Nowicki, F. v. Righter, K. ( 2021 )

J-A27016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
FRANCES J. NOWICKI TRUST, BY : IN THE SUPERIOR COURT OF
ALLAN J. NOWICKI, TRUSTEE : PENNSYLVANIA
Appellant
Vv.
No. 1117 EDA 2020
KATHERINE E. RIGHTER
Appeal from the Order Entered February 28, 2020
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2019-08819
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: MARCH 19, 2021
Appellant Frances J. Nowicki Trust (the Trust), by Allan J. Nowicki,
Trustee (Nowicki), appeals pro se from the trial court’s order granting Appellee
Katherine E. Righter’s motion for judgment on the pleadings and dismissing
Appellant’s complaint with prejudice. Appellant claims the trial court erred by
concluding that Nowicki lacked standing to bring this action on behalf of the
Trust. We affirm.
We adopt the factual and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 7/23/20, at 1-5. In relevant part, Nowicki and
Mary Frances Senior (Co-trustee Senior) are the two co-trustees of the Trust.
The corpus of the Trust is real property located at 35 Clay Ridge Road,
Ottsville, PA 18942 (Property). After disagreements between the co-trustees,
“ Retired Senior Judge assigned to the Superior Court.
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Co-trustee Senior petitioned the orphans’ court for authority to unilaterally
sell the Property. The orphans’ court authorized Co-trustee Senior to sell the
Property without Nowicki’s agreement. Co-trustee Senior entered into both
an agreement of sale and a residential lease agreement for the Property with
Appellee.
On December 24, 2019, Nowicki unilaterally filed a complaint on behalf
of the Trust alleging that Appellee breached the lease and seeking to evict
Appellee from the Property. Nowicki claimed that the Trust declaration, which
he attached to his complaint as an exhibit, authorized him to commence this
action.
Appellee filed an answer and new matter, denying the alleged breaches
of the lease and asserted that Nowicki had no authority to file the action
without the support of Co-trustee Senior. Appellee attached copies of the
orphans’ court’s decrees approving the sale of the Property to Appellee and
authorizing Co-trustee Senior to execute documents at closing on behalf of
the Trust without the approval of Nowicki. Appellant filed a reply to the new
matter.
On February 10, 2020, Appellee filed a motion for judgment on the
pleadings. Therein, she argued that according to the terms of the Trust
instrument, Nowicki lacked standing and capacity to bring this action on behalf
of the Trust. Appellee argued that trustees must act unanimously except
where authorized by court decree and that no court decree authorized Nowicki
to unilaterally evict Appellee from the Property. Nowicki responded that he
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had standing because 20 Pa.C.S. § 7763(g) requires a trustee to prevent fraud
and further waste of the Trust assets.
By the order issued February 24, 2020, and entered February 28, 2020,1
the trial court granted Appellee’s motion for judgment on the pleadings and
dismissed the case with prejudice on February 28, 2020.2 Appellant filed a
timely notice of appeal.2 Appellant timely filed a court-ordered Pa.R.A.P.
1925(b) statement, and the trial court filed a responsive opinion.
1 We note that Appellant captioned this appeal as a challenge to the “February
24, 2019” order. See Notice of Appeal, 5/11/20 (emphasis added). However,
the trial court’s order was dated February 24, 2020, docketed on February 27,
2020, and served on February 28, 2020. See Pa.R.A.P. 108(a)(1) (providing
that the date of entry of an order is the day the clerk of court mails or delivers
copies of the order to the parties). We have amended the caption accordingly.
2 The trial court opinion states that it denied Appellant’s second motion for
reconsideration, which was filed on March 17, 2020. Trial Ct. Op. at 5. An
order denying Appellant’s second motion for reconsideration does not appear
on the trial court docket or in the certified record. As a motion for
reconsideration does not toll the appeal period, the absence of an order
denying this motion does not affect the finality of trial court’s February 28,
2020 order granting Appellee’s motion for judgment on the pleadings. See
generally Gardner v. Consol. Rail Corp., 100 A.3d 280, 283 (Pa. Super.
2014).
