Addison Terrace Phase 4 v. Hunter, M.

• Court: Superior Court of Pennsylvania
• Decided: October 23, 2020
• Docket: 1430 WDA 2019
• Status: Unpublished

Opinion

J-A14015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ADDISON TERRACE PHASE 4, L.P. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK A. HUNTER : : Appellant :

MARK HUNTER : : Appellant : : : v. : : : KBK ENTERPRISES : No. 1430 WDA 2019

Appeal from the Order Entered August 29, 2019 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 19-004265 GD 19-005486

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 23, 2020

Appellant, Mark A. Hunter, appeals pro se from the August 29, 2019

order granting the Motion to Enforce Settlement Agreement filed by Appellee,

Addison Terrace Phase 4, L.P.1 After review, we quash the appeal.

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1The caption in this case has been corrected to reflect that Appellant’s appeal was from two dockets, GD-19-005486 and GD-19-004265. J-A14015-20

The trial court set forth the following:

This action arose due to [Appellant’s] incursion onto neighboring property, owned by [Appellee]. [Appellant’s] property was immediately adjacent to [Appellee’s] property, upon which the construction of a housing development was taking place. Appellant had allegedly placed old vehicles upon [Appellee’s] property and taken measures to delay the construction. Therefore, [Appellee] filed a Motion for Preliminary Injunction in April, 2019.

Argument of [Appellee’s] said Motion was held on April 15, 2019, before the Honorable Patrick M. Connelly. [Appellant] was represented by Daniel Stoner and Vincent Roskovensky represented [Appellee]. A transcript of the proceeding was made. No determination regarding the granting of the Motion was made on that date and the Argument was to continue at 11:00 a.m., the next day. The docket indicates that on April 17, 2019, the Judge entered an Order by which [Appellee] withdrew its Motion. Filings demonstrate that while [Appellee] believed that the parties had reached an Agreement to purchase [Appellant’s] property, [Appellant] refused to sign an Agreement because he did not want to pay the real estate transfer tax. His counsel, Daniel Stoner, withdrew his appearance on [Appellant’s] behalf. On August 29, 2019, this [c]ourt was hearing general Motions. It was presented by [Appellee] with a Petition to Enforce Settlement Agreement. [Appellant] did not appear and filed no written response to said Petition. Therefore, this [c]ourt granted Appellee’s Petition to Enforce on that date.

Memorandum in Lieu of Opinion, 11/15/19, at 1-2.

By way of further background, Appellee’s initial action was filed at trial

docket number GD-19-005486 (“No. 5486”). In March of 2019, Appellant filed

a complaint against KBK Enterprises (“KBK”), the general partner of Appellee,

seeking various forms of injunctive relief against KBK at trial court docket

number GD-19-004265 (“No. 4265”). It appears no action was taken

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regarding Appellant’s complaint until the trial court filed its August 29, 2019

order granting Appellee’s motion to enforce settlement. In addition to

granting enforcement of the settlement agreement and setting forth the

procedure by which enforcement would be effectuated, the August 29, 2019

order also discontinued, with prejudice, the litigation Appellant filed against

KBK at No. 4265. Order, 8/29/19, at 11, ¶ 5. The certified record before us

demonstrates that the caption of the August 29, 2019 order from which

Appellant purports to appeal lists both No. 4265 and No. 5486.

Before we reach the merits of Appellant’s appeal, we must determine

whether the notice of appeal filed by Appellant satisfies the dictates of

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (requiring separate

notices of appeal for each lower court docket). In Walker, our Supreme

Court held that “in future cases Rule 341(a) will, in accordance with its Official

Note, require that when a single order resolves issues arising on more than

one lower court docket, separate notices of appeal must be filed. The failure

to do so will result in quashal of the appeal.” Walker, 185 A.3d at 977.

On September 13, 2019, Appellant filed a single notice of appeal. The

notice is comprised of a cover sheet and a notice of appeal. The cover sheet

lists No. 5486, and the notice of appeal lists No. 4265. Appellant also attached

a copy of the August 29, 2019 order from which he wishes to appeal, which

adds to the confusion surrounding his notice. Although the substance of the

order attached to Appellant’s notice of appeal appears to be a photocopy of

the August 29, 2019 order, there is one significant discrepancy between that

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order and the August 29, 2019 order contained in the certified record on

appeal: The order attached to Appellant’s notice of appeal lists only No. 5486,

yet the order contained in the certified record lists both No. 5486 and No.

4265. Although we will not venture to guess why the order attached to

Appellant’s notice of appeal does not match the August 29, 2019 order

contained in the certified record with respect to the docket numbers listed in

the caption, suffice it so say that we may only consider the certified record

before us. Richner v. McCance, 13 A.3d 950, 957 n. 2 (Pa. Super. 2011).

Appellant’s notice of appeal documents are inconsistent with the mandate of

Walker. Consequently, we quash this appeal for noncompliance with Walker.

We further note that Appellant purports to raise a sufficiency-of-the-

evidence challenge in his brief. Specifically, Appellant avers that the evidence

was not sufficient to support the trial court’s order enforcing the settlement

agreement. Appellant did not raise this issue in his court-ordered Pa.R.A.P.

1925(b) statement.2 Concise Matter of Statement, 9/19/19. Therefore, even

if we did not quash this appeal due to Appellant’s Walker violation, Appellant

would have waived this issue for failure to raise it in his Rule 1925(b)

statement. Greater Erie Indus. Development Corp. v. Presque Isle

2 On September 19, 2019, the trial court ordered Appellant to file a concise statement of errors complained of on appeal within twenty-one days of the date of the order pursuant to Pa.R.A.P. 1925. Order, 9/19/19. Appellant filed a statement that same day, but the statement did not identify any errors on the part of the trial court and instead contains facts and legal arguments regarding the allegedly illegal and fraudulent conduct of Appellee relating to the settlement agreement. Concise Matter of Statement, 9/19/19.

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Downs, 88 A.3d 222, 224 (Pa. Super. 2014) (“Our Supreme Court intended

the holding in [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate

as a bright-line rule, such that ‘failure to comply with the minimal

requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the

issues raised.’”)(emphasis in original).

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/23/2020

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