        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank J. Cservak and                       :
Judith Barie Cservak,                      :
                           Appellants      :   No. 1888 C.D. 2017
             v.                            :   Argued: October 16, 2018
                                           :
Pennsylvania Turnpike Commission           :

BEFORE:      HONORABLE ROBERT SIMPSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                           FILED: November 6, 2018

             Before us is an appeal filed by Frank J. Cservak and Judith Barie Cservak
(Cservaks) of the Washington County Court of Common Pleas’ (trial court) order
awarding damages to the Pennsylvania Turnpike Commission (Commission) for
removing fixtures from their residential property taken for highway purposes, and
the Commission’s motion to quash the appeal for failure to file post-trial motions.
In mediation following an eminent domain proceeding, the parties negotiated just
compensation for the property and dates of dispossession in a settlement agreement
(Settlement). Upon discovering the removal of fixtures and buildings from the
property, the Commission filed a petition seeking damages from the Cservaks.
Relevant here, the trial court conducted a trial as to the Cservaks’ liability for items
allegedly removed. After determining the Cservaks’ liability, the trial court held a
hearing on damages. The Cservaks appeal the trial court’s order regarding damages;
however, they did not file a post-trial motion to preserve issues for our review. In
addition, the Cservaks did not brief the alleged waiver resulting from their failure to
file a post-trial motion. Because the Cservaks’ failure to file post-trial motions
resulted in waiver, we quash their appeal.


                                   I. Background
             In 2012, the Commission condemned, for highway purposes, real
property then owned by the Cservaks at 3852 Morganza Road, in Cecil Township,
Washington County (Property). The taking involved 6.5957 acres of realty and
improvements, including a residence, an artist studio and a garage.


             Following the 2013 Board of View in the eminent domain proceeding,
appeals, and multiple attempts at settlement, the parties utilized this Court’s
mediation program to determine just compensation for the taking. In the resulting
Settlement, the parties agreed upon $1,604,000 as just compensation for the
Property, plus improvements. The Settlement set September 5, 2014, as the deadline
for payment. Provided payment was made by that date, the Cservaks were required
to vacate the Property by February 17, 2017. The parties did not execute any
separate retention agreements relative to the residence or the other structures built
on the Property. After executing the Settlement, the Commission marked the matter
on the trial court’s docket settled and discontinued.


             In early 2015, the Cservaks requested an extension of the move-out date.
Anticipating disputes related to taking possession, the Commission filed a praecipe to
reopen the matter, and sought a rule to show cause why a writ of possession should
not issue. The trial court issued the rule; the Cservaks did not respond.




                                           2
             Prior to the move-out date, a Commission employee traveling in the
vicinity of the Property inspected it and noted that the main residence was stripped
of baseboards, appliances, lighting and the like, and that the two temporary
structures (art studio and pole building) were removed from the Property. The
Commission took the position that the actions devalued the Property and that the
Cservaks were required to pay damages for the decreased value of the Property.


             Thereafter, the Commission filed a petition for reimbursement of
damage to real property and conversion (Damages Petition) seeking damages for the
removed items. The Cservaks filed an answer and a counterclaim for breach of
contract because the Commission did not pay the agreed-upon compensation by the
deadline, instead making payment one week later, on September 12, 2015.


             The trial court scheduled a trial on the Damages Petition. The trial court
bifurcated the trial into liability and damages phases. In Spring of 2016, it conducted
a two-day bench trial regarding the Cservaks’ liability for the allegedly removed
items.


             Following the trial, briefing and argument, the trial court found that the
Cservaks did not contest removal of certain items from the Property (Removed Items),
only disclaiming responsibility for their removal. In its opinion, the trial court
classified the Removed Items as either personalty that was not part of the just
compensation, or fixtures that were taken with the Property, the value of which was
included within the just compensation set forth in the Settlement. Tr. Ct., Slip Op.,
1/13/17 (Liability Opinion).



                                          3
             Thereafter, in June 2017, the trial court held a bench trial as to the
amount of damages. Both parties presented evidence, including expert testimony,
regarding the calculation method and amount of damages during the proceeding.
The Cservaks also testified as to the salvage value of the Removed Items.


             Ultimately, the trial court granted the Commission’s Damages Petition.
Specifically, “after consideration of the evidence and testimony, the [trial court] …
ORDER[ED] [the Cservaks] to pay the [Commission] as damages for removal from
[the Property] certain fixtures the following amounts:           Garage/shop building
$89,575.36, Residence $180,435.61, total $270,010.97.” Reproduced Record (R.R.)
at 1034a (emphasis added). Neither party filed a praecipe to enter judgment.


