IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald Greer : : v. : : South Franklin Township, : No. 604 C.D. 2023 Appellant : Submitted: September 9, 2024
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: October 15, 2024
Appellant South Franklin Township (Township) appeals from the February 22, 2022 order of the Court of Common Pleas of Washington County (Trial Court) in which the Trial Court awarded Donald Greer (Greer) money damages in the amount of $18,490.02. Upon review, we dismiss the appeal. I. Background Greer owns a property located at 280 Moore Road in Township (Property). See Trial Court Findings and Verdict filed February 22, 2022 (Trial Court Opinion) at 1, Findings of Fact (F.F.) No. 1, Amended Reproduced Record (A.R.R.) at R-1.1 Township maintains a drainage pipe that runs from a catch basin
1 We note that the Amended Reproduced Record does not comply with Pennsylvania Rule of Appellate Procedure 2173, which requires pages be separately numbered with Arabic figures followed by a small “a.” See Pa.R.A.P. 2173. Instead, the Amended Reproduced Record identifies the various documents contained therein by a letter of the alphabet identifying the document followed by the number of the page in that document. While this numbering scheme is incorrect under Moore Road2 and empties onto the Property. See Trial Court Opinion at 1, F.F. No. 2, A.R.R. at R-1. In November of 2018, Greer filed a complaint in equity (Complaint) against Township sounding in negligence and trespass seeking an injunction and money damages based on alleged damages caused to the Property and buildings thereon by the diversion of water from Township’s pipe under Moore Road. See Complaint, A.R.R. at A1-A28. The Trial Court conducted a non-jury trial on the matter on February 17, 2022. See Notes of Testimony February 17, 2022 (N.T.), A.R.R. at S-1 – S-101. On February 22, 2022, the Trial Court entered the Trial Court Opinion, granting an injunction directing Township to repair the catch basin and install a proper drainage pipe to prevent further damage to the Property and awarding Greer $18,490.02 for damages visited upon the Property.3 See Trial Court Opinion at 8, A.R.R. at R-8. Township filed no post-trial motions following the verdict. See Trial Court Docket No. CV-2018-06147 (Trial Court Docket) at 2- 3.4 Instead, the Township appealed the matter on March 23, 2022 (First Appeal). See Trial Court Docket at 3. Township filed the First Appeal of this matter in the Superior Court of Pennsylvania, which transferred the matter to this Court on May 16, 2022. In a per
under the Pennsylvania Rules of Appellate Procedure, references to the Amended Reproduced Record herein adhere to it for ease of reference.
2 No dispute exists that Moore Road is a Township road. See Trial Court Opinion at 1, F.F. No. 3.
3 Township challenges only the Trial Court’s award of monetary damages in the instant appeal.
4 The Trial Court Docket does not appear as part of the Amended Reproduced Record, but is included in the Trial Court’s Original Record delivered to this Court pursuant to Pennsylvania Rule of Appellate Procedure 1931, Pa.R.A.P. 1931.
2 curiam order dated September 20, 2022, this Court observed that judgment had not been entered in the Trial Court and Township did not file post-trial motions within 10 days of the Trial Court Opinion. See Order dated September 20, 2022 (September 2022 Order), Commonwealth Court Docket No. 821 C.D. 2022 (First Appeal Docket). The September 2022 Order directed Township to cause entry of judgment to be entered on the Trial Court Docket. See September 2022 Order, First Appeal Docket at 3. On October 21, 2022, this Court then entered an order directing Township to file a docketing statement within 14 days. See Order dated October 21, 2022, First Appeal Docket at 3. The Court then filed another order on November 9, 2022, directing Township to pay required filing fees within 14 days. See Order dated November 9, 2022, First Appeal Docket at 3. The Court dismissed the First Appeal on March 8, 2023, for failure to comply with the Court’s October 21, 2022 and November 9, 2022 orders. See First Appeal Docket at 3. Thereafter, judgment was entered by praecipe filed on May 8, 2023,5 after which Township re-filed its Notice of Appeal in this Court on June 7, 2023.6 See Memorandum and Order dated September 14, 2023, Commonwealth Court Docket No. 604 C.D. 2023 (Current Docket) at 3. II. Issues On appeal, Township challenges the monetary damages awarded by the Trial Court. See Township’s Br. at 7, 11-20. Township argues that the Trial Court improperly calculated the monetary damages using figures based upon estimates and
5 See Memorandum and Order dated September 14, 2023, Commonwealth Court Docket No. 604 C.D. 2023.
6 Upon the re-filing of the Notice of Appeal, the matter received the instant docket number in this matter: 604 C.D. 2023.
