Lewandowski, H. v. Moretti, M.

• Court: Superior Court of Pennsylvania
• Decided: January 12, 2016
• Docket: 1887 WDA 2014
• Status: Unpublished

Opinion

J-A29021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HELEN LEWANDOWSKI AND ROBERT A. IN THE SUPERIOR COURT OF LEWANDOWSKI, INDIVIDUALLY AND AS PENNSYLVANIA EXECUTOR OF THE ESTATE OF DECEASED HELEN LEWANDOWSKI,

Appellee

v.

MICHELLE MORETTI AND LOUIS ULMER, APPEAL OF MICHELLE MORETTI

Appellant No. 1887 WDA 2014

Appeal from the Judgment Entered August 27, 2015 In the Court of Common Pleas of Allegheny County Civil Division at No(s): AR-14-001328

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED JANUARY 12, 2016

Michelle Moretti filed this appeal after Appellee Robert Lewandowski,

individually and in his capacity as executor of the estate of his deceased wife

Helen Lewandowski, prevailed at a nonjury trial and received an award in

the amount of $17,497.50 against Appellant. We affirm.

On June 11, 2014, Appellee1 filed a complaint against Louis Ulmer and

Ms. Moretti, containing the following allegations. The Lewandowskis resided

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1 While Helen Lewandowski was also a named plaintiff, the complaint indicated that she died on December 28, 2013. “A deceased person cannot (Footnote Continued Next Page) J-A29021-15

at 3442 Bismark Street, Pittsburgh. Ms. Moretti and Mr. Ulmer (“the

defendants”) jointly owned and operated an unincorporated business that

was engaged in contracting and building repairs. From June 27, 2013

through mid-August 2013, the Lewandowskis contracted with the defendants

on four occasions to construct and/or repair various items at the Bismark

Street property, which were not performed properly or at all.

Jesse D. Pettit entered his appearance on behalf of the defendants and

filed an answer, new matter, and counterclaim. Appellee filed the

appropriate response. The matter was scheduled to proceed to arbitration

on October 30, 2014. However, on October 14, 2014, Mr. Pettit filed a

suggestion of bankruptcy as to Mr. Ulmer. A transcript of the October 30,

2014 proceeding establishes that neither Appellant nor Mr. Pettit appeared

on that date, when a nonjury trial was held before the Honorable Joseph

James.2

_______________________ (Footnote Continued)

be a party to an action commenced after his or her death.” Glover v. State Farm Mut. Auto. Ins. Co., 2950 A.2d 335, 339 (Pa.Super. 2008). Thus, Mr. Lewandowski, both individually and as representative of his deceased wife’s estate, is legally the only party plaintiff herein. 2 Pa.R.C.P. 1303(a)(2) permits an case scheduled for arbitration to proceed immediately to a nonjury trial where one or more of the parties fails to appear, as follows:

The local rule may provide that the written notice [given at least thirty days in advance of the date, time, and place for an arbitration hearing] include the following statement:

(Footnote Continued Next Page)

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Appellee and his attorney were present and since “Mr. Ulmer filed a

bankruptcy,” Appellee elected to proceed “solely against Ms. Moretti.” N.T.,

10/30/14, at 3. A factual summary of Appellee’s testimony was presented.

In June 2013, he and his wife entered a series of contracts for repairs with

Mr. Ulmer and his partner, Ms. Moretti. There were a total of four jobs, two

of which were substantially completed but with defects. On one job, Mr. and

Mrs. Lewandowski paid $11,913.78, but the defendants performed no work

on that project. The defendants did leave behind $2,000 in materials, which

were subsequently used. To repair the defective work on the two projects

that were completed, Mr. Lewandowski hired another contractor and paid

him $5,300. Mr. Lewandowski requested attorney’s fees and a total award

of $17,497.50. A non-jury verdict was entered on October 30, 2014, in the

amount of $17,497.50 against Appellant.

Mr. Pettit filed a timely post-trial motion on November 5, 2014. That

document set forth the following. This matter was scheduled for arbitration

“This matter will be heard by a board of arbitrators at the time, date and place specified but, if one or more of the parties is not present at the hearing, the matter may be heard at the same and date before a judge of the court without the absent party or parties. There is not right to a trial de novo on appeal from a decision entered by a judge.”

Allegheny County Local Rule number 1303 outlines the requirements for the contents of the notice of an arbitration hearing and contains the language outlined in Pa.R.C.P. 1303(a)(2).

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on October 30, 2014. On October 9, 2014, represented by Paul McElrath,

Esquire, Mr. Ulmer filed for bankruptcy. Mr. McElrath told Appellant that the

filing would operate as an automatic stay of this proceeding as to both Mr.

Ulmer and her. Based on this information from Mr. McElrath, Appellant

instructed Mr. Pettit “to perform no additional work in the above-captioned

matter except to notify the Court of the bankruptcy proceeding.” Post-Trial

Motion, 11/5/14, at ¶ 9.

The post-trial motion continued as follows. In accordance with

Appellant’s instructions, Mr. Pettit filed the suggestion of bankruptcy as to

Mr. Ulmer in this case on October 14, 2014. Appellant did not appear at the

October 30, 2014 arbitration, and Mr. Pettit also did not attend that

proceeding since he had not been told to do so by Appellant, as “she

believed all proceedings relating to the above-captioned case had been

stayed based on the advice of Attorney McElrath.” Id. at ¶ 11. Appellant

was not aware that the matter was not stayed as to her until she received

notice of the October 30, 2014 verdict. The post-trial motion was denied,

and this timely pro se appeal followed.3 Mr. Pettit thereafter withdrew his

3 After the appeal was filed, this Court received a supplemental record indicating that, on August 27, 2015, Ms. Moretti had the prothonotary enter judgment on the verdict against her. Since this appeal was filed “after the announcement of a determination but before the entry of an appealable order,” it is “treated as filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5). For this reason, we deny Appellee’s request to quash this appeal due to Appellant’s failure to enter judgment on the verdict, and (Footnote Continued Next Page)

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appearance. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, and she complied.