3 Appellant did not file his notice of appeal until May 11, 2020. However, on
March 16, 2020, the Pennsylvania Supreme Court declared a general,
statewide judicial emergency due to the COVID-19 pandemic. See In re:
General Statewide Judicial Emergency, 228 A.3d 1281 (Pa. filed Mar. 16,
2020) (per curiam). In its subsequent orders, the Supreme Court expanded
the scope and extended the length of the judicial emergency. Further, as is
relevant to the case at bar, the Supreme Court generally suspended “all time
calculations for purposes of time computation relevant to court cases
or other judicial business, as well as time deadlines.” In re: General
Statewide Judicial Emergency, 228 A.3d 1283 (Pa. filed Mar. 18, 2020)
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Appellant raises the following issue for our review: “Did the [trial] court
err[] in granting [Appellee’s] motion for judgment on the pleadings?”
Appellant’s Brief at 4 (Some formatting altered).
Nowicki claims he filed this action to enforce the terms of the residential
agreement after Appellee breached the lease and Co-trustee Senior refused
to enforce it. Id. at 9, 14. Nowicki argues that he has standing to bring this
action pursuant to the Uniform Trust Act, which requires trustees to exercise
reasonable care to prevent a co-trustee from committing a breach of trust
involving fraud or self-dealing. Id, at 10 (citing 20 Pa.C.S. § 7763(g)).
Appellee responds that Nowicki lacks standing and capacity to sue on
behalf of the Trust, because as a co-trustee, he cannot act unilaterally on
behalf of the Trust. Appellee’s Brief at 10-11. Further, Appellee argues that
there is no statute or court order authorizing Nowicki to act unilaterally on
behalf of the Trust to evict Appellee from the Property. Id. at 11-12. Appellee
also contends that under the terms of the Trust instrument, the co-trustees
must act jointly and not singly. Id. at 12-13. Appellee argues that Section
7763(g) only authorizes one co-trustee to initiate an action against another
(per curiam) (emphasis added). As to the general suspension of time
calculations and deadlines, on April 28, 2020, the Supreme Court ordered that
“legal papers or pleadings (other than commencement of actions where
statutes of limitations may be in issue) which are required to be filed between
March 19, 2020, and May 8, 2020, generally shall be deemed to have been
filed timely if they are filed by close of business on May 11, 2020.” In re:
General Statewide Judicial Emergency, 230 A.3d 1015 (Pa. filed Apr. 28,
2020) (per curiam) (emphasis omitted). Therefore, we consider Appellant’s
appeal, which was due on March 30, 2020, and filed on May 11, 2020, as
being timely filed.
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co-trustee for fraud or self-dealing and does not permit one co-trustee to bring
an action for breach of a lease against a third party. Id. at 13-14.
Our standard and scope of review in this matter are as follows:
Entry of judgment on the pleadings is permitted under
Pennsylvania Rule of Civil Procedure 1034, which provides that
“after the pleadings are closed, but within such time as not to
unreasonably delay trial, any party may move for judgment on
the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the
pleadings is similar to a demurrer. It may be entered when there
are no disputed issues of fact and the moving party is entitled to
judgment as a matter of law.
Appellate review of an order granting a motion for judgment on
the pleadings is plenary. The appellate court will apply the same
standard employed by the trial court. A trial court must confine
its consideration to the pleadings and relevant documents. The
court must accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the
pleadings presented by the party against whom the motion is filed,
considering only those facts which were specifically admitted.
We will affirm the grant of such a motion only when the moving
party’s right to succeed is certain and the case is so free from
doubt that the trial would clearly be a fruitless exercise.
Rourke v. Pennsylvania Nat. Mut. Cas. Ins. Co., 116 A.3d 87, 91 (Pa.
Super. 2015) (citation omitted).
This Court has explained:
[i]Jn Pennsylvania, a party seeking judicial resolution of a
controversy must establish as a threshold matter that he
has standing to maintain the action. The core concept of
standing is that a person who is not adversely affected in
any way by the matter he seeks to challenge is not
aggrieved thereby and has no standing to obtain a judicial
resolution to his challenge.
Thus, the inquiry into standing ascertains whether a party is the
proper party entitled to make the legal challenge to the matter
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involved. A person who has no stake in the matter has no
standing to obtain judicial resolution of his challenge to the
matter.
In re Walker, 208 A.3d 472, 475 (Pa. Super. 2019) (citations and footnote
omitted) (some formatting altered), appeal denied, 218 A.3d 856 (Pa. 2019).
