Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co.

449 A.2d 1372, 498 Pa. 557, 1982 Pa. LEXIS 562

• Court: Supreme Court of Pennsylvania
• Decided: July 29, 1982
• Docket: 411
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

This is an appeal from an order of the Superior Court affirming a decree of the Court of Common Pleas of Northampton County which directed appellants Wells Fargo Land and Mortgage Co. and Northeastern National Land Co. (Wells Fargo) to construct a theatre building pursuant to a lease agreement with appellee Easton Theatres, Inc. Because Wells Fargo has complied with the decree, we dismiss the appeal as moot.¹

The parties’ agreement permitted appellee to seek financing for the construction project, provided that a mortgage be obtained “with the leased premises as the only security.” Appellee obtained an offer of a loan from the Continental Bank, “evidenced by the bond or note of your companies secured by a first mortgage.” Wells Fargo rejected the offer without first seeking to determine whether the requirement of a bond or note had been intended to impose personal liability or merely to afford procedural advantages to the lender in the event of default.²

Appellee instituted the present proceedings upon Wells Fargo’s refusal to accept the proposed financing. On October 17,1978, the court of common pleas directed Wells Fargo to commence construction of a theatre building within thirty days or post a supersedeas bond in the amount of $200,000. Wells Fargo then appealed to the Superior Court, but did not file a bond or seek an alternate stay. See Pa.R.A.P. 1732. While the appeal was pending, appellee sought to have Wells Fargo held in contempt for its noncompliance with the decree. On December 11, 1978, the court of common pleas denied appellee’s request, concluding “that it is not in the best interest of either side for construction to commence pending appeal ... [and] that a supersedeas bond is the least burdensome remedy.” Nonetheless, Wells Fargo continued to refuse to file a bond or begin construction.

On May 7,1979, after the Superior Court had affirmed the decree of specific performance, the court of common pleas found Wells Fargo in contempt. The Superior Court denied Wells Fargo’s petition to stay the order of contempt, and at some time thereafter construction was commenced. The theatre building has been open for business since December 21, 1979.

Despite its compliance with the decree, Wells Fargo seeks a reversal of the decree on the theory that it acted properly in summarily rejecting the Continental offer. Wells Fargo also seeks a remand of the record for the fashioning of additional “appropriate relief.” Presumably the latter request for relief reflects Wells Fargo’s belief that it has been harmed by its having to construct the theatre at 1979 prices, instead of prices in effect in 1973, when the building was to have been built.³

We are not persuaded that either request for relief can survive in the face of Wells Fargo’s compliance with the court’s decree. “Ordinarily, a party who consents to, or acquiesces in, a judgment or order cannot appeal therefrom.” 9 Standard Pennsylvania Practice Ch. 38, § 162, pp. 134-35. See Brown v. Commonwealth, Dep’t of Health, 495 Pa. 456, 434 A.2d 1179 (1981); Reese v. Adamson, 276 Pa. 253, 119 A. 920 (1923). Here, Wells Fargo was given every opportunity by the court of common pleas to maintain the status quo while its appeal was pending. Nevertheless, Wells Fargo chose to ignore the orders of the court of common pleas until, as a result of its own willful inaction, it had to begin construction of the theatre building or face enforcement of the contempt citation. In these circumstances, equity manifestly requires that Wells Fargo be held responsible for the consequences of its conduct and that its appeal be dismissed as moot.⁴ Appeal dismissed. Each party to pay own costs.

FLAHERTY, J., files a dissenting opinion, in which McDermott, j., joins;-

1 . This case was reassigned to this writer on June 11, 1982.

2 . See Ladner, Conveyancing in Pennsylvania §§ 12.01, 12.14 (4th ed. 1979).

3 . Wells Fargo has, of course, overlooked the fact that the Increase in the construction price has resulted in a correspondingly greater return on Wells Fargo’s investment. To the extent that the building constructed in 1979 is worth more, Wells Fargo receives a proportionately greater tax advantage in depreciating the building over its useful life. See Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980) (rejecting practice of discounting awards for future lost earnings to present value in favor of “total offset” approach which recognizes effect of inflation in depreciating value of dollar).

The question of whether appellee Easton Theatres in fact suffered a compensable loss as a result of the delay was not addressed by the Chancellor and remains to be decided. 265 Pa.Super. 334, 352, 401 A.2d 1333, 1343 (1979).

4 . We perceive no basis for addressing the merits of the controversy on a theory that collateral estoppel would be asserted to prevent Wells Fargo from initiating any future civil action against Easton Theatres. The only determination of the Superior Court from which Wells Fargo has chosen to appeal is that relating to the decree of specific performance. Wells Fargo has not challenged the Superior Court’s conclusion that Wells Fargo’s breach of the lease agreement may entitle Easton to recover lost profits. See supra note 2. Thus, any possibility of collateral estoppel arising from a dismissal of this appeal is a possibility of Wells Fargo’s own making, and may not influence this Court’s decision on whether to address the issue of specific performance long after the theatre has been built. See Pa.R.A.P. 2116. See also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).