3 conjecture and not upon actual costs incurred by Greer as a result of water damage on the Property. See id. III. Discussion Before determining Township’s claim regarding whether the Trial Court awarded the correct amount of damages in the underlying matter, we must first determine whether Township has waived its claim by failing to file post-trial motions. This Court may consider sua sponte whether an appellant has preserved an issue for appeal. See Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). In relevant part, Pennsylvania Rule of Civil Procedure 277.1 provides:
Rule 227.1. Post-Trial Relief
(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
(b) Except as otherwise provided by Pa.R.E. 103(a) [(relating to preserving a claim of error in a ruling to admit or exclude evidence)], post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for
4 findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial without jury.
Pa.R.Civ.P. 227.1. Thus, “a party must file post-trial motions at the conclusion of a trial in any type of action in order to preserve claims that the party wishes to raise on appeal.” State Farm Fire & Cas. Co. v. JPC Grp., Inc., 157 A.3d 1, 5 (Pa. Cmwlth. 2017). “Issues not raised in a timely post-trial motion will be deemed waived.” Id. at 5 (citing Chalkey v. Roush, 805 A.2d 491, 494 (Pa. 2002) (“Grounds not specified by a party in post-trial motions pursuant to Rule 227.1 shall be deemed waived on appellate review.”)); see also Liparota v. State Workmen’s Ins.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald Greer : : v. : : South Franklin Township, : No. 604 C.D. 2023 Appellant : Submitted: September 9, 2024
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE FIZZANO CANNON FILED: October 15, 2024
Appellant South Franklin Township (Township) appeals from the February 22, 2022 order of the Court of Common Pleas of Washington County (Trial Court) in which the Trial Court awarded Donald Greer (Greer) money damages in the amount of $18,490.02. Upon review, we dismiss the appeal. I. Background Greer owns a property located at 280 Moore Road in Township (Property). See Trial Court Findings and Verdict filed February 22, 2022 (Trial Court Opinion) at 1, Findings of Fact (F.F.) No. 1, Amended Reproduced Record (A.R.R.) at R-1.1 Township maintains a drainage pipe that runs from a catch basin
1 We note that the Amended Reproduced Record does not comply with Pennsylvania Rule of Appellate Procedure 2173, which requires pages be separately numbered with Arabic figures followed by a small “a.” See Pa.R.A.P. 2173. Instead, the Amended Reproduced Record identifies the various documents contained therein by a letter of the alphabet identifying the document followed by the number of the page in that document. While this numbering scheme is incorrect under Moore Road2 and empties onto the Property. See Trial Court Opinion at 1, F.F. No. 2, A.R.R. at R-1. In November of 2018, Greer filed a complaint in equity (Complaint) against Township sounding in negligence and trespass seeking an injunction and money damages based on alleged damages caused to the Property and buildings thereon by the diversion of water from Township’s pipe under Moore Road. See Complaint, A.R.R. at A1-A28. The Trial Court conducted a non-jury trial on the matter on February 17, 2022. See Notes of Testimony February 17, 2022 (N.T.), A.R.R. at S-1 – S-101. On February 22, 2022, the Trial Court entered the Trial Court Opinion, granting an injunction directing Township to repair the catch basin and install a proper drainage pipe to prevent further damage to the Property and awarding Greer $18,490.02 for damages visited upon the Property.3 See Trial Court Opinion at 8, A.R.R. at R-8. Township filed no post-trial motions following the verdict. See Trial Court Docket No. CV-2018-06147 (Trial Court Docket) at 2- 3.4 Instead, the Township appealed the matter on March 23, 2022 (First Appeal). See Trial Court Docket at 3. Township filed the First Appeal of this matter in the Superior Court of Pennsylvania, which transferred the matter to this Court on May 16, 2022. In a per
under the Pennsylvania Rules of Appellate Procedure, references to the Amended Reproduced Record herein adhere to it for ease of reference.
2 No dispute exists that Moore Road is a Township road. See Trial Court Opinion at 1, F.F. No. 3.
3 Township challenges only the Trial Court’s award of monetary damages in the instant appeal.
4 The Trial Court Docket does not appear as part of the Amended Reproduced Record, but is included in the Trial Court’s Original Record delivered to this Court pursuant to Pennsylvania Rule of Appellate Procedure 1931, Pa.R.A.P. 1931.