Our Supreme Court has explained:
In a general sense, capacity to sue refers to the legal ability of a
person to come into court, and want of capacity to sue has
reference to or involves only a general legal disability, such as
infancy, lunacy, idiocy, coverture, want of authority, or a want
of title in plaintiff in the character in which he or she sues. ... In
substance, as well as in practice, however, the notion of capacity
to sue is extremely amorphous. Indeed, this Court has previously
referred to the blurry distinction between capacity to sue and
standing as a “somewhat metaphysical question.”
In re Estate of Sauers, 32 A.3d 1241, 1248-49 (Pa. 2011) (citations
omitted) (some formatting altered) (emphasis in original).
It is well-established that “where there are two or more trustees of an
estate, all of them constitute but one collective trustee and must act jointly
on a matter which calls for an exercise of discretion or judgment as
distinguished from a matter of a purely ministerial character.” Deviney v.
Lynch, 94 A.2d 578, 581 (Pa. 1953) (citations omitted). The Uniform Trusts
Act “does not allocate or divide co-trustees’ decision-making authority among
the trustees. As is the case regarding most other [Uniform Trusts Act]
provisions, a settlor may provide in the trust document for a regime different
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from this one.” In re Jackson, 174 A.3d 14, 26 (Pa. Super. 2017) (citing 20
Pa.C.S. § 7705).4
Our Supreme Court has previously explained that “[i]f there are several
[co-]trustees, one or more of them can maintain a suit against another to
compel him to perform his duties under the trust, or to enjoin him from
committing a breach of trust, or to compel him to redress a breach of trust
committed by him.” Tracy v. Cent. Tr. Co., 192 A. 869, 870 (Pa. 1937)
(citations omitted) (emphases added).
Section 7763 of Uniform Trusts Act states in relevant part:
(a) Majority decision.—Co[-]trustees who do not reach a
unanimous decision may act by majority decision.
(a.1) When no majority.—When a dispute arises among
trustees as to the exercise or nonexercise of any of their powers
and there is no agreement by a majority of them, unless otherwise
provided by the trust instrument, the court in its discretion, upon
petition filed by any of the trustees or any party in interest...
may direct the exercise or nonexercise of the power as it deems
necessary for the best interest of the trust.
K K K
(g) Reasonable care.—Each trustee shall exercise reasonable
care to:
(1) prevent a co[-]trustee from committing a breach of trust
involving fraud or self-dealing; and
(2) compel a co[-]trustee to redress a breach of trust
involving fraud or self-dealing.
4“The common law of trusts and principles of equity supplement [the Uniform
Trusts Act], except to the extent modified by this chapter or another statute
of this Commonwealth.” 20 Pa.C.S. § 7706.
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20 Pa.C.S. § 7763(a), (a.1), (g).
Based on our review of the record, the parties’ briefs, and the trial
court’s opinion, we affirm on the basis on the trial court’s opinion. See Trial
Ct. Op. at 6-9. Nowicki has not established that he has the standing or
capacity to unilaterally bring a civil action against Appellee on behalf of the
Trust in the absence of Co-trustee Senior’s agreement or a court order. See
Rourke, 116 A.3d at 91; Deviney, 94 A.2d at 581; 20 Pa.C.S. § 7763(a.1).
For these reasons, we discern no error by the trial court in granting Appellee’s
motion for judgment on the pleadings and dismissing the complaint with
prejudice. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 3/19/21
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IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
THE FRANCES J. NOWICKI TRUST, : No. 2019-08819
BY ALLAN J. NOWICKI, TRUSTEE : nit |
. BORE
Case # 2019-08819-0062 12631658
ain (Public)
KATHERINE E. RIGHTER cose S214 jatson0 11:42:98 AM
OPINION
This is an appeal purportedly by the Frances J. Nowicki Trust by Co-
Trustee Allan J. Nowicki, (hereinafter “Nowicki”) from our Order entered on
February 24, 2020, granting tenant, Katherine E. Righter’s (hereinafter “Righter”)
Motion for Judgment on the Pleadings for Lack of Standing or Capacity to Sue.
