Coleman, A. v. Lackner, K.

• Court: Superior Court of Pennsylvania
• Decided: February 14, 2017
• Docket: Coleman, A. v. Lackner, K. No. 1117 WDA 2016
• Status: Unpublished

Opinion

J-A05007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW COLEMAN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : v. : : KELLY LACKNER : : Appellant : No. 1117 WDA 2016

Appeal from the Judgment Entered July 22, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): AR-15-004288

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 14, 2017

Appellant, Kelly Lackner, appeals pro se from the judgment entered in

the Allegheny County Court of Common Pleas, in favor of Appellee, Andrew

Coleman, in this landlord-tenant action. We affirm.

The relevant facts and procedural history of this appeal are as follows.

Appellant and Appellee, respectively landlord and tenant, entered into a one-

year residential lease agreement on December 15, 2013. On March 30,

2015, Appellee filed a pro se landlord-tenant complaint for Appellant’s failure

to return Appellee’s $800.00 security deposit and provide Appellee written

notice of any alleged damages to the premises. On August 4, 2015, the

district magistrate entered judgment in favor of Appellee and against

Appellant in the amount of $1,600.00, plus costs.

Appellant filed a timely pro se notice of appeal in the Allegheny County

Court of Common Pleas arbitration division on September 2, 2015. On J-A05007-17

October 4, 2015, Appellee filed a pro se complaint against Appellant in the

Allegheny County Court of Common Pleas. Neither party appeared for the

scheduled arbitration hearing on December 10, 2015. On December 15,

2015, the court dismissed the matter. Appellee filed a motion to reinstate

the case on January 6, 2016. That same day, the court vacated its

December 15th order and permitted the case to proceed on the merits to

arbitration. On January 13, 2016, Appellant filed a “motion to strike order

vacating dismissal” and a “motion to dismiss the case for fraud on the

court,” and the court denied both motions. On January 19, 2016, following

arbitration, the arbitrators entered an award in favor of Appellee and against

Appellant in the amount of $1,600.00. Appellant filed a timely pro se appeal

from the arbitrators’ award on February 9, 2016. On June 29, 2016,

Appellant filed a counterclaim against Appellant.

The parties proceeded to a bench trial on June 30, 2016. On July 1,

2016, the court entered a verdict in favor of Appellee and against Appellant

in the amount of $1,400.00, plus costs. After the time to file post-verdict

motions had expired, Appellee filed a praecipe for entry of judgment on July

22, 2016, and the court entered judgment on the verdict. On August 1,

2016, Appellant filed untimely post-trial motions and a pro se notice of

appeal. On August 8, 2016, the court denied Appellant’s post-trial motions

and ordered Appellant to file a concise statement of errors complained of on

appeal, per Pa.R.A.P. 1925(b). Appellant timely complied on August 15,

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2016. On August 16, 2016, the court ordered Appellant immediately to

order, pay for, and obtain the June 30th trial transcript. Appellant failed to

comply; and the certified record contains no trial transcript.

Appellant raises the following issues for our review:

DID [APPELLEE] BREACH [THE] LEASE FORFEITING HIS DEPOSIT?

DID [THE] COURT ABUSE ITS DISCRETION ALLOWING [APPELLEE] TO DISREGARD RULES 212.2[,] 206, 440, 1019, 1024, 1028, 1030, [AND] 1032 OF CIVIL PROCEDURE?

DID [THE] ARBITRATORS IMPROPERLY DECLINE TO EXAMINE [APPELLEE’S] UNSIGNED [COMPLAINT], [APPELLANT’S] UNANSWERED PRELIMINARY OBJECTIONS, [AND THE] LEASE CONTRACT?

DID [THE COURT] IMPROPERLY DENY [APPELLANT’S] MOTION TO STRIKE ITS COURT ORDER VACATING DISMISSAL [DUE TO APPELLEE]/COURT CLERK FRAUD UPON THE COURT?

DID [THE] NON-JURY VERDICT BY [THE COURT] IMPROPERLY DISREGARD THE LEASE CONTRACT LANGUAGE IN FAVOR OF VAGUE CREDIBILITY CALLS?

