Circulated 04/21/2023 05:24 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY, PA CIVIL DIVISION — LAW
BT MANAGEMENT, LCC : No. C- 48- CV- 2014-03772 Plaintiff
VS
7065-A WILLIAM PENN HIGHWAY, LLC ry y Cr Defendant
PENNSYLVANIA RULE OF APPELLATE PROCEDURE 192S&?) MEMORANDUM OPINION
The parties are limited liability companies. Plaintiff BT Management,
LLC, is apparently owned and controlled by its managing member, Dr.
Bruce Thaler. We were informed by counsel that Dr. Thaler was a
practicing dentist, with his office and residence located in the Altoona,
Pennsylvania area. Counsel represented that Dr. Thaler also engaged in
commercial real estate and development as a second business interest.
We were also informed that Defendant 7065-A WILLIAM PENN HIGHWAY,
LLC was principally owned by Edwin and Kathryn Novak, an elderly couple
who had a history of investing in real estate. Mr. Novak was the
managing member of the Defendant LLC until his death in 2019. Mrs.
Novak is now the managing member of Defendant.
The triggering Order which brings about this appeal was dated
February 14, 2022 and docketed on February 15, 2022. In that Order we
entered a nonsuit for the failure of Plaintiff to present any evidence during the trial which concluded on September 21, 2020, The February 14, 2022
Order was entered after remand from the Superior Court.
On February 24, 2022, Plaintiff filed a motion for post- trial relief
asserting that our entry of a non- suit was ( apparently) an abuse of
discretion.
On March 21, 2022, we filed an Order with a Statement of Reasons
denying Plaintiff's post- trial motion.
On April 18, 2022, Plaintiff filed a Notice of Appeal to aseries of
interim orders entered under this docket number, specifically orders cited in
the notice of Appeal are dated July 9, 2029, July 22, 2019, July 15, 2020,
September 2]., 2022, September 22, 2020, and March 21, 2022. However,
we believe that the Plaintiff has misidentified by date some of the orders
under appeal as there were no Orders entered on July 22, 2019 or July 15.
2020. One of the targeted orders should have been designated as July 22,
2020. Finally, Plaintiff did not list the February 14, 2022 Order in which we
entered the nonsuit.
On April 28, 2022 we requested a ]. 925(b) statement of matters
complained of on appeal.
On May 18, 2022, Defendant filed his Statement of matters
However, in an effort to give context to this dispute, we must provide
asummary of the factual history to this dispute.
2 This matter involves a failed real estate development project regarding
a parcel of land located at, and known as, 7065-A William Penn Highway,
Easton, Pennsylvania ( hereinafter referred to as " the property"). In 2011,
the parties entered into the first of three purported contracts for the sale of
three separate parcels that were to be carved out of the property, with the
intended purpose of erecting commercial buildings on each parcel. The
parties refer to the separate parcels as the " Sheetz Pad," the " Embassy
Pad," and the " McDonalds Pad," respectively. Later, Plaintiff alleges that
Defendant agreed to provide an option for afourth, unidentified parcel from
the subdivision.
Apparently, for aconsiderable time, the parties discussed and
cooperated with the subdivision process. However, it is also apparent that
the parties' relationship deteriorated; and, the eventual failure to obtain
subdivision approval generated this lawsuit.
On April 24, 2014, Plaintiff BT Management, LLC (" BTM") filed a
Complaint against WPH and asserted eight claims: Count I - Breach of
Contract seeking Specific Performance regarding Amended Sheetz Pad
Agreement of Sale dated July 3, 2012; Count II - Breach of Contract seeking
Money Damages regarding both original Sheetz Pad Agreement of Sale dated
July 6, 2011 and the Amended Sheetz Pad Agreement of Sale dated July 3,
2012); Count III - Breach of Contract seeking Specific Performance
regarding Embassy Pad Agreement of Sale dated April 23, 2012; Count IV -
3 Breach of Contract seeking Money Damages regarding Embassy Pad
Agreement of Sale dated April 23, 2012; Count V - Breach of Contract
seeking Specific Performance regarding McDonald's Pad Agreement of Sale
dated March 12, 2013; Count VI - Breach of Contract seeking Money
Damages regarding McDonald's Pad Agreement of Sale dated March 12,
2013; Count VII Breach of Contract seeking Specific Performance for First
Ratification Agreement ( unwritten and undated); Count VIII") - Breach of
Contract seeking Specific Performance regarding Second Ratification
Agreement ( unwritten and undated). See Complaint at 14-20.