BACKGROUND
The current action arises out of a Trust (hereinafter “the Trust”) executed
by Frances J. Nowicki (hereinafter “Settlor”) on December 31, 2010. The Trust
appointed Allan J. Nowicki and Mary Frances Senior (hereinafter “Co-Trustee
Senior”) as Co-Trustees. Pursuant to the terms of the Trust, Settlor conveyed her
real property located at 35 Clay Ridge Road, Ottsville, PA 18942 (hereinafter “the
Property”) to the Co-Trustees. Settlor died on March 1, 2017, making the Trust
irrevocable.
Due to disagreements amongst the Co-Trustees concerning the disposition
of the Property, Co-Trustee Senior petitioned the Orphans’ Court Division of the
Bucks County Court of Common Pleas (hereinafter the “Orphans Court”), for
relief to authorize the marketing and sale of the Property (Bucks County Court
1
of Common Pleas Orphans’ Court Docket 2018-E0156) which resulted in a
decree on August 24, 2018. The Orphans Court authorized a listing agreement
for the Property and ordered that:
a. “In the best interest of the Trust, the Petition seeking an Order of
Court exercising the power of the Trustees to sell real estate filed by
the Petitioner, Mary Senior, is granted pursuant to 20 Pa. C.5.A. §
7763(a)}(a.1) as no agreement can be reached by the Co-Trustees
concerning the sale and disposition of the Property.”
b. “The Trustees shall sign a listing agreement for the sale of the
Property within thirty (30) days of the date of this Decree.”
c. “The Trustees are further ordered to take reasonable steps to
effectuate the Property’s sale for a just price to a responsible, ready,
and able. buyer. The Trustees shall also engage with one another in
a cooperative and respectful manner.”
Upon consideration of the subsequent. Petition to Enforce the Decree of
August 24, 2018, filed by Co-Trustee Senior, the Orphans Court issued another
Decree on November 14, 2018. The Orphans Court authorized an agreement of
sale and found that:
a. “Mary Senior and Allan J. Nowicki are unable to come to an
agreement with respect to effectuating the sale of the Property.”
b. “In the best interest of the Trust, the listing contracts signed by
Petitioner are valid, enforceable, and binding upon the Trust. The
Trust, by and through co-trustee Mary Senior, may proceed to
2
sell the Property without the agreement of Allan J. Nowicki, with
final approval of sale by the Court.”
On April 26, 2019, pursuant-to the Decree of August 24, 2018, Co-Trustee
Senior, as seller and Trustee, signed an agreement of sale that conveyed the
Trust’s right, title, and interest in the Property to Righter. Righter, as buyer,
signed the agreement on April 28, 2019.
Settlement was to be June 17, 2019 but was subsequently postponed to
August 21, 2020.
Upon consideration of the subsequent Amended Petition to Approve
Agreement of Sale and Conservation Easement filed by Co-Trustee Senior, the
Orphans Court approved the purchase of the premises to Righter by decree on
July 5, 2019. The Orphans Court gave Co-Trustee Senior unilateral power to
execute any documents at closing and held:
a. “the Agreement of Sale and the proposed sale of the. conversation
easement are hereby approved;”
b. “we find that the sale of the property to prospective buyer
Katherine Righter proposed by Co-Trusteé Mary Senior pursuant
to this. Court’s November 14, 2018 Order is reasonable and in the
best interest of the Trust;” and
c. “Co-Trustee Mary Senior is authorized to execute any documents
at closing on behalf of the Frances J. Nowicki Trust without the
joinder er approval of Co-Trustee Allan Nowicki.”
On October 1, 2019, the Frances J. Nowicki Trust, through Co-Trustee
Senior, entered into a lease agreement with Righter. The lease agreement
referencing the July 5, 2019 Decree, authorized Mary Senior to execute closing
documents unilaterally and acknowledged Righter as the equitable owner of the
Leased Premises.
On December 24, 2019, purporting to represent the Frances J. Nowicki
Trust, Nowicki unilaterally filed the Complaint against Righter to evict her from
the Property, alleging various non-monetary breaches of the Lease.
On January 10, 2020, Righter filed an Answer, denying that. Nowicki had
authority to file the action and denying the alleged breaches of the lease. On
January 16, 2020, Nowicki filed a Reply, arguing that the decrees from the
Orphans’ Court of Bucks County had been appealed to the Superior Court.
