Weaver, C. v. Hydroponic Life

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2024
• Docket: 666 WDA 2023
• Status: Unpublished

Opinion

J-A16005-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

CARL E. WEAVER AND BEN : IN THE SUPERIOR COURT OF COBLENTZ : PENNSYLVANIA : v. : : HYDROPONIC LIFE, LLC, A NEVADA : LIMITED LIABILITY COMPANY : : Appellant : No. 666 WDA 2023

Appeal from the Order Entered May 17, 2023 In the Court of Common Pleas of Cambria County Civil Division at No(s): No. 2022-2932

BEFORE: KUNSELMAN, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: June 28, 2024

In this commercial-lease case, the Tenant, Hydroponic Life, LLC, appeals

from the order denying its Petition to Open a Confession of Judgment, which

the Landlords, Carl E. Weaver and Ben Coblentz, entered against it in the trial

court. Based on Tenant’s numerous violations of the Pennsylvania Rules of

Appellate Procedure, Landlords ask us to dismiss this appeal. For the reasons

that follow, we grant the application to dismiss.

In 2017, Landlord purchased a former penitentiary in Cambria County.

On August 30, 2019, they leased the penitentiary to Tenant “for commercial

(non-residential) purposes [to] be used only for Controlled Environment

Agriculture, outdoor farming and agricultural processing and uses related

thereto.” Amended Complaint in Confession of Judgment at 1-2 (quoting Ex.

1, Lease at 1, ¶ 2). The parties also simultaneously entered into a right-of-

first-refusal/option-to-purchase contract. J-A16005-24

Contrary to the lease, Tenant sublet part of the property to a trucking

company and conducted ghost tours in the penitentiary. When Landlords

learned of these non-agricultural uses, they required Tenant to execute an

October 15, 2021 addendum to the lease, which allowed Tenant to conduct

ghost tours from October 15, 2021 through January 31, 2022. The addendum

also required Tenant to purchase the penitentiary for $1,300,000 by January

31, 2022 or to pay Landlords an additional $50,000 in rent. By February 1,

2022, Tenant neither purchased the property nor paid the $50,000.

In response, the parties signed a second addendum on March 25, 2022.

Therein, Landlords extended the deadline for Tenant to purchase the property

for $1,300,000 or to pay the $50,000 in additional rent by April 30, 2022. The

addendum did not increase the time frame to conduct ghost tours, but Tenant

continued using the property for that purpose. When April 30, 2022 arrived,

Tenant again neither purchased the property nor paid the additional rent.

Landlords sent a notice of breach to Tenant and demanded it surrender

possession. Instead of vacating the premises, Tenant “offered to pay $50,000

— not as additional rent — but as a down payment on the . . . property . . . .”

Trial Court Opinion, 7/7/23, at 4. Landlords rejected the offer.

Shortly thereafter, Landlords informed Tenant that a third party offered

to purchase the property for $2,000,000. Tenant could not pay that amount

to exercise the right-of-first-refusal/option-to-purchase, but it continued to

occupy the property. Landlords therefore sued Tenant, based on a confession-

of-judgment clause in the lease, and they also sought to evict Tenant. See

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Amended Complaint in Confession of Judgment at 3; see also Ex. 1, Lease at

8-9, ¶ 27.

Eventually, Landlords filed an Amended Complaint in Confession of

Judgment. Tenant filed a Petition to Open Confession of Judgment, along with

an Answer, New Matter, and Counterclaim to the Amended Complaint. Tenant

contended that it never breached the lease and addenda. Rather, Tenant

claimed that Landlords breached the right-of-first-refusal/opinion-to-purchase

contract.

On January 19, 2023, the trial court held an evidentiary hearing on the

Petition to Open Confession of Judgment. Thereafter, the court “directed the

parties to submit any supporting documents, proposed orders, and legal

authority to support their respective positions regarding the Petition to Open.”

Trial Court Opinion, 7/7/23, at 2. Landlords “filed a timely brief, which

included citations to legal authority, on January 25, 2023. [Tenant] filed an

untimely brief, which cited to a single case, on January 31, 2023.” Id. The

trial court conducted a second evidentiary hearing on May 5, 2023 and, on

May 17, 2023, issued an order denying Tenant’s petition to open.

