Lewandowski, H. v. Moretti, M. ( 2016 )

J-A29021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HELEN LEWANDOWSKI AND ROBERT A. IN THE SUPERIOR COURT OF
LEWANDOWSKI, INDIVIDUALLY AND AS PENNSYLVANIA
EXECUTOR OF THE ESTATE OF
DECEASED HELEN LEWANDOWSKI,
Appellee
v.
MICHELLE MORETTI AND LOUIS ULMER,
APPEAL OF MICHELLE MORETTI
Appellant No. 1887 WDA 2014
Appeal from the Judgment Entered August 27, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR-14-001328
BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 12, 2016
Michelle Moretti filed this appeal after Appellee Robert Lewandowski,
individually and in his capacity as executor of the estate of his deceased wife
Helen Lewandowski, prevailed at a nonjury trial and received an award in
the amount of $17,497.50 against Appellant. We affirm.
On June 11, 2014, Appellee1 filed a complaint against Louis Ulmer and
Ms. Moretti, containing the following allegations. The Lewandowskis resided
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1
While Helen Lewandowski was also a named plaintiff, the complaint
indicated that she died on December 28, 2013. “A deceased person cannot
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at 3442 Bismark Street, Pittsburgh. Ms. Moretti and Mr. Ulmer (“the
defendants”) jointly owned and operated an unincorporated business that
was engaged in contracting and building repairs. From June 27, 2013
through mid-August 2013, the Lewandowskis contracted with the defendants
on four occasions to construct and/or repair various items at the Bismark
Street property, which were not performed properly or at all.
Jesse D. Pettit entered his appearance on behalf of the defendants and
filed an answer, new matter, and counterclaim. Appellee filed the
appropriate response. The matter was scheduled to proceed to arbitration
on October 30, 2014. However, on October 14, 2014, Mr. Pettit filed a
suggestion of bankruptcy as to Mr. Ulmer. A transcript of the October 30,
2014 proceeding establishes that neither Appellant nor Mr. Pettit appeared
on that date, when a nonjury trial was held before the Honorable Joseph
James.2
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(Footnote Continued)
be a party to an action commenced after his or her death.” Glover v. State
Farm Mut. Auto. Ins. Co., 2950 A.2d 335, 339 (Pa.Super. 2008). Thus,
Mr. Lewandowski, both individually and as representative of his deceased
wife’s estate, is legally the only party plaintiff herein.
2
Pa.R.C.P. 1303(a)(2) permits an case scheduled for arbitration to proceed
immediately to a nonjury trial where one or more of the parties fails to
appear, as follows:
The local rule may provide that the written notice [given at
least thirty days in advance of the date, time, and place for an
arbitration hearing] include the following statement:
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Appellee and his attorney were present and since “Mr. Ulmer filed a
bankruptcy,” Appellee elected to proceed “solely against Ms. Moretti.” N.T.,
10/30/14, at 3. A factual summary of Appellee’s testimony was presented.
In June 2013, he and his wife entered a series of contracts for repairs with
Mr. Ulmer and his partner, Ms. Moretti. There were a total of four jobs, two
of which were substantially completed but with defects. On one job, Mr. and
Mrs. Lewandowski paid $11,913.78, but the defendants performed no work
on that project. The defendants did leave behind $2,000 in materials, which
were subsequently used. To repair the defective work on the two projects
that were completed, Mr. Lewandowski hired another contractor and paid
him $5,300. Mr. Lewandowski requested attorney’s fees and a total award
of $17,497.50. A non-jury verdict was entered on October 30, 2014, in the
amount of $17,497.50 against Appellant.
Mr. Pettit filed a timely post-trial motion on November 5, 2014. That
document set forth the following. This matter was scheduled for arbitration
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(Footnote Continued)
“This matter will be heard by a board of
arbitrators at the time, date and place specified but,
if one or more of the parties is not present at the
hearing, the matter may be heard at the same and
date before a judge of the court without the absent
party or parties. There is not right to a trial de novo
on appeal from a decision entered by a judge.”
Allegheny County Local Rule number 1303 outlines the requirements
for the contents of the notice of an arbitration hearing and contains the
language outlined in Pa.R.C.P. 1303(a)(2).
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on October 30, 2014. On October 9, 2014, represented by Paul McElrath,
Esquire, Mr. Ulmer filed for bankruptcy. Mr. McElrath told Appellant that the
filing would operate as an automatic stay of this proceeding as to both Mr.
Ulmer and her. Based on this information from Mr. McElrath, Appellant
instructed Mr. Pettit “to perform no additional work in the above-captioned
matter except to notify the Court of the bankruptcy proceeding.” Post-Trial
Motion, 11/5/14, at ¶ 9.
The post-trial motion continued as follows. In accordance with
Appellant’s instructions, Mr. Pettit filed the suggestion of bankruptcy as to
Mr. Ulmer in this case on October 14, 2014. Appellant did not appear at the
October 30, 2014 arbitration, and Mr. Pettit also did not attend that
proceeding since he had not been told to do so by Appellant, as “she
believed all proceedings relating to the above-captioned case had been
stayed based on the advice of Attorney McElrath.” Id. at ¶ 11. Appellant
was not aware that the matter was not stayed as to her until she received
notice of the October 30, 2014 verdict. The post-trial motion was denied,
and this timely pro se appeal followed.3 Mr. Pettit thereafter withdrew his
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3
After the appeal was filed, this Court received a supplemental record
indicating that, on August 27, 2015, Ms. Moretti had the prothonotary enter
judgment on the verdict against her. Since this appeal was filed “after the
announcement of a determination but before the entry of an appealable
order,” it is “treated as filed after such entry and on the day thereof.”
