J-S05034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIMOTHY J. HOFFMAN AND KAREN D.                  IN THE SUPERIOR COURT OF
HOFFMAN, HIS WIFE,                                     PENNSYLVANIA

                            Appellants

                       v.

JAMES P. SNELL, ANADARKO E & P
COMPANY, LP, AND CHESAPEAKE
APPALACHIA, LLC,

                            Appellees                No. 2266 MDA 2015


             Appeal from the Judgment Entered February 12, 2016
               in the Court of Common Pleas of Bradford County
                       Civil Division at No.: 345-CV-2009


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 22, 2017

        Appellants, Dr. Timothy J. Hoffman and Dr. Karen D. Hoffman,

plaintiffs at the bench trial, appeal from the judgment entered in favor of

defendants/Appellees, James P. Snell, Anadarko E & P Company, LP, and

Chesapeake Appalachia, LLC. Appellants had alleged that Mr. Snell violated

deed restrictions on land they had sold to him, by leasing oil and gas rights

to the other Appellees. They seek a new trial. The trial court concludes that

Appellants’ issues on appeal are waived for failure of timely objection. After

independent review, we agree. Accordingly, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        We derive the facts of the case from the trial court opinion and our

independent review of the record.              (See Opinion of the Court Pursuant to

Rule 1925(a) [Trial Court Opinion], filed 4/05/16).1 In 2003, the Hoffmans

(husband and wife) sold seventy acres of property adjoining their residential

plot of forty-five acres to Timothy’s cousin, Appellee James Snell.

        The deed, drafted by the Hoffmans’ lawyer, contained several

restrictions.2   These included a prohibition of the use of the premises “for

any commercial enterprise whether fee-generating or not;” it provided that

there should be “no improvements whatsoever” (with the express exception

of dirt roadways for hunting); and barred the grant “to any third party [of]

an easement, right-of-way, or license of any kind, for any purpose over or

across said premises.”        (Deed between Timothy J. Hoffman and Karen D.

Hoffman, and James P. Snell, November 26, 2003, at unnumbered page 2).

        On June 13, 2006, Snell signed an oil and gas lease with Anadarko.

(See Trial Ct. Op., at 1). Appellants brought a counseled complaint, seeking

a declaratory judgment, on May 21, 2009.

        Pertinent to the issues raised in this appeal, the trial court ruled that

the term “premises” was ambiguous, particularly as to whether it included

____________________________________________


1
    The trial court’s opinion is dated April 1, 2016.
2
  Appellants maintain that they intended the restrictions imposed to preserve
the rural farmland character of the neighborhood in its “pristine” state.
(See, e.g., Appellants’ Brief, at 9, 12).



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the subsurface as well as the surface of the land, and it allowed presentation

of parol evidence to establish the intent of the parties. Similarly, the trial

court ruled that “commercial enterprise” was ambiguous and permitted parol

evidence to ascertain the intent of the parties on that reference as well.

      At trial, the defendants maintained that the character of the

neighborhood had changed with the arrival of multiple oil and gas

operations, such that the purpose of the deed restrictions (maintenance of

the rural, farmland character of the vicinity) no longer applied.

      After the bench trial, both parties submitted court-ordered proposed

findings of fact and conclusions of law.    The trial court, as already noted,

found in favor of the defendants, now Appellees, by order and with

accompanying Findings of Fact and Memorandum Opinion, dated March 2,

2015, and filed March 6, 2015.

      The trial court found that plaintiffs had permitted a significant amount

of oil and gas development to occur on their own property, including the

placement of a 900 foot pipeline requiring a 50 foot right-of-way, and a

valve station.   (See Findings of Fact, 3/06/15, at 5; see also N.T. Trial,

3/06/14 at 103, 113).     Timothy’s parents, who live on the adjacent plot

(from which his plot was sub-divided), had also signed multiple oil and gas

related agreements for the use of their land.     (See N.T. Trial, 3/06/14 at

155; see also Findings of Fact, 3/06/15, at 6).




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       Appellants filed post-trial motions, which the trial court denied on

November 24, 2015. This timely appeal followed.3

       Appellants raise five questions on appeal:

             A. Whether the trial court erred in ruling that the term
       “premises” as used in the deed was ambiguous and in allowing
       parol evidence on the intention of the parties?

             B. Whether the trial court erred in ruling that the term
       “premises” as used in the deed referred only to the surface of
       the land and not the subsurface?

              C. Whether the trial court erred in ruling that the term
       “commercial enterprise” as used in the deed was ambiguous and
       in allowing parol evidence on the intention of the parties?

            D. Whether the trial court erred in holding that the
       [Appellees] met their burden of proving that the character of the
       neighborhood had changed?