However, Nowicki has since discontinued his appeal and the Superior Court filed
an Order Granting Application for Discontinuance on April 27, 2020 (Superior
Court Docket No. 2184 EDA 2019).
On February 10, 2020, Righter filed a Motion for Judgment on the Pleadings
for Lack of Standing or Capacity to bring the-current action. Upon consideration
of Righter’s Motion for Judgment on the Pleadings, any other relevant pleadings,
and Nowicki’s response thereto, we entered an Order dismissing the case with
prejudice on February 24, 2020, docketed on February 28, 2020.
Nowicki proceeded to file a Motion for Reconsideration of our February 24,
2020 Order on February 28, 2020. He then proceeded to file an Amended Motion
for Reconsideration on March 4, 2020. Upon review of his Motions for
4.
Reconsideration, we entered an Order denying the motions on March 5, 2020,
docketed on March 11, 2020. Nowicki then proceeded to file another Motion for
Reconsideration of our Order dated March 17, 2020, of which we also denied.
This appeal followed.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
As a result of Nowicki’s Notice of Appeal, we subsequently issued a 1925(b)
Order on June 1, 2020, docketed on June 4, 2020. This Order provided that
Nowicki was to submit a Statement of Matters Complained of on Appeal within
twenty-one days of the date of the Order. Nowicki submitted a timely Concise
Statement on June 22, 2020. We have quoted it below verbatim:
“1. The Trial Court erred in Granting Defendant’s Motion for
Judgment on the Pleadings for Lack of Standing or Capacity to Bring
this Action because: Co-Trustee, Allan J. Nowicki had standing
pursuant to Pennsylvania Code Title 20 Decedents, Estates and
Fiduciaries, Chapter 7'7-Trusts, 7763-Cotrustees-UTC 703 (g)
Reasonable care. Each trustee shali exercise reasonable care to:
{1) prevent a co-trustee from committing a breach of trust
involving fraud or self-dealing; and
(2) compel a co-trustee to redress a breach of trust involving
fraud or self-dealing.
2. Appellant hereby incorporates by reference, as if fully set forth
herein Plaintiff's Motion(s) for Reconsideration in further support of
the Errors Complained of on Appeal.”
DISCUSSION
JUDGMENT ON THE PLEADINGS
The first issue before the Court is whether we erred in granting Righter’s
Motion for Judgment on the Pleadings because Nowicki had no legal standing to
pursue this action on behalf of the Trust.
When “reviewing a trial court's decision granting a motion for judgment on
the pleadings, the appellate court's scope of review is plenary; the appellate court
will apply the same standard employed by the trial court.” Kelly v. Nationwide
Ins. Co., 414 Pa.Super. 6, 606 A.2d 470 (1992).
Pursuant to Pa. R.C.P. 1034, “after the relevant pleadings are closed, but
within such time as not.to unreasonably delay the trial, any party may move for
judgment on the pleadings.” A court should “grant.a motion for judgment on the
pleadings where the pleadings demonstrate that no genuine issue of fact exists,
and that the moving party is entitled to judgment as a matter of law.” McAllister
v. Millville Mut. Ins. Co., 433 Pa. Super. 330, 334, 640 A.2d 1283, 1285 (1994).
Furthermore, “a trial court must confine its consideration to the pleadings and
relevant documents and accept as true all well pleaded statements of fact,
admissions, and any documents properly attached to the pleadings presented by
the party against whom the motion is filed. The court may grant judgment on
the pleadings. only where the moving party's right to succeed is certain and the
case is so free from doubt that the trial would clearly be a fruitless exercise.”
Fowkes v. Shoemaker, 443 Pa. Super. 343, 346, 661 A.2d 877, 878 (1995).
The current issue at hand is whether, based on the pleadings, Nowicki
even had standing to bring this action in the first place. We assert that he does
not.
Generally, for a party to have standing to sue “there [must be] a legitimate
controversy if the proponent of a legal action has somehow been ‘aggrieved’ by
the matter he seeks to challenge.” In re Hickson, 573 Pa. 127, 136, 821 A.2d
1238, 1243 (2003), Local 22, Phila. Fire Fighters’ Union, ete. v. Commorniveaith,
531 Pa. 334, 340, 613 A.2d 522, 525 (1992). Likewise, “a party who is not
negatively affected by the matter he seeks to challenge is not aggrieved, and thus,
has no right to obtain judicial resolution of his challenge.” City of Philadelphia v.