A week later, on May 24, 2023, Landlords praeciped the Prothonotary

of Cambria County for a writ of possession, directed to the sheriff. Thereafter,

on June 6, 2023, Tenant timely appealed to this Court from the order denying

its Petition to Open Confession of Judgment.

On June 12, 2023, the trial court ordered Tenant to file a Pennsylvania

Rule of Appellate Procedure 1925(b) statement of errors complained of on

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appeal. On the same day, Tenant petitioned the trial court to stay Landlords’

writ of possession, because execution would disrupt Tenant’s business during

the pendency of this appeal.

Following a June 19, 2023 hearing, where Tenant “failed to cite any legal

authority to support a stay in both its petition and during oral argument,” the

trial court granted Tenant partial relief. T.C. Order, 6/26/23, at 1 n.1. The

trial court stayed execution of the writ of possession until July 26, 2023, “to

afford [Tenant] an opportunity to seek a stay from the Superior Court and to

otherwise make preparations for an orderly departure from the premises.” Id.

at n.2. Beyond July 26, 2023, the stay was denied.

Four days later, Tenant filed an Application for Stay of Landlords’ writ of

possession in this Court. Tenant cited no law in its filing. See Application for

Stay at 1-3. Landlords replied in opposition. Before this Court could act on

the Application for Stay, on July 21, 2023, Tenant filed a second application,

entitled “Emergency Motion for Stay,” which, again, cited no law to support

the request for a stay. This Court denied both of Tenant’s pending applications

for a stay in an order, dated July 24, 2023.

The following day, seeking to invoke the King’s Bench Powers of the

Supreme Court of Pennsylvania, Tenant filed an Emergency Application for

Appeal of Denial of Application to Stay before the High Court. Justice Brobson

granted a temporary stay on the writ of possession to allow the full Court to

review Tenant’s application. See Weaver v. Hydroponic Life, LLC, 39 WM

2023 (Pa. 2023), Order, 7/25/23, at 1. After receiving Landlords’ reply, the

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Supreme Court denied Tenant’s emergency application and lifted the stay.

See id., Order, 8/2/23, at 1.

Meanwhile, Tenant neglected to prosecute its appeal in this Court. We

set September 8, 2023 as the deadline for Tenant’s docketing statement and

September 20, 2023 as the deadline for its appellate brief. Tenant missed

both deadlines.

Thus, on October 26, 2023, Landlords filed an application to dismiss the

appeal, while, at the same time, this Court sua sponte issued an order

dismissing Tenant’s appeal due to its failure to file a brief. Because the

documents were both filed on the same day, they crossed each other in the

online filing system. The next day, this Court issued an order dismissing

Landlords’ application to dismiss the appeal as moot.

A week later, a new attorney entered his appearance for Tenant. He

also filed an Application to Reinstate Appeal and to grant an extension of time

to file an appellate brief and reproduced record for Tenant. Therein, Tenant

contended that it was unaware that its prior attorney was ignoring this Court’s

orders to file the docketing statement, appellate brief, and reproduced record.

See Tenant’s Application to Reinstate Appeal at 2-3. Tenant “characterized

its relationship with [former counsel] as challenged and [Tenant] became

dissatisfied with [his] representation, including [former counsel’s] failure to

respond to communications and keep [Tenant] reasonably apprised of the

status of its case.” Id. at 3. Further, Tenant accused counsel for Landlords

of filing the application to dismiss the appeal “in bad faith,” because Landlords’

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counsel supposedly failed to disclose his intention to file that application to

Tenant’s new attorney. Id. at 5.

Landlords filed a reply opposing reinstatement of the appeal. Moreover,

Landlords asserted that Tenant was proceeding “in bad faith” by repeatedly

insisting in its applications for stays and reinstatement that “‘the instant

matter presents reasonable questions of law for adjudication’ — all without

once, then or now, suggesting even in a general way what those questions

might be.” Landlords’ Answer to Application to Reinstate Appeal at 3. In

addition, “nowhere does the Application to Reinstate [explain] the vivid

contrast between [Tenant’s] actions seeking stay pending appeal — when it

acted with utmost alacrity and dispatch — and its inaction when finally

presented the opportunity to elaborate at length on those ‘questions of law’

for which it repeatedly announced that it sought appellate review.” Id. at 3-

4. Landlords emphasized that the lengthy delays in this appeal and Tenant’s

repeated requests for stays only served to cloud the marketability of their title

to the property and prevented them from consummating the $2,000,000 sale.