VVe should note that the Agreements referred to as the original Sheetz
Pad dated .July 6, 201.1 and the Embassy Pad dated April 23, 2012 were
signed by Mr, Thaler and Mr. Novak; however, the Amended Sheetz Pad
agreement and the McDonald's Pad agreement were signed by Mr. Thaler
and a person known as Lou Pektor, III. Mr. Pektor is apparently a local
developer who at: various points may have acted as mediator or a " go-
between" the parties, but was unrelated to Defendant 7065-A William Penn
Highway, LLC, as Mr. Pektor was not an owner, managing member, or
employee of Defendant.
We also note that the alleged " Ratification Agreements" were not
written or signed by either of the parties. The First Ratification Agreement
was alleged to be captured in a series of emails between third parties. See
Complaint pp. 12 - 13 and Exhibit 5. The Second Ratification Agreement was
4 allegedly discussed in a conference call. See Complaint at 13 - 14. Further,
based upon the allegations in the complaint "... Novak, again refused to
ratify the three existing Agreements of Sale or sign the amendments on
behalf of Defendant 7065-A..." See Complaint ¶ 75. In fact, " Novak
demanded further concessions...." See Complaint ¶ 77.
On July 9, 2019, Judge McFadden dismissed BTM's specific
performance claims, or Counts I, III, V, VII, and VIII, on the grounds that
BTM could not prove an adequate description of the properties it sought to
be conveyed through specific performance. See Order of Court, July 9,
2019. Thus, only Counts II, IV, and VI for money damages remained in the
instant case.
Judge McFadden placed this matter onto the December 2019 jury trial
list. However, the matter was continued from the December list to the
March 202..0 jury trial list. In the interim, Judge McFadden retired from the
bench.
On February 11, 2020, the President Judge reassigned the above-
captioned matter to the undersigned.
We scheduled a March 4, 2020 pretrial conference with counsel.
During the pretrial conference, Defendant's counsel indicated there were
several outstanding pretrial issues that needed to be addressed related to
the failure of Plaintiff to identify any expert witness on damages and a
dispositive Motion in L.imine, which Defendant: intended to file on the
5 morning of trial seeking to preclude the remaining causes of action. In
response, counsel for Plaintiff indicated that they did not intend to call an
expert witness to address damages, that damages would be addressed by
the BT's managing agent, Bruce Thaler. Dr. Thaler is both adentist and a
land developer. As far as the anticipated dispositive Motion, we suggested
acontinuance of the March 9, 2020 trial and allow the Defendant to pursue a
motion for summary judgment, so that we would have an opportunity to
properly analyze the issues.
Ultimately, on March 9, 2020, we entered an Order with the
agreement of Plaintiff and the reluctant agreement of Defendant, who voiced
significant frustration over the fact that the case had been languishing for
such a long time. In our Order, we directed that the parties file any
additional motions for summary judgment and/or motions in limine to
preclude testimony no later than April 23, 2020; argument on the dispositive
motions was set for May 26, 2020; we required the parties to refine their
pretrial statements with regard to the identification of witnesses; and we
rescheduled the trial for the Civil Jury Term of September 21, 2020, with
warning to the parties that we expected that we would grant no further
continuances absent exigent circumstances. Our order also directed
counsel meet: to review the deposition of Edwin G. Novak, the managing
agent for Defendant LLC, who sat for a deposition but had since died. We
6 required counsel to identify any objections to the admission of Mr. Novak's
deposition with regard to the " dead man's rule".
Shortly after our March 9, 2020 conference, Northampton County was
briefly shut down for jury trials by the Administrative Order of the President
Judge due to the COVID 19 Emergency. The suspension of jury trials
included the months of March through June 2020.
