) He testified that the basis for providing Geppert his post-
retirement medical insurance was the CBA between Swissvale police officers and
the Borough. (Tr. at 20, R.R. at 21a.) Wilhelm explained that there is no other
contract between Geppert and the Borough, other than the CBA, which obligated the
Borough to provide Geppert with healthcare benefits post-retirement. (Tr. at 30,
R.R. at 31a.) In other words, the only reason Geppert received post-retirement
healthcare was the CBA, and the CBA requires a $100 contribution. Id. Wilhelm
testified that retired Chief Nuzzo passed away before the CBA provision requiring a
$100 contribution went into effect. (Tr. at 27, R.R. at 28a.) He was unable to
3
Article X of the CBA entitled “Hospitalization and Medical Insurance” provides, in
pertinent part, as follows:
Section A. All full time Civil-Service bargaining unit
members covered by the Borough’s hospitalization program will be
covered by the current health program thru Municipal Benefits
Services (MBS). The Borough shall establish a health
reimbursement account to cover the full deductible for each police
officer. Employees will be fully responsible for co-pays.
***
2. Contribution Toward Hospitalization Premium. Each
officer who is covered by health insurance shall contribute ten
percent (10%) of the monthly premium for his or her hospitalization
up to a maximum of $100 per month. . . .
***
Section B. Hospitalization for Retirees. The hospital plan
provided to active full time bargain unit members shall be extended
to retirees, husband and wife only, until age 65. . . .
CBA, Article X. (Supplemental Reproduced Record (SRR) at 8-9.)
4
determine if Chief Ohman, who retired in 2008, was required to pay the $100
contribution. Id.After the conclusion of trial, the trial judge invited the parties to file
supplemental legal briefs, which they did.
On March 2, 2020, the trial judge issued a non-jury verdict in favor of
the Borough and against Geppert because Geppert “failed to meet his burden of proof
for mandamus relief.” (Non-Jury Verdict, 3/3/20 at 1.) Geppert filed a Notice of
Appeal on March 19, 2020. On March 19, 2020, the trial judge filed a memorandum
in lieu of an opinion, concluding that Geppert failed to file a motion for post-trial
relief pursuant to Pennsylvania Rule of Civil Procedure No. 227.1(c)(2) and,
consequently, he waived all issues on appeal. (Trial court memorandum in lieu of
opinion, 3/19/20 at 1.)
On appeal,4 Geppert raises two issues: (1) whether the coordinate
jurisdiction rule precluded the trial judge from concluding that he failed to
demonstrate his entitlement to mandamus relief; and (2) whether he waived his
issues on appeal by failing to file a post-trial motion.
Discussion
As an initial matter, we determine whether Geppert waived the issues
that he raises in his appellate brief.
Post-trial motions shall be filed pursuant to Pa. R.C.P. No. 227.1 at the
conclusion of any type of trial. Chalkey v. Rousch, 805 A.2d 491 (Pa. 2002).
4
When reviewing a non-jury verdict, this Court’s scope and standard of review is limited
to determining whether the competent evidence supports the trial court's findings of fact and
whether the trial court committed an error of law. East Coast Paving & Sealcoating, Inc. v. North
Allegheny School District, 111 A.3d 220, 226 n.8 (Pa. Cmwlth. 2015). This Court must treat the
trial court’s findings of fact the same as this Court would treat a jury’s findings of fact. Id. This
Court views the evidence in the light most favorable to the party that prevailed before the trial
court. Id.5
Motions for post-trial relief must be filed within 10 days after notice of the verdict
is sent. Pa. R.C.P. No. 227.1(c)(1). The Pennsylvania Supreme Court has concluded
that the filing of a post-trial motion is mandatory if a litigant wishes to preserve
issues for further review. L.B. Foster Co. v. Lane Enterprises, Inc., 710 A.2d 55(Pa. 1998) (concluding that Pa. R.C.P. No. 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.”). See also Municipal Authority
of Hazle Township v. Lagana, 848 A.2d 1089, 1092-93 (Pa. Cmwlth. 2004).
Here, the trial judge convened a one-day bench trial and thereafter
rendered a decision on March 3, 2020. Notices were sent on that day. An
examination of the original record and docket entries establishes that Geppert filed
a Notice of Appeal on March 19, 2020, directly from the non-jury verdict. However,
he did not file a motion for post-trial relief pursuant to Pa. R.C.P. No. 227.1 after the
trial judge rendered his verdict.
Geppert argues that he was not required to file a post-trial motion
because the trial judge permitted the parties to file briefs to supplement the
arguments they made at trial. (Geppert’s Brief (Br.) at 8.) He argues that the purpose
of post-trial motions “is to apprise a trial court of the issues which a party believes
the Court should address.” Id. at 10. He argues that since the trial judge “was
apprised of the issues in dispute” by the supplemental post-trial briefs filed by both
parties, post-trial motions were “unnecessary” and would have been “redundant.”
Id.
Geppert cites to no authority, and we have found none, to support his
argument that filing a supplemental brief after trial, but before a verdict is rendered,
is an acceptable substitute for a post-trial motion. The purpose of a post-trial motion
6
is to provide the trial court with notice of any issues remaining after trial so that the
trial court has an opportunity to respond, prior to any appeal being perfected. M.C.