Pa.R.A.P. 905(a)(5). For this reason, we deny Appellee’s request to quash
this appeal due to Appellant’s failure to enter judgment on the verdict, and
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appearance. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement, and she complied.
The trial court authored an opinion wherein it did not address the
merits of the post-trial motion. Its ruling was premised upon the fact that
no legal authority or argument had been presented therein that indicated
that Appellant was entitled to a new trial because a bankruptcy attorney
incorrectly informed her that these proceedings were stayed against her.
Trial Court Opinion, 2/11/15, at 2 (In her post-trial motion, “Defendant did
not raise any legal issues or argument except that she was told not to come
to court because the case would not be heard.”). On appeal, Appellant
raises this position:
1. Did the lower court err by denying the appellant’s Motion for
Post-Trial Relief when the appellant failed to appear for an
arbitration hearing after being told by her attorney that the
case had been continued and stayed because of a party’s
filing for bankruptcy and that the continuance and stay had
been consented to by the opposing attorney.
Appellant’s brief at 4.
Appellant seeks a new trial. When we review the trial court’s decision
to either grant or deny a new trial, we apply an abuse-of-discretion standard
of review. Czimmer v. Jansen Pharmaceuticals, Inc., 122 A.3d 1043
(Pa.Super. 2015). “[A]bsent a clear abuse of discretion by the trial court,
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(Footnote Continued)
we have changed the caption to reflect that this appeal is from the final
order entered in this case, the judgment entered against Appellant.
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appellate courts must not interfere with the trial court’s authority to grant or
deny a new trial.” Id. at 1051. We engage in a two-part analysis in this
setting. We determine first whether error occurred and, then, “whether the
error resulted in prejudice necessitating a new trial.” Id.
On appeal, Appellant’s argument is materially different from that
presented in her post-trial motion. She avers in her appellate brief that Mr.
Pettit advised her not to appear and that he was negligent. Appellant’s brief
at 9. Appellant also accuses Appellee’s counsel, Marc Rosenwasser, Esquire,
of inducing Mr. Pettit into a belief that Mr. Rosenwasser did not intend to
proceed on October 30, 2014. Specifically, she maintains that “there is
strong evidence that Rosenwasser was acting improperly, by telling Pettit
that he would not appear, or, at least, giving the impression to Pettit that he
would not appear.” Id.
In her post-trial motion, Appellant did not argue she was told not to
appear by Mr. Pettit and that Mr. Pettit was misled by Mr. Rosenwasser.
Her position was actually the opposite of that factual scenario. In the
motion, Appellant outlined that Mr. Ulmer’s bankruptcy attorney told her
that this action was stayed and that she told Mr. Pettit not to come to the
October 30, 2014 proceeding. Mr. Pettit prepared the post-trial motion and
never suggested that Mr. Rosenwasser improperly led him to believe that
Mr. Rosenwasser would not prosecute this matter on October 30, 2014,
against Appellant.
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As we observed in Siculietano v. K & B Amusements Corp., 915
A.2d 130, 132 (Pa.Super. 2006) (emphasis in original):
A party must file a post-trial motion from a trial court's
decision and order following the conclusion of a trial. The
purpose of Rule 227.1 is to provide the trial court with an
opportunity to correct errors in its ruling and avert the need for
appellate review. If an issue has not been raised in a post-
trial motion, it is waived for appeal purposes.
See Pa.R.C.P. 227.1 (b)(2) (“post trial relief may not be granted unless the
grounds therefor . . . are specified in the motion.”). Herein, Appellant failed
to raise her present factual position in her post-trial motion.
Additionally, in that document, she neglected to set forth any legal
authority or argumentation as to why she was entitled to a new trial because
she and Mr. Pettit failed to appear based upon erroneous legal advice from
Mr. Ulmer’s bankruptcy counsel. Finally, Appellant failed to delineate in her
post-trial motion any basis for overturning the verdict in favor of Appellee;
she did not outline therein that she had any meritorious defenses in this
case.
The trial court refused to grant post-trial relief due to Appellant’s
failure to raise any legal arguments or issues in her motion that would have
entitled her to a new trial. It had no opportunity to address the present
contentions and correct any error that occurred in the trial court
proceedings. In addition to including a contention in a post-trial motion, a
party also has an obligation to provide legal argument in support of the
contention. We addressed this scenario in Jackson v. Kassab, 812 A.2d
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1233 (Pa.Super. 2002), where a trial court declined to address positions
raised in a post-trial motion as they were not properly developed by
argument and reference to appropriate legal authority. The Jackson Court
observed that the purpose of filing a post-trial motion was to grant the trial
court an opportunity to correct an error made at trial. This Court continued
that, “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. at 1235. The Jackson panel concluded that the trial
court did not abuse its discretion in refusing to entertain the merits of
undeveloped assertions. This Court opined, “Failure 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. Thus,
Appellant’s argument on appeal is waived for the additional reason that it
was not properly supported by legal authority and advocacy before the trial
court.
Appellee’s February 19, 2015 Application to Quash this appeal is
denied. Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 1/12/2016
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