2 curiam order dated September 20, 2022, this Court observed that judgment had not been entered in the Trial Court and Township did not file post-trial motions within 10 days of the Trial Court Opinion. See Order dated September 20, 2022 (September 2022 Order), Commonwealth Court Docket No. 821 C.D. 2022 (First Appeal Docket). The September 2022 Order directed Township to cause entry of judgment to be entered on the Trial Court Docket. See September 2022 Order, First Appeal Docket at 3. On October 21, 2022, this Court then entered an order directing Township to file a docketing statement within 14 days. See Order dated October 21, 2022, First Appeal Docket at 3. The Court then filed another order on November 9, 2022, directing Township to pay required filing fees within 14 days. See Order dated November 9, 2022, First Appeal Docket at 3. The Court dismissed the First Appeal on March 8, 2023, for failure to comply with the Court’s October 21, 2022 and November 9, 2022 orders. See First Appeal Docket at 3. Thereafter, judgment was entered by praecipe filed on May 8, 2023,5 after which Township re-filed its Notice of Appeal in this Court on June 7, 2023.6 See Memorandum and Order dated September 14, 2023, Commonwealth Court Docket No. 604 C.D. 2023 (Current Docket) at 3. II. Issues On appeal, Township challenges the monetary damages awarded by the Trial Court. See Township’s Br. at 7, 11-20. Township argues that the Trial Court improperly calculated the monetary damages using figures based upon estimates and
5 See Memorandum and Order dated September 14, 2023, Commonwealth Court Docket No. 604 C.D. 2023.
6 Upon the re-filing of the Notice of Appeal, the matter received the instant docket number in this matter: 604 C.D. 2023.
3 conjecture and not upon actual costs incurred by Greer as a result of water damage on the Property. See id. III. Discussion Before determining Township’s claim regarding whether the Trial Court awarded the correct amount of damages in the underlying matter, we must first determine whether Township has waived its claim by failing to file post-trial motions. This Court may consider sua sponte whether an appellant has preserved an issue for appeal. See Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). In relevant part, Pennsylvania Rule of Civil Procedure 277.1 provides:
Rule 227.1. Post-Trial Relief
(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision; or
(5) enter any other appropriate order.
(b) Except as otherwise provided by Pa.R.E. 103(a) [(relating to preserving a claim of error in a ruling to admit or exclude evidence)], post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for
4 findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision in the case of a trial without jury.
Pa.R.Civ.P. 227.1. Thus, “a party must file post-trial motions at the conclusion of a trial in any type of action in order to preserve claims that the party wishes to raise on appeal.” State Farm Fire & Cas. Co. v. JPC Grp., Inc., 157 A.3d 1, 5 (Pa. Cmwlth. 2017). “Issues not raised in a timely post-trial motion will be deemed waived.” Id. at 5 (citing Chalkey v. Roush, 805 A.2d 491, 494 (Pa. 2002) (“Grounds not specified by a party in post-trial motions pursuant to Rule 227.1 shall be deemed waived on appellate review.”)); see also Liparota v. State Workmen’s Ins. Fund, 722 A.2d 253, 256 (Pa. Cmwlth. 1999) (“Where a party fails to file timely post-trial motions after a bench trial, no issues are preserved for this Court to review.”). “The purpose for 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.” Chalkey, 805 A.2d at 494 n.9. Township filed no post-trial motions in the instant matter, and instead filed the First Appeal to the Superior Court on March 23, 2022. See Trial Court
5 Docket at 3. By way of explanation for its failure to file post-trial motions, Township argues that it was excused from filing such motions by virtue of judgment not being entered in the matter until almost one year after the verdict. See Township’s Br. at 20-21. Township is incorrect. The trial of this matter occurred on February 17, 2022. The Trial Court entered the Trial Court Opinion awarding Greer equitable remedies and money damages on February 22, 2022. The Trial Court Opinion constituted “the filing of the decision in the case of a trial without jury” in this matter. See Pa.R.Civ.P. 227.1(c)(2). Thus, Township had 10 days, or until March 4, 2022, to file post-trial motions, but it did not do so. See Trial Court Docket at 2; Pa.R.Civ.P. 227.1. Township’s failure to file post-trial motions waived its issues for appeal. See Pa.R.Civ.P. 227.1; Chalkey; State Farm. IV. Conclusion Accordingly, we dismiss this appeal without reaching the merits of the underlying claims.
___________________________________ CHRISTINE FIZZANO CANNON, Judge
6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald Greer : : v. : : South Franklin Township, : No. 604 C.D. 2023 Appellant :
ORDER
AND NOW, this 15th day of October, 2024, Appellant South Franklin Township’s appeal of the February 22, 2022 order of the Court of Common Pleas of Washington County is DISMISSED.
___________________________________ CHRISTINE FIZZANO CANNON, Judge