The trial court authored an opinion wherein it did not address the

merits of the post-trial motion. Its ruling was premised upon the fact that

no legal authority or argument had been presented therein that indicated

that Appellant was entitled to a new trial because a bankruptcy attorney

incorrectly informed her that these proceedings were stayed against her.

Trial Court Opinion, 2/11/15, at 2 (In her post-trial motion, “Defendant did

not raise any legal issues or argument except that she was told not to come

to court because the case would not be heard.”). On appeal, Appellant

raises this position:

1. Did the lower court err by denying the appellant’s Motion for Post-Trial Relief when the appellant failed to appear for an arbitration hearing after being told by her attorney that the case had been continued and stayed because of a party’s filing for bankruptcy and that the continuance and stay had been consented to by the opposing attorney.

Appellant’s brief at 4.

Appellant seeks a new trial. When we review the trial court’s decision

to either grant or deny a new trial, we apply an abuse-of-discretion standard

of review. Czimmer v. Jansen Pharmaceuticals, Inc., 122 A.3d 1043

(Pa.Super. 2015). “[A]bsent a clear abuse of discretion by the trial court,

we have changed the caption to reflect that this appeal is from the final order entered in this case, the judgment entered against Appellant.

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appellate courts must not interfere with the trial court’s authority to grant or

deny a new trial.” Id. at 1051. We engage in a two-part analysis in this

setting. We determine first whether error occurred and, then, “whether the

error resulted in prejudice necessitating a new trial.” Id.

On appeal, Appellant’s argument is materially different from that

presented in her post-trial motion. She avers in her appellate brief that Mr.

Pettit advised her not to appear and that he was negligent. Appellant’s brief

at 9. Appellant also accuses Appellee’s counsel, Marc Rosenwasser, Esquire,

of inducing Mr. Pettit into a belief that Mr. Rosenwasser did not intend to

proceed on October 30, 2014. Specifically, she maintains that “there is

strong evidence that Rosenwasser was acting improperly, by telling Pettit

that he would not appear, or, at least, giving the impression to Pettit that he

would not appear.” Id.

In her post-trial motion, Appellant did not argue she was told not to

appear by Mr. Pettit and that Mr. Pettit was misled by Mr. Rosenwasser.

Her position was actually the opposite of that factual scenario. In the

motion, Appellant outlined that Mr. Ulmer’s bankruptcy attorney told her

that this action was stayed and that she told Mr. Pettit not to come to the

October 30, 2014 proceeding. Mr. Pettit prepared the post-trial motion and

never suggested that Mr. Rosenwasser improperly led him to believe that

Mr. Rosenwasser would not prosecute this matter on October 30, 2014,

against Appellant.

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As we observed in Siculietano v. K & B Amusements Corp., 915

A.2d 130, 132 (Pa.Super. 2006) (emphasis in original):

A party must file a post-trial motion from a trial court's decision and order following the conclusion of a trial. The purpose of 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. If an issue has not been raised in a post- trial motion, it is waived for appeal purposes.

See Pa.R.C.P. 227.1 (b)(2) (“post trial relief may not be granted unless the

grounds therefor . . . are specified in the motion.”). Herein, Appellant failed

to raise her present factual position in her post-trial motion.

Additionally, in that document, she neglected to set forth any legal

authority or argumentation as to why she was entitled to a new trial because

she and Mr. Pettit failed to appear based upon erroneous legal advice from

Mr. Ulmer’s bankruptcy counsel. Finally, Appellant failed to delineate in her

post-trial motion any basis for overturning the verdict in favor of Appellee;

she did not outline therein that she had any meritorious defenses in this

case.

The trial court refused to grant post-trial relief due to Appellant’s

failure to raise any legal arguments or issues in her motion that would have

entitled her to a new trial. It had no opportunity to address the present

contentions and correct any error that occurred in the trial court

proceedings. In addition to including a contention in a post-trial motion, a

party also has an obligation to provide legal argument in support of the

contention. We addressed this scenario in Jackson v. Kassab, 812 A.2d

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1233 (Pa.Super. 2002), where a trial court declined to address positions

raised in a post-trial motion as they were not properly developed by

argument and reference to appropriate legal authority. The Jackson Court

observed that the purpose of filing a post-trial motion was to grant the trial

court an opportunity to correct an error made at trial. This Court continued

that, “To fully effectuate the latter purpose, common sense mandates that

any issue raised in a motion for post-trial relief must be briefed and argued

to the trial court.” Id. at 1235. The Jackson panel concluded that the trial

court did not abuse its discretion in refusing to entertain the merits of

undeveloped assertions. This Court opined, “Failure to set forth an

argument in briefs filed in the court in support of post-trial motions

constitutes a failure to preserve the issue or issues not argued.” Id. Thus,

Appellant’s argument on appeal is waived for the additional reason that it

was not properly supported by legal authority and advocacy before the trial

court.

Appellee’s February 19, 2015 Application to Quash this appeal is

denied. Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

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Date: 1/12/2016

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