DID [THE COURT] IMPROPERLY DISALLOW THE CONTINUANCE OR DISMISSAL MOTIONS?

[WAS THE COURT’S] VERDICT FAVORING [APPELLEE’S] CREDIBILITY CONTRARY TO THE EVIDENCE?

DID [THE COURT] UNJUSTLY REFUSE TO EXAMINE [APPELLANT’S] PRELIMINARY OBJECTIONS TO [APPELLEE’S] ANSWER [TO APPELLANT’S COUNTERCLAIM] AFTER RUSHING FOR [A] NON-JURY VERDICT?

(Appellant’s Brief at 8).

As a prefatory matter, we must determine whether Appellant properly

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preserved her issues for review, which implicates the following principles.

See Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa.Super. 2007), aff’d, 602

Pa. 147, 977 A.2d 1170 (2009) (citing Commonwealth v. Wholaver, 588

Pa. 218, 903 A.2d 1178 (2006), cert. denied, 549 U.S. 1171, 127 S.Ct.

1131, 166 L.Ed.2d 900 (2007) (stating: “This Court may sua sponte

determine whether issues have been properly preserved for appeal”)); Hall

v. Owens Corning Fiberglass Corp., 779 A.2d 1167, 1169 (Pa.Super.

2001) (stating: “Post-trial relief may not be granted unless the grounds for

such relief are specified in the post-trial motion”). Following trial, an

appellant must file post-trial motions within ten days after the court enters a

verdict. Pa.R.C.P. 227.1(c); 51 Park Properties v. Messina, 720 A.2d 773

(Pa.Super. 1998), appeal denied, 558 Pa. 632, 720 A.2d 773 (1999)

(demonstrating rule on post-verdict motions filed after trial in

landlord/tenant case). Issues not raised in post-trial motions are waived.

Agostinelli v. Edwards, 98 A.3d 695, 700 (Pa.Super. 2014), appeal

denied, 631 Pa. 734, 113 A.3d 278 (2015).

Pennsylvania Rule of Civil Procedure 227.4 sets forth circumstances

where the prothonotary shall enter judgment upon the praecipe of a party

and states in pertinent part:

Rule 227.4. Entry of Judgment upon Praecipe of a Party.

In addition to the provisions of any Rule of Civil Procedure of Act of Assembly authorizing the prothonotary to enter judgment upon praecipe of a party…the prothonotary shall,

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upon praecipe of a party:

(1) enter judgment upon…the decision of a judgment following a trial without jury, if

(a) no timely post-trial motion is filed….

Pa.R.C.P. 227.4(1)(a) (emphasis added). Additionally, Rule of Appellate

Procedure 1701 enumerates the actions a trial court has authority to

perform once a party initiates an appeal and states in relevant part as

follows:

Rule 1701. Effect of Appeal Generally

(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken…, the trial court…may no longer proceed further in the matter.

(b) Authority of a trial court or agency after appeal. After an appeal is taken…, the trial court…may:

(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.

(2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.

(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:

(i) an application for reconsideration of the order is filed in the trial court…within the time provided or prescribed by law; and

(ii) an order expressly granting reconsideration of

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such prior order is filed in the trial court…within the time prescribed by these rules for the filing of a notice of appeal…with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.

Pa.R.A.P. 1701(a), (b)(1)-(3). In other words, once a party files a notice of

appeal, the trial court generally lacks jurisdiction to act further on the merits

of the case. Pa.R.A.P. 1701(a). Specifically, after a party files a notice of

appeal, the court lacks authority to consider untimely post-trial motions.

D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d

915, 920 (Pa.Super. 2013). After a notice of appeal has been filed, the

court’s denial of a post-trial motion is a nullity. Ostrowski v. Pethick, 590

A.2d 1290, 1292 (Pa.Super. 1991) (citing Pa.R.A.P. 1701(a)).