On April 28, 2020, Defendant filed for summary judgment seeking the
dismissal of the remaining counts. The matter was set for Argument on May
26, 2..020. Thereafter, Defendant filed a reply brief on June 8, 2020.
On June 8, 2020, the President Judge entered an Administrative
Order opening up jury trials in Northampton County beginning in July
2020, The Order provided for significant COVID-19 safety protocols,
including masking of all participants and appropriate social distancing
including the jurors throughout jury selection and trial.
In the interim, counsel timely file
On July 1.5, 2020, we entered an order granting Defendants' Motion to
Preclude Expert Testimony on the issue of damages and we granted partial
summary judgment dismissing Counts IV and VI of Plaintiff's Complaint, as
both contracts purported to convey real estate, but the owner of the real
estate did not sign either contract. Thus, we allowed only Count II - Breach
of Contract for Money Damages related to the lot identified as the
anticipated location for a Sheetz Gas Station/Convenience Store to go to
7 trial. We also precluded the admission of hearsay documents and opinion
testimony from alleged fact witnesses - a realtor and an accountant - with
regard to the issue of Plaintiff's money damages. The realtor and
accountant: were never identified as expert witnesses, not did either author a
report. Further, neither proffered witness had direct involvement with the
underlying dispute.
Interestingly, Plaintiff's theory for liability was that the Defendant
LLC intentionally subverted the approval process to defeat the sale of the
lot to Plaintiff, by deficient effort or intentional lack of effort, which
constituted breach of contract. It appeared to be aconvoluted and
difficult burden to prove the breach, but on its face the claim could
possibly be meritorious. An additional burden of proof issue existed as
Plaintiff did not identify or provide a report from an expert witness to
address either liability or money damages. Plaintiff's sole witness on the
issues of liability and money damages was the managing member of BT
Management, LLC, Dr, Bruce Thaler. Further, based upon counsels'
representation, the Township representatives were expected to be called
by the Defendant to establish the action taken by the township to deny
subdivision approval. Thus, it appeared to be ashort trial, with very
limited testimony by Plaintiff.
Docket/judicial activity was dormant from July 15, 2020 until
September 8, 2020, when we received a letter faxed to our judicial office
8 from counsel for Plaintiff alleging that Dr. Thaler was requesting a
continuance due to his concerns over contracting COVID-19. Counsel did
not file a motion or provide acontinuance form as required by
Northampton County Local Rules, which form required a signed response
by opposing counsel. The letter asserted various facts not of record and
directly asked the Court to take action by granting relief. The request was
off the record and wholly improper as ex-parte communication ( even
though the letter noted that acopy was sent to opposing counsel,
providing acopy to counsel did not excuse the impropriety of the
communication).
In reaction to the letter and because this was a major case
assignment scheduled for trial, we immediately conducted a telephone
conference with counsel. Defense counsel vociferously objected to the
continuance request indicating that his clients were elderly and had the
same concerns regarding Covid exposure as Plaintiff; further, Defendant's
counsel asserted prejudice to his elderly client who needed closure to this
long drawn out dispute related to resolving her financial situation in order
to plan for the distribution of her estate. Therefore, counsel argued that
the continuance was prejudicial to his client.
In r^esponse to Dr. Thaler's concern, we indicated to counsel that
Northampton County was very protective with regard to its COVID-19
protocols. We further noted that everyone who would be involved in this
9 trial shared the same concerns as Dr. Thaler regarding Covid exposure,
including the parties, counsel, the court, all courtroom and courthouse
staff, and perhaps most importantly all jurors who were summoned to the
courthouse to participate in this trial. We also assured Plaintiff's counsel
that we would endeavor to accommodate Dr. Thaler by limiting his social
contacts at the; Courthouse. Plaintiff's counsel seemed satisfied with our
assurances.
Can Friday prior to Monday's jury selection, September 18, 2020,
counsel appeared before the undersigned for afinal conference. At that
time, Plairtiff's counsel presented aformal motion for continuance, which
counsel styled as a " renewed" request for continuance with a proposed
order. We note that the motion referenced Dr. Thaler's concern for his
adult children, referenced as aged 28 ( Mark) and 31 ( Brittany). We briefly
inquired C -)nd , learned from counsel that Dr. Thaler's children hold advanced
educational degrees and are professionally employed. No reference was
made as to where Dr. Thaler's adult children live or their marital status.