& E.K. Lees, Inc. v. Capenos, 119 A.3d 1092, 1101 (Pa. Cmwlth.), appeal denied,
128 A.3d 1208 (Pa. 2015). The object is to permit the trial court the opportunity,
while it still has jurisdiction, to review and reconsider its ruling and to correct the
error if necessary. Id. See also, Jackson v. Kassab, 812 A.2d 1233 (Pa. Super. 2002),
appeal denied, 825 A.2d 1261 (Pa. 2003); Chalkey, 805 A.2d at 494 n.9 (observing
that the purpose of Pa. R.C.P. No. 227.1 is to avoid the need for appellate review by
providing the trial court a chance to correct any errors in its ruling). A supplemental
brief filed after trial, but before the verdict, does not accomplish this purpose.
Accordingly, although Geppert filed a supplemental legal brief after trial, addressing
issues he now seeks to argue on appeal, we conclude that these issues are nonetheless
waived because Geppert failed to file a timely post-trial motion. See L.B. Foster
Co., 710 A.2d at 55.
Notwithstanding the fact that Geppert waived his arguments for appeal,
if this Court were to address Geppert’s contentions, we would conclude that they do
not merit relief.
Geppert argues that the substantive issue of whether he was required to
litigate his dispute under the grievance procedure of the CBA (as opposed to filing
an action in mandamus) was already decided when the first judge overruled the
Borough’s preliminary objections which raised the identical argument.5 He
5
As for the underlying substantive issue, Geppert merely states that he “did not err in filing
a mandamus action instead of litigating the dispute through the grievance procedure under the
[CBA].” See Geppert’s Br. at 9. However, aside from this brief statement, he has provided no
other argument, support, or analysis of the issue in violation of Pa. R.A.P No. 2119. Because
Geppert has failed to develop any argument or cite to any authority in support of this issue, we
find it is waived. See In re Tax Claim Bureau of Lehigh County 2012 Judicial Tax Sale, 107 A.3d
(Footnote continued on next page…)
7
contends that under the coordinate jurisdiction rule, the trial judge was precluded
from revisiting the issue again at trial. We disagree that the coordinate jurisdiction
rule applies to these facts.
The coordinate jurisdiction rule is encompassed within the law of the
case doctrine. Zane v. Friends Hospital, 836 A.2d 25 (Pa. 2003). “The coordinate
jurisdiction rule serves to protect the expectations of the parties, to insure uniformity
of decisions, to maintain consistency in proceedings, to effectuate the administration
of justice, and to bring finality to the litigation.” Id. at 29. With limited exceptions,
the rule “commands that upon transfer of a matter between trial judges of coordinate
jurisdiction, a transferee trial judge may not alter resolution of a legal question
previously decided by a transferor trial judge.” Hunter v. City of Philadelphia, 80
A.3d 533, 536 (Pa. Cmwlth. 2013) (quoting Zane, 836 A.2d at 29).
“Simply stated, this rule provides that judges of coordinate jurisdiction
should not overrule each other’s decisions.” Id. However, as our Supreme Court
has explained, different judges may rule on different motions without violating the
rule:
Where the motions differ in kind, as preliminary
objections differ from motions for judgment on the
pleadings, which differ from motions for summary
judgment, a judge ruling on a later motion is not precluded
from granting relief although another judge has denied an
earlier motion. However, a later motion should not be
entertained or granted when a motion of the same kind has
previously been denied, unless intervening changes in the
facts or the law clearly warrant a new look at the question.
Goldey v. Trustees of University of Pennsylvania, 675 A.2d 264, 267 (Pa. 1996)
(emphasis in original).
853 (Pa. Cmwlth. 2015) (a party’s failure to develop an issue in the argument section of its brief
constitutes waiver of the issue).
8
Here, the coordinate jurisdiction rule was not implicated or violated.
The first judge overruled the Borough’s preliminary objections, which simply meant
that Geppert had alleged enough facts in his complaint to proceed beyond the
pleading stage. At the preliminary objection stage, the first judge was required to
accept the facts of Geppert’s complaint as true, including his factual claim that he
was not restricted to the CBA’s grievance procedure to resolve his healthcare
benefits contribution dispute. However, after the trial, in light of the evidence, the
trial judge found that Geppert had failed to establish that he was not bound by the
CBA’s grievance procedure, which was essential to his cause of action in mandamus.
The coordinate jurisdiction rule did not limit the trial judge’s authority to rule after
trial that Geppert had ultimately failed at trial to prove he was entitled to mandamus
relief. The trial judge’s ruling that Geppert failed to establish that he was entitled
to mandamus relief was made in a decision adjudicating Geppert’s action following
trial, an entirely different procedural posture from the preliminary objections.
Conclusion
In sum, we conclude that Geppert waived all of his issues due to his
failure to file a timely post-trial motion. Because no issues were preserved for
appeal, the appeal is dismissed.6
_______________________________
PATRICIA A. McCULLOUGH, Judge
6
On a final note, the Borough has invited Geppert to file a grievance to settle his dispute
over the post-retirement healthcare benefits contribution. The Borough has indicated that it would
not waive any of its defenses against a grievance arising out of this matter, including timeliness,
but would agree to submit it to binding arbitration before a neutral arbitrator, in accordance with
Article XV of the CBA. (Borough’s Br. at 13, n.2.)
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Gregory L. Geppert :
Appellant :
: No. 324 C.D. 2020
v. :
:
Borough of Swissvale :
ORDER
AND NOW, this 8th day of December, 2020, the appeal filed by
Appellant Gregory L. Geppert is hereby DISMISSED.
________________________________
PATRICIA A. McCULLOUGH, Judge