On November 20, 2023, this Court granted reinstatement of the appeal.

We directed that Tenant’s “brief shall be due on or before January 4, 2024.”

Superior Court Order, 11/20/23, at 1 (emphasis in original). Notably, nothing

in the order granted Tenant a dispensation from filing its docketing statement

or a reproduced record, both of which Tenant expressed its desire to file in its

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Application to Reinstate Appeal. On January 4, 2024, Tenant filed its brief.1

However, Tenant did not file – and still has not filed – a docketing statement

or a reproduced record, as ordered by this Court nearly ten months ago.

Landlords filed an Emergency Application to Dismiss based on Tenant’s

continuing failure to adhere to the rules of appellate procedure. This Court

denied Landlords’ application without prejudice and deferred resolution of

Landlords’ procedural objections to this panel. See Superior Court Order,

1/26/24, at 1. Additionally, we permitted Landlords to forgo the filing of a

supplemental reproduced record. Landlords filed their appellee brief, wherein

they renewed their request for dismissal on procedural grounds.

Before reaching the merits of Tenant’s appeal, we address Landlords’

renewed Emergency Application to Dismiss. Whether we should dismiss an

appeal for violations of the Rules of Appellate Procedure “presents a question

of law, [thus,] our scope of review is plenary, and the standard of review is

de novo.” Commonwealth v. Walker, 185 A.3d 969, 974 (Pa. 2018),

overruled on other grounds by Commonwealth v. Young, 265 A.3d 462 (Pa.

2021).

In support of their application to dismiss, Landlords argue as follows:

____________________________________________

1 Tenant raises one issue: “Did the [trial] court err in failing to consider substantial evidence related to meritorious defenses and not striking the confessed judgment against [Tenant?]” Tenant’s Brief at 1.

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The Rules of Appellate Procedure require that briefs and other filings “conform in all material respects” with the standards set therein and provide that in the case of substantial defects “the appeal may be quashed or dismissed.” Pa.R.A.P. 2101. The Rules expressly permit an appellee to request dismissal on the basis of the appellant’s “failure to file its designation of reproduced record or reproduced record.” Pa.R.A.P. 2188. [Landlords] previously made two such requests: by Application to Dismiss filed October 26, 2023 (subsequently dismissed as moot on October 27, 2023), and again by Emergency Application to Dismiss filed January 23, 2024 (denied January 26, 2024, without prejudice to [Landlords’] “right to again raise this issue in the appellate brief”). [Landlords] again request that the Court dismiss the appeal, which outcome is justified by the many defects in [Tenant’s] filings.

Upon review of [Tenant’s] brief, this Court will note the absence of (1) a statement of jurisdiction, (2) the order or other determination in question, and (3) a statement of both the scope of review and the standard of review. Cf. Pa.R.A.P. 2111(a)(1), (2), (3), 2114, 2115. [Tenant’s] Statement of the Questions Involved does not contain “an answer stating simply whether the court or government unit agreed, disagreed, did not answer, or did not address the question.” [Tenant’s] Br. at 1, cf. Pa.R.A.P. 2116(a). Towards the end, the brief does not include “a copy of the statement of errors complained of on appeal,” as required by Pa.R.A.P. 2111(a)(11). Contrary to the mandate of Rule 2117, its Statement of the Case does not contain “the names of the judges or other officials whose determinations are to be reviewed,” nor are the facts cited in its narrative statement supported by “an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found.” [Tenant’s] Br. at 2–9, cf. Pa.R.A.P. 2117 (a)(3), (5).7

Note 7: Rather than limiting the Statement of Facts in its Statement of the Case to a “closely condensed chronological statement, in narrative form, of all the facts which are necessary to be known in order to determine the points in controversy,” as provided in Pa.R.A.P. 2117(a)(4), [Tenant’s] brief dedicates nearly two pages . . . to the history of ownership and use of the property in the 19th and 20th centuries prior to [Landlords’] purchase in 2017. [Tenant’s] Br. at 4–6. This history long predates either [Landlords’] ownership or [Tenant’s] occupancy, has no bearing on the suit before this

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Court, and is outside the scope of “the facts which are necessary to be known.” Pa.R.A.P. 2117(a)(4).