Com., 575 Pa. 542, 559-60, 838 A.2d 566, 577 (2003). A lack of capacity to sue
exists where “there is some personal disability to bring suit by some statute or
by reason that the plaintiffis not sui juris.” Martz v. Gibson, 5 Pa. D & C.2d 227,
228-29 (C.P. 1955).
Specifically, where a litigant is bringing an action as a co-trustee on behalf
of a trust, the co-trustees must act in agreement. “As a general proposition of
law, where there are two or more trustees of an estate, all of them constitute but
one collective trustee and must act jointly on a matter which calls for an exercise
of discretion or judgment as distinguished from a matter of a purely ministerial
character.” Deviney v. Lynch, 372 Pa. 570, 576, 94 A.2d 578, 581 (1953),
Dorrance's Estate, 333 Pa. 162, 166, 3 A.2d 682, 684 (1939). It is well-settled
that “[co-trustees] must, therefore, execute the duties of the office in their joint
capacity.” Vandever's Appeal, 8 Watts & Serg. 405, 409 (Pa. 1845).
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Under 20 Pa.C.S. § 7763(a) “co-trustees who do not reach a unanimous
decision may act by majority decision.” However, “when a dispute arises among
trustees as to the exercise or non-exercise of any of their powers and there is
no agreement by a majority of them, unless otherwise provided by the trust
instrument, the court in its discretion, upon petition filed by any of the
trustees or any party in interest...may direct the exercise or non-exercise of the
power as it deems necessary for the best interest of the trust.” (a.1). This
statute “does not allocate or divide co-trustees' decision-making authority
among the trustees.” In re Jackson, 2017 PA Super 350, 174 A.3d 14, 26
(2017).
Here, Nowicki has attempted to bring this lawsuit without the consent of
his fellow co-trustee. In order to bring an action on behalf of the trust, Nowicki
and Co-Trustee Senior must act collectively and unanimously. Senior has
intervened in this action and has expressly opposed Nowicki’s suit. Nothing in
the Trust itself gives Nowicki the power to unilaterally commence an action on
behalf of the Trust. Co-Trustee Senior, who already litigated the interpretation
and implementation of the Trust in the Orphans Court of Bucks County, was
given the power by the Orphans Court to do whatever is necessary to execute
the sale of the Property, as it is in the best interest of the Trust.
While Nowicki appealed the Orphans Court Order granting her that power,
he has withdrawn his appeal. Nowicki’s current action is merely an attempt by
Nowicki to circumvent the Orphans Court Order and to quash the sale of the
Property, essentially attempting to scare off this buyer with continued litigation.
8
Moreover, no court decree has authorized Nowicki to act unilaterally to evict
Righter from the very Property in which the Orphans Court authorized Righter
to possess.
In an attempt to reassert his position, Nowicki has cited law generally
guiding the duties: of co-trustees. However, the provisions cited by Nowicki are
largely irrelevant to the issue at hand, nor did they provide any guidance for our
decision.
Therefor Nowicki lacks standing to bring this action on behalf of the Trust.
MOTION FOR RECONSIDERATION
The second issue before the Court is whether we erred in denying Nowicki’s
Motion(s) for Reconsideration. We assert that Nowicki has waived this issue by
failing to comply with requirements under Pa.R.A.P. 1925.
Pursuant to the requirements under 1925(b)(4)(ii) “the Statement shall
concisely identify each error that the appellant intends to assert with sufficient
detail to identify the issue to be raised for the judge.” “An appellant cannot
satisfy the requirements of Rule 1925(b) by incorporating by reference the
arguments contained in other filings.” Stephens v. Smith, 2016 Phila. Ct. Com.
Pl. LEXIS 206, 13-14. citing Commonwealth v. Dodge, 2004 PA Super 338, 859
A.2d 771, 774, vacated on other grounds, 594 Pa. 345, 935 A.2d 1290 (2007).
“We do not condone Appellant's incorporation by reference of other documents
in his 1925(b) statement. A 1925(b) staternent should include a concise
statement of each issue to be raised on appeal without reference to other
documents.” Dodge, 859 A.2d at 774.
