First Cornerstone Bank v. Portnoy, M.

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2015
• Docket: 396 EDA 2015
• Status: Unpublished

Opinion

J-A24031-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

FIRST CORNERSTONE BANK, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL PORTNOY D/B/A MID : ATLANTIC JUDGMENT ENFORCEMENT : AND DANIEL DESTEFANO, : : APPEAL OF: MICHAEL PORTNOY, : D/B/A MID ATLANTIC JUDGMENT : ENFORCEMENT : No. 396 EDA 2015

Appeal from the Judgment Entered February 9, 2015, in the Court of Common Pleas of Montgomery County, Civil Division at No(s): 2013-32207

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 11, 2015

Michael Portnoy d/b/a Mid Atlantic Judgment Enforcement (Portnoy)

appeals from a judgment entered against Portnoy and in favor of First

Cornerstone Bank (the Bank). We affirm.

Given the manner in which we dispose of this appeal, we need to

provide only a brief summary of the background underlying the matter. The

Bank initiated this declaratory judgment action by filing a complaint against

Portnoy and Daniel DeStephano (DeStephano). The Bank sought a

declaration that its lien against DeStephano’s property has priority over a

lien held by Portnoy. The parties submitted the case to the court on

stipulated facts.

* Retired Senior Judge assigned to the Superior Court. J-A24031-15

On February 5, 2015, the trial court entered an order declaring that

the Bank’s lien has priority over Portnoy’s lien. On February 9, 2015,

Portnoy filed a praecipe for the entry of judgment, and judgment was

entered that day. Portnoy timely filed a notice of appeal and raises two

issues on appeal. Portnoy has waived these issues.

In Motorists Mut. Ins. Co. v. Pinkerton, 830 A.2d 958, 959 (Pa.

2003), which involved declaratory judgment actions, our Supreme Court

held that “orders following trials on stipulated facts must be treated just like

orders following other trials, i.e., in both situations, parties who wish to

appeal must first file post-trial motions.” Id. at 964. As we noted above,

the parties submitted this declaratory judgment action to the trial court on

stipulated facts. Thus, once the court entered its order declaring the rights

of the parties, Portnoy was required to file a post-trial motion. Portnoy

failed to do so; thus, Portnoy has waived all issues on appeal. See D.L.

Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc., 71 A.3d 915,

920 (Pa. Super. 2013) (“[The a]ppellant in this case did not file any post-

trial motions, procedurally flawed or otherwise. Accordingly, [the

a]ppellant’s claims of error are waived.”).

We reject Portnoy’s apparent attempt to convince this Court that the

trial court granted summary judgment in favor of the Bank and against

Portnoy. Portnoy’s Brief at vii and xi. The introductory paragraph of the

parties’ stipulation of facts states that the parties “hereby stipulate and

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agree to the following, to be used as the factual record in the final

disposition of this matter, as if the parties had each moved for summary

judgment.” N.T., 11/13/2015, Exhibit 1, at unnumbered page 1 (emphasis

added). However, the certified record is devoid of any motions for summary

judgment.

Without providing citation to the record, Portnoy essentially asserts

that the trial court agreed to dispose of the matter via summary judgment.

Portnoy’s Brief at xi. We did not discover any such agreement in the

certified record. Furthermore, neither the trial court’s order nor its opinion

in support of that order mentions summary judgment or the concepts

thereof. In addition, neither party actually moved for summary judgment,

let alone filed a written motion for summary judgment. Therefore, the trial

court was precluded from declaring the rights of the parties through that

procedural mechanism. See Pa.R.C.P. 1035.2 (“After the relevant pleadings

are closed, but within such time as not to unreasonably delay trial, any party

may move for summary judgment in whole or in part as a matter of law[.]”)

(emphasis added); DiGregorio v. Keystone Health Plan East, 840 A.2d

361, 366-67 (Pa. Super. 2003) (“[S]ince Keystone failed to file a written

motion [for summary judgment], the trial court should not have addressed

the merits of the motion.”).

Lastly, if Portnoy believed that the trial court’s February 5th order

granted summary judgment in favor the Bank, then Portnoy’s decision to

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praecipe for the entry of judgment is curious. Had the court entered

summary judgment, its order would have disposed of all parties and all

claims and thus would have constituted a final, appealable order pursuant to

Pa.R.A.P. 341(c). The entry of judgment under such circumstances is

unnecessary and superfluous.

The certified record fully supports a conclusion that the trial court

disposed of this matter by way of a non-jury trial on stipulated facts. Thus,

Portnoy’s failure to file a post-trial motion is fatal to his appellate issues.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2015

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