Nor, indeed, is there even a reproduced record to which [Tenant] might cite[, because] it failed to meet its obligation to file a designation of reproduced record 30 days before its brief was due. Pa. R.A.P. 2154(a). [Tenant] similarly failed to file a reproduced record concurrently with filing its brief, in violation of its duties as appellant under Pa.R.A.P. 2186(a)(1). [It] filed no application for an extension, nor any application to be excused from filing a reproduced record in accordance with Pa.R.A.P. 2151(d).

The brief additionally omits a certificate of compliance with the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania, as mandated by Pa.R.A.P. 127(a). This Court also still awaits the filing of [Tenant’s] docketing statement under Pa.R.A.P. 3517, which was due no later than September 8, 2023.

[Tenant’s] disregard for deadlines, court orders, and the Rules of Appellate Procedure resulted in the earlier dismissal of this appeal. Its current and ongoing failure to conform to the requirements of the Rules of Appellate Procedure again merits such a disposition. See Irwin Union Nat. Bank & Tr. Co. v. Famous, 4 A.3d 1099, 1103 (Pa. Super. 2010) (“deficiencies in a brief” entitle this Court to “dismiss the appeal entirely or find certain issues to be waived. Pa.R.A.P. 2101.”).

Because [Tenant] has fallen so short of the obligations it undertook as an appellant, this Court should quash or dismiss its appeal.

Landlords’ Brief at 13-15 (some punctuation and footnotes omitted).2

We adopt Landlords’ cogent and correct application of the Pennsylvania

Rules of Appellate Procedure as the analysis of this Court. We only add that

Tenant – similar to all of its other filings in the trial court, the Supreme Court,

2 We note Tenant filed no reply brief to rebut Landlords’ renewed motion to

dismiss its appeal.

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and this Court – failed to include citations to any pertinent legal authority in

support of the merits of the issue it raises on appeal. See Tenant’s Brief at

13-15.

Under the Pennsylvania Rules of Appellate Procedure, an appellant must

include “citation of authorities as are deemed pertinent” in the argument

section of its brief. Pa.R.A.P. 2119(a). The failure to provide citations to

pertinent authority results in wavier of the issue. “Where an appellant has

failed to cite any authority in support of a contention, the claim is waived.”

Collins v. Cooper, 746 A.2d 615, 619 (Pa. Super. 2000).

Here, while Tenant begins its argument with the three-pronged test for

opening a confession of judgment, Tenant thereafter offers no substantive law

to support its so-called “meritorious defense” – namely, that it did not breach

the lease. Such an argument requires support from cases regarding the law

of contracts, such as cases concerning the rules of contract interpretation in

general and commercial leases in particular.

Nowhere, in any of Tenant’s plethora of filings before this Court, did it

site one case, statute, or treatise regarding contract law. Tenant simply

reiterates its conclusory interpretations of the lease and addenda. It makes

no attempt to establish how the trial court erred, as a matter of contract law,

when the trial court concluded that the lease unambiguously prohibited Tenant

from conducting ghost tours or that the addenda required Tenant to pay

$50,000 in additional rent, which Tenant never paid. Nor does it offer any

support for the claim that the trial court abused its discretion by finding no

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genuine issue of material fact to allow Tenant’s proposed defense to proceed

to trial.

Thus, even if we ignored all the aforementioned procedural missteps

that Tenant made on appeal (and we do not), we would ultimately have to

dismiss Tenant’s sole appellate issue as waived. Tenant cited no legal

authority to support its defense that it fulfilled its contractual obligations under

the lease and the two addenda. See Collins, supra.

Landlords’ Emergency Application to Dismiss Appeal granted.

Appeal dismissed.

Case stricken from the argument list.

DATE: 6/28/2024

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