Likewise, Nowicki fails to comply with the concise yet sufficiently detailed
requirement under 1925(b)(4)(ii). Pursuant to 1925(b)(vii), “issues not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”
The purpose of the Pa.R.A.P, 1925(b) statement “is. to specify the particular
issues which appellant intends to present on appeal in order to permit the ‘trial
court an opportunity to provide the appellate court with a focused and
meaningful explanation for any challenged actions in its Pa.R.A.P.
1925(a) opinion.” Commonwealth v. Osteen, 381 Pa. Super. 120, 124, 552 A.2d
1124, 1126 (1989). When “a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review...and when an appellant fails
adequately to identify in a concise manner the issues sought to be pursued on
appeal, the trial court is impeded in its preparation of a legal analysis which is
pertinent to those issues.” Lineberger v. Wyeth, 2006 PA Super 35, J 16-17, 894
A.2d 141, 148. Moreover, “a Concise Staterment which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of ne
Concise Statement at all.” Commonwealth v. Dowling, 2001 PA Super 166, 4 9,
778 A.2d 683, 686-87.
Here, in Nowicki’s Concise Statement of Matters Complained of on Appeal,
he attempts to incorporate by reference his prior Motion(s) for Reconsideration.
Previous courts have held that incorporation of outside documents in an
appellant’s Concise Statement of Matters Complained of on Appeal is not a
10
proper procedure for raising those issues. Additionally, unlike in Osteen and
Dodge, where the courts were able to identify the issues raised on appeal because
of the record, here we could not do the same because the issues were not detailed
enough. Nowicki did not cite to any specific argument from his prior filings or
direct us to any specific pages or paragraphs. Even if we could riddle our way
through Nowicki’s Motion(s) for Reconsideration, he asserts arguments that are
largely incohérent and irrelevant. Nowicki’s Motion(s} for Reconsideration largely
attermpt to implore us to change the prior Orphans Court decisions, alleging that
his Co-Trustee has acted fraudulenthy. We have no power or jurisdiction in this
current action to modify or rescind any Order(s) issued by the Orphans Court.
Without any direction as to where he is alleging that we actually erred, it is
impossible for us to guess what he is actually appealing here, and therefore this
issue should be waived.
However, should this Court not find that this issue is waived, we will briefly
address the merits of Nowicki’s Motion for Reconsideration.
The standard of review of a motion for reconsideration “is limited to
whether the trial court manifestly abused its discretion or committed an error of
law.” Dahl v. AmeriQuest Mortg. Co., 2008 PA Super 142, 7 10, 954 A.2d 588,
593 (2008).
A motion for reconsideration “is addressed to the sound discretion of the
trial court.” Moore v. Moore, 535 Pa. 18, 634 A,2d 163, 166 (1993). It is well
established that “a court upon notice to the parties may modify or rescind any
order within thirty days after its entry ... if no appeal from such an order has
Ll
been taken or allowed.” 42 Pa.C.S.A. § 5505. Additionally, “under section 5505,
the trial court has broad discretion to modify or rescind an order, and this power
may be exercised sua sponte or invoked pursuant to a party's motion for
reconsideration.” Haines v. Jones, 830 A.2d 579, 584 (Pa.Super.2003).
Additionally, “the trial court no longer has the power to act on a motion for
reconsideration when it fails to issue an order expressly granting the motion
within the time prescribed for seeking review. Lichtman v. Glazer, 111 A.3d 1225,
1230 (Pa. Comwith. Ct. 2015). Here, we decided to deny Nowicki’s motion(s) for
reconsideration because they lacked merit.
Therefore, we were under no obligation to grant Nowicki’s Motion for
Reconsideration and did not err by refusing to do so.
CONCLUSION
For the reasons stated above, Nowicki’s appeal should be quashed or
denied.
BY THE COURT:
7-227 QO
DATE JAMES M.'MCMASTER, J.
N.B. It is your responsibility
to notify all interested parties
of the above action. i
COPIES SENT TO :
Andrew Douglas Cotlar, Esq.
23 West Court Street
Doylestown, PA 18901
David L, Marshall, Esquire
PO Box 1389
60 E Court St
Doylestown, PA 18901-4337
Allan J. Nowicki
PO Box 238
Erwinna, PA 18920
Counsel for Katherine Righter
Counsel for Mary Senior
Pro Se Plaintiff