The Motion also attached as an exhibit a letter dated September 17, 2022
which was written by Aimee Lestrange, CPNP, bearing a MedStar Health
letterhead and a street address in Washington D.C. The letter was
addressed to Mark Thaler in care of his apparent home address at 2123
12th Place NW, Washington DC. Nurse Lestrange's letter referenced that
Mark Thaler had past surgery ( no date provided) for inflammatory bowel
10 disease and that due to his ongoing treatment and related
"immunosuppression" concerns Nurse Lestrange was recommending that
Mark Thaler should not appear in court " as an advisor." [ We note that the
Younger Mr. Thaler was not listed as atrial witness.] Further, Nurse
Lestrange noted that if his father [ Dr. Thaler] did attend trial, "... it would
be recommended that [ they] remain apart for a period of quarantine."
As an aside, we were also led to believe that Dr. Thaler's dental
practice was an ongoing, active practice; therefore, we could only assume
that Dr. Thaler was interacting with his staff and patients throughout
Covid.
Again, Defendant's counsel opposed the late request, noting that he
had witnesses lined up to appear and further, that his elderly client was
also fearful of contracting Covid, but that he and she were satisfied that
the President Judge's protocols were very reasonable; therefore, Mrs.
Novak intended to be present and participate throughout the entire trial.
We again assured Plaintiff's counsel that we would do everything
possible to limit Plaintiff's exposure, including excusing Plaintiff from jury
selection on Monday and after opening statements and what we assumed
would be Plaintiff's immediate testimony as the first witness, we would
excuse Plaintiff from participating any further in the trial after the
completion of his testimony. Thus, Plaintiff merely had to walk from his
car Into our Courtroom, sit at counsel table to be called as a witness and
11 then leave the Courthouse without directly interacting with any additional
people. Plaintiff's counsel seemed to be satisfied with our efforts.
Ultimately, we were unimpressed with the alleged emergency request.
Therefore, after consultation with counsel, we denied the continuance
request and wrote on the attached proposed order that we denied the
request. We then returned the documents to counsel. Apparently,
Plaintiff's counsel did not to file his pleading seeking a continuance, nor
our written denial that day.
Counsel for the respective parties ( and Mrs. Novak) appeared for
jury selection on Monday, September 21, 2020. We then picked our jury
and swore the jury in to return the next day to commence trial. The next
day we reconvened at 8:30 a.m. to conduct opening statements.
Plaintiff's counsel appeared without his client and indicated that his client
opted not to appear due to his continued concerns about COVID; and
therefore, Plaintiff's counsel conceded that he could not go forward with
his case. Thereafter, Defendant asked for a directed verdict. We granted
Defendant's motion for a directed verdict and later entered a written
Order,that same date granting a directed verdict in favor of the Defendant
and against Plaintiff, as after-jury selection Plaintiff failed to appear to
present evidence in support of its claim.
Apparently, at 9:1.3 a.m. on September 22, 2020, after the entry of
the directed verdict on the record, Plaintiff's counsel appeared in the
12 Prothonotary's office to file the Motion for continuance, with the attached
denial dated September 18, 2020.
On October 21, 2.020, Plaintiff, BT Management, LLC, filed it first
Ncjticee of Appeal to the Order dated September 22, 2020 in which we
entered a directed verdict in favor of Defendant and against Plaintiff,
dismissing the Plaintiff's cause of action because, after jury selection,
Plaintiff failed to appear to present its cause of action.
On October 22, 2020, we filed our Pennsylvania Rule of Appellate
Procedure 1925(b) Statement of Matters Complained of on Appeal.
On November 12, 2020, we received Plaintiff's 1925(b) Statement.