              E. Whether the trial court erred in ruling that the lease
       with Anadarko did not violate the third deed restriction which
       restricted Snell and his successors from granting any right of
       way of license for any purpose over and across said premises?

(Appellants’ Brief, at 5) (some capitalization omitted).

       Before we can address the merits of Appellants’ claims, we must first

determine whether their claims have been waived. The trial court concludes

that they are. (See Trial Ct. Op., at 4, 6, 7, 9, 13, 15).


____________________________________________


3
  Appellants timely filed a court-ordered concise statement of errors on
January 20, 2016. The statement raised ten issues, reduced to five on
appeal. We deem the additional five issues abandoned. The trial court
entered judgment on February 12, 2016, and filed its Rule 1925(a) opinion
on April 5, 2016. See Pa.R.A.P. 1925.



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            The application of the waiver doctrine raises a question of
      law. In re Ischy Trust, 490 Pa. 71, 415 A.2d 37, 43 (1980).
      On questions of law, our standard of review is de novo and our
      scope of review is plenary. In re Hickson, 573 Pa. 127, 821
      A.2d 1238, 1242 (2003).

Straub v. Cherne Indus., 880 A.2d 561, 566 n.7 (Pa. 2005).

      Here, counsel for Appellants challenges the assertion of waiver.     He

argues that he preserved the five issues for review by raising them in

[Appellants’] Proposed Findings of Fact and Conclusions of Law.           (See

Appellants’ Brief, at 34-37; Appellant’s [sic] Reply Brief, at 1; see also

Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, 7/29/14, at 1-

49). Then, in the post-trial motion, counsel referenced either the Proposed

Findings of Fact or Conclusions of Law as the place where the issues were

raised and preserved. Counsel maintains that this procedure preserved all

issues as “specifically allowed” by Pennsylvania Rule of Civil Procedure

227.1(b)(1). (Appellants’ Brief, at 36). We disagree.

      Preliminarily, we note that many of the purported objections were

neither contemporaneous nor specific, as discussed hereafter.        To the

contrary, the Proposed Findings/Conclusions of Law is a forty-nine page

document which essentially consists of a lengthy (and often repetitive)

reargument of the underlying case. The supposed identification of the place

where an objection was first raised and preserved is often obscure to non-

existent.




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      For example, the first assertion that an issue was preserved states the

following: “This issue [trial court ruling on alleged ambiguity of “premises”]

was preserved in Plaintiffs’ proposed Conclusions of Law #2 to #21.”

(Plaintiffs’ Motions For Post-Trial Relief, 3/16/15, at 3 ¶ 6) (emphasis

added).

      An action is objected to or it is not.     The requirement to make a

timely, specific, contemporaneous objection is not satisfied by an after-the-

fact reference to a twenty paragraph narrative which in the penultimate

paragraph finally quotes the three deed restrictions at issue, which happen

to include the word “premises,” without further discussion of the purported

error or objection.

      Similarly, counsel asserts “[t]his issue [ruling on whether signing lease

agreement or providing right of way ipso facto violated third restriction in

deed] was preserved in Plaintiff’s [sic] Proposed Conclusions of Law #1 and

#41 to #45.” (Plaintiffs’ Post Trial Motion, at 7 ¶ 28). The six referenced

paragraphs do reargue the proposition that signing the oil and gas lease

agreement was a per se violation of the deed restriction.       None of them,

however, even mention, let alone assert, specific trial court error.

      Counsel’s unsupported interpretation of the requirements for issue

preservation ignores a long line of caselaw and rules which direct that

timely, specific, contemporaneous objection is required to allow the jurist an

opportunity to correct an error, or to preserve the issue for appeal.


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        Pa.R.C.P. 227.1(b) provides, in pertinent part, as follows:

               (b) Except as otherwise provided by Pa.R.E. 103(a), 4 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 findings of fact or conclusions of law, offer of
           proof or other appropriate method at trial; and

              Note: If no objection is made, error which could
        have been corrected in pre-trial proceedings or during
        trial by timely objection may not constitute a ground for
        post-trial relief.

              Pa.R.E. 103(a) provides that the specific ground for an
        overruled objection, or the substance of excluded evidence, need
        not be stated at or prior to trial, or without having made an offer
        of proof, if the ground of the objection, or the substance of the
        evidence sought to be introduced, was apparent from the
        context.

____________________________________________


4
    Pennsylvania Rule of Evidence 103(a) provides:

               (a) Preserving a Claim of Error. A party may claim
        error in a ruling to admit or exclude evidence only:

              (1) if the ruling admits evidence, a party, on the record:

                (A) makes a timely objection, motion to strike, or
           motion in limine; and

                (B) states the specific ground, unless it was
           apparent from the context; or

              (2) if the ruling excludes evidence, a party informs the
        court of its substance by an offer of proof, unless the substance
        was apparent from the context[.]