Issues not raised in a Rule 1925 concise statement of errors will be

deemed waived. Linde v. Linde Enterprises, Inc., 118 A.3d 422, 430

(Pa.Super. 2015), appeal denied, ___ Pa. ___, 129 A.3d 1243 (2015). If a

concise statement is too vague, the court may find waiver and disregard any

argument. Id. “Rule 1925(b) waivers may be raised by the appellate court

sua sponte.” Commonwealth v. Hill, 609 Pa. 410, 428, 16 A.3d 484, 494

(2011).

Finally, the appellant has the responsibility to provide a complete

record for review. Conner v. DaimlerChrysler Corp., 820 A.2d 1266,

1273 (Pa.Super. 2003). This Court is limited to considering only those

materials which have been certified in the record on appeal. Pa.R.A.P. 1921;

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See also Everett Cash Mut. Ins. Co. v. T.H.E. Ins. Co., 804 A.2d 31, 34

(Pa.Super. 2002) (stating: “[T]hose documents which are not part of the

‘official record’ forwarded to this Court are considered to be non-existent”)

(quoting D’Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318, 326

(Pa.Super. 1998), appeal denied, 557 Pa. 647, 734 A.2d 394 (1998)).

Where a claim is dependent upon materials not provided in the certified

record, the claim is waived. Stewart v. Owens-Corning Fiberglas, 806

A.2d 34, 37 n.3 (Pa.Super. 2002) (stating: “The failure of the appellant to

ensure that the original record certified for appeal contains sufficient

information to conduct a proper review may constitute a waiver of the issues

sought to be examined”). Where the appellant has not made the transcript

of the proceedings at issue a part of the certified record, this Court have

said:

With regard to missing transcripts, the Rules of Appellate Procedure require an appellant to order and pay for any transcript necessary to permit resolution of the issues raised on appeal. Pa.R.A.P.1911(a). … When the appellant…fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc),

appeal denied, 591 Pa. 663, 916 A.2d 632 (2007). “When the appellant has

failed to preserve issues for appeal, the issues are waived, and the…court’s

order is more properly ‘affirmed.’” In re K.L.S., 594 Pa. 194, 197 n.3, 934

A.2d 1244, 1246 n.3 (2007) (noting when appellant has waived issues on

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appeal, this Court should affirm trial court’s decision, not quash appeal).

Instantly, the court entered its verdict on July 1, 2016. Twenty-one

days later, after expiration of the ten-day period to file post-verdict motions,

Appellee filed a praecipe on July 22, 2016, to enter judgment on the verdict;

and the court entered judgment on the verdict. Appellant later filed her

post-verdict motion on August 1, 2016, beyond the ten-day deadline of

Pa.R.C.P. 227.1(c). On the same day, Appellant also filed a notice of appeal.

Although Appellee did not object to the untimeliness of Appellant’s post-trial

motions, the trial court denied the motions on August 8, 2016.1 If the court

considered Appellant’s post-trial motions, it lacked authority to do so, once

Appellant filed a notice of appeal. See Pa.R.A.P. 1701(a); D.L. Forrey &

Associates, Inc., supra. Thus, Appellant’s failure to file timely post-trial

motions constitutes waiver of her issues on appeal. See Pa.R.C.P. 227.1(c).

Additionally, in her Rule 1925(b) statement, Appellant failed to include

any issue regarding Appellee’s breach of the lease, the court’s disregard of

several Rules of Civil Procedure, the arbitrators’ award, and the court’s

disregard of the lease language. Accordingly, Appellant specifically waived

for our review her first, second, third, and fifth issues on that basis as well.

See Linde, supra.

Finally, Appellant failed to ensure we had the complete record ____________________________________________

1 In its order filed August 8, 2016, the trial court denied Appellant’s post- trial motions without explanation.

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necessary for appellate review. Appellant did not comply with the trial

court’s order to obtain the trial transcript and include it in the certified

record. Without the trial transcript, we cannot conduct meaningful appellate

review of Appellant’s issues. Accordingly, Appellant specifically waived for

our review her first, third, fifth, and seventh issues on this basis also. See

Conner, supra; Preston, supra. Based on the foregoing, Appellant waived

all of her issues for appellate review. Accordingly, we affirm.

Judgment affirmed. Case is stricken from the argument list.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/14/2017

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