The matter was remanded by the Superior Court on January 4,
202.2. The remand noted that our Order was not reduced to afinal
judgment :and, therefore, the Superior Court lacked jurisdiction. The
Superior Court quashed the Appeal. Further, Superior Court noted that
Defendant irnproperly filed a " snap" Praecipe for judgement on September
23, 2020, well before time for seeking a new trial had expired. As a
result, the judgment was void and had no legal effect. The Superior
Court's order also opined that we should not have entered a directed
verdict:, but rather we should have entered adirective for a non- suit.
After remand, we held several conferences with counsel to
determine the route forward, prior to entering our Order of February 14,
2022 for nonsuit based upon Plaintiff's failure to present any evidence.
13 The Matters Complained Of On Appeal
The eight count complaint involves the sale of four proposed lots from
the expected subdivision. The four lots were described as the Sheetz Pad
(designated for a gas station and convenience store), the Embassy Pad ( a
proposed bank), McDonald's Pad ( fast food store). The fourth lot was
unidentified and alleged to be part of the two " Ratification" agreements in
which Plaintiff was to obtain an option to purchase the fourth lot. The
Complaint contained five counts for specific performance for the Amended
Sheetz Pad, Embassy Pad, McDonald's Pad, and the two " Ratification"
agreements. 1"he remaining three counts were plead in the alternate seeking
money damages for breach of contract related to the Sheetz, Embassy, and
McDonald's Pads.
Here, the Statute of Frauds, which applies to contracts for the sale of
real property requires " an adequate description of the property, a recital of
the consideration an(] the signature of the party to be charged." See Zuk v.
Zuk, 55 A.3d 1.02, :107 ( Pa Super Court 2012).
Judge McFadden's concise summary judgment order of July 9, 2019,
succinctly noted than the claims for specific performance must fail because
none of the agreements provide an adequate description of the properties to
be conveyed. Therefore, Counts I, III, V, VII and VII were dismissed. We
agree. with .judge McFadden's assessment. No additional discussion is
required.
14 Our summary . judgment order dated July 15, 2020, dismissed Counts
IV and VI for different violations of the Statute of Frauds. We feel
comfortable resting upon our Order with its detailed Statement of Reasons in
support thereof. However, by way of aquick summary: Count IV was
dismissed as the Embassy Pad Agreement was totally silent as to the
property to be conveyed. Although Section 1.01 of the agreement purported
to identify the parcel to be convey, the description merely referenced an
"Exhibit A." Further, Section 1.01 did not provide any identification as to
what Exhibit A was intended to be as there was no reference to a deed,
engineering plan, tax map, or a rneets and bounds description.
Additionally, no Exhibit A was attached to agreement or otherwise produced
in discc;very, Therefore, as the parties made no attempt to identify or
describe the property to be convey, the Embassy agreement was not
enforceable. in addition, we dismissed Count VI because the alleged
agreement was not signed by Defendant. The McDonald's agreement was
signed by Plaintiff's Owner/Managing Member, Mr. Thaler. The signature line
for Defendant: contained the purported signature of Louis P. Pektor.
Discovery confirmed that Mr. Pektor was not an owner, managing member,
or an rmpioyee of Defendant 7065-A William Penn Highway, LLC. Further,
no written agency agreement existed. Therefore, the McDonald's Pad
agreement was not enforceable under the Statute of Frauds.
15 Next, we are not aware of any Order entered in this docket dated July
22, 201.9, which precluded the testimony of Peter Terry, P.E. as an expert
witness. See Statement of Matters at ¶ 15. We can find no Order
addressing this issue. We know nothing about the wiliness, his participation
in this controversy, nor could we find a report which set forth his expert
opinion.
Finally, as to the complaint that we abused our discretion in denying
Plaintiff's procedurally defective request for a continuance on the eve of trial,
one need only review that Memorandum opinion which set forth in detail the
course of events supporting our denial of the continuance request. Supra at
5-1.2. We stand on the factual record in support of our exercise of
discretion in denying the last minute continuance request, for a non-
emergency based solely upon Plaintiff's fear of Covid.
We respectfully submit, that all dispositive orders entered in this
mutter are well founded and supported by case law. Further, the denial of
the continuance request: was not an abuse of discretion.
BY THE COURT:
STEPHEN G. BARATTA, J.