Pa.R.E. 103(a) (emphases added).




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              (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.

Pa.R.C.P. 227.1(b) (emphases added).

      Counsel offers no supporting authority whatsoever, other than the

bare quotation of the rule itself (omitting the pertinent note), for his

interpretation of the rule’s requirements. (See Appellants’ Brief, at 34-37;

Appellant’s [sic] Reply Brief, at 1).

      Our Supreme Court has explained:

            We turn first to the threshold issue of waiver. Our analysis
      begins with the Pennsylvania Rules of Civil Procedure. Rule
      227.1, which governs post-trial relief, provides in relevant
      part that a ground may not serve as the basis for post-
      trial relief, including a judgment n.o.v., unless it was
      raised in pre-trial proceedings or at trial. The Rule further
      notes that error that could have been corrected by timely
      objection in the trial court may not constitute a ground for such
      a judgment. Pa.R.C.P. 227.1(b)(1).

             In this regard, Rule 227.1(b)(1) incorporates this court’s
      landmark decision in Dilliplaine v. Lehigh Valley Trust Co.,
      457 Pa. 255, 322 A.2d 114 (1974), which abrogated the doctrine
      of basic and fundamental error and requires litigants to make
      timely objections at trial in order to preserve issues for post-
      trial relief and appellate review on the merits. See Explanatory
      Comment 1983 to Pa.R.C.P. 227.1; Criswell v. King, 575 Pa.
      34, 834 A.2d 505, 509-10 (2003).             By our decision in
      Dilliplaine, we sought to advance judicial economy and the
      efficient use of judicial resources at trial and on appeal by
      insuring that the trial court was given the opportunity to correct
      alleged errors. Dilliplaine, 322 A.2d at 116-17.

Straub, supra at 566 (footnotes and one citation omitted) (emphasis

added). Similarly,

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           We disagree with [appellant] that its objection, which it
     concedes was offered for the first time in a post-trial motion,
     was timely under the circumstances.           Under prevailing
     Pennsylvania law, a timely objection is required to preserve an
     issue for appeal. Pa.R.C.P. No. 227.1(b)(1) & n.; Pa.R.A.P. 302;
     Straub v. Cherne Indus., 583 Pa. 608, 880 A.2d 561, 567
     (2005); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255,
     322 A.2d 114, 116–17 (1974).

Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 45 (Pa. 2011), cert.

denied, 133 S. Ct. 51 (2012).

     This Court has added:

               In order to preserve an issue for appellate review, a
        party must make a timely and specific objection at the
        appropriate stage of the proceedings before the trial court.
        Failure to timely object to a basic and fundamental error
        will result in waiver of that issue. On appeal the Superior
        Court will not consider a claim which was not called to the
        trial court’s attention at a time when any error committed
        could have been corrected. In this jurisdiction . . . one
        must object to errors, improprieties or irregularities at the
        earliest possible stage of the adjudicatory process to afford
        the jurist hearing the case the first occasion to remedy the
        wrong and possibly avoid an unnecessary appeal to
        complain of the matter.

     Thompson v. Thompson, 963 A.2d 474, 475–476 (Pa. Super.
     2008) (quoting Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa.
     Super. 2000)).

In re S.C.B., 990 A.2d 762, 767 (Pa. Super. 2010).




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       Here, by counsel’s own representation, only one timely, specific,

contemporaneous objection was made at trial.       (See Plaintiffs’ Motions for

Post-Trial Relief, at 4-6).5

       This is not a situation where the trial court has arbitrarily insisted on

the invocation of “magic words,” as counsel supposes. (Appellants’ Brief, at

36).   This is a fundamental failure to comply with all of the provisions of

Pa.R.C.P. 227.1, as originally held by our Supreme Court in Dilliplaine,

supra, and as subsequently explained in Straub, supra at 566-67,

Samuel-Bassett, supra at 45, and In re S.C.B., supra at 767.              All of

Appellants’ issues are waived.

       In light of our decision, we do not address, nor do we take any

position on, the trial court’s rulings on the merits of the issues that

Appellants raised in requesting a new trial.




____________________________________________


5
  Counsel was granted an exception when the court sustained an objection
to his line of questioning about the use of “premises” three years after the
2003 deed, in the lease between Snell and Anadarko. (See N.T. Trial,
3/07/14, at 61). In the post-trial motion, counsel cites the same exception
as the point of preservation for three separate objections. (See Plaintiffs’
Motions for Post-Trial Relief, at 4 ¶ 14; 4-5 ¶ 15; 5-6 ¶ 18).



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     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/2017




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