             The Cservaks filed a notice of appeal to the Superior Court, which
transferred the matter to this Court. In its Pa. R.A.P. 1925(a) opinion, the trial court
noted the Cservaks failed to file post-trial motions, resulting in waiver of issues on
appeal.


             The Commission filed a motion to quash the appeal, emphasizing the
Cservaks’ failure to file post-trial motions and asserting the trial court’s order was not
final when it was not reduced to judgment. Based on the motion to quash, the Cservaks’
response, and the Commission’s reply, this Court directed that the motion to quash
would be decided with the merits. Cmwlth. Ct. Order, 1/3/18 (Leadbetter, S.J.).




                                            4
               The Cservaks briefed the merits whereas the Commission also briefed
the motion to quash. Following briefing and argument, this matter is ready for
disposition.


                                        II. Discussion
               On appeal,1 the Cservaks argue the trial court erred in dismissing their
counterclaim and in determining the damages. They assert the trial court erred by
crediting the Commission’s experts, disregarding their evidence as to damages, and
deeming the cost of restoration as the appropriate measure of damages as opposed
to the cost of replacement or salvage value. Notably, the Cservaks did not address
the Commission’s motion to quash in its main brief or file a reply brief.


               In its motion to quash, the Commission argues the Cservaks’ failure to
file a post-trial motion resulted in waiver. It also notes there was no entry of
judgment, which is a prerequisite to filing an appeal.                As to the merits, the
Commission contends the trial court did not err in its damages calculation. It
maintains the trial court had the discretion to credit its experts and to disregard the
Cservaks’ evidence as to salvage value of Removed Items.


                                    A. Motion to Quash
               Before reaching the merits, we consider whether the Cservaks
preserved any issues on appeal. Coal Tubin’ PA, LLC v. Cambria Cty. Transit Auth.,
162 A.3d 549 (Pa. Cmwlth. 2017). The Commission argues the Cservaks waived all

       1
          “Our standard of review of a non-jury trial is to determine whether the findings of the
trial court are supported by competent evidence, and whether an error of law was committed.”
Coal Tubin’ PA, LLC v. Cambria Cty. Transit Auth., 162 A.3d 549, 554 n.3 (Pa. Cmwlth. 2017).


                                               5
issues, precluding our review of the merits because they failed to file a post-trial
motion or have judgment entered prior to filing an appeal. Accordingly, it asks this
Court to quash the Cservaks’ appeal.


                                  1. Post-Trial Motions
             There is no dispute that the Cservaks did not file a post-trial motion
pursuant to Pa. R.C.P. No. 227.1. Pa. R.C.P. No. 227.1(c) provides: “Post-trial
motions shall be filed within ten days after (1) verdict, discharge of the jury because
of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of nonsuit or
the filing of the decision in the case of a trial without jury.” Pa. R.C.P. No. 227.1(c)
(emphasis added).


             Precedent is clear that “‘[o]nly issues which a party specifically raises
in its post-trial motions are preserved and will be considered on appeal.’” City of
Phila. v. New Life Evangelistic Church, 114 A.3d 472, 477 (Pa. Cmwlth. 2015)
(citation omitted). Filing of a Pa. R.A.P. 1925(b) Statement does not cure the failure
to file post-trial motions. The Ridings at Whitpain Homeowners Ass’n v. Schiller,
811 A.2d 1111 (Pa. Cmwlth. 2002) (appellants not excused from filing post-trial
motions based on confusion as to equity procedure under former Pa. R.C.P. No.
1517). A party’s failure to file post-trial motions in accordance with Rule 227.1
compels dismissal of the appeal. P.S. Hysong v. Lewicki, 931 A.2d 63 (Pa. Cmwlth.
2007). When an issue is not raised in a post-trial motion, it is waived. Id.


             Post-trial motion practice “permit[s] the trial court to correct its own
errors before appellate review is commenced.” Motorists Mut. Ins. Co. v. Pinkerton,



                                            6
830 A.2d 958, 964 (Pa. 2003). The waiver rule thus promotes judicial economy.
Post-trial motions also frame the issues for appropriate appellate review. Oak Tree
Condo. Ass’n v. Greene, 133 A.3d 113 (Pa. Cmwlth. 2016).


             “To warrant the heavy consequence of waiver, … the applicability of
[Pa. R.C.P. No. 227.1] should be apparent upon its face or, failing that, in clear
decisional law construing the [r]ule.” Newman Dev. Grp. of Pottstown, LLC v.
Genuardi’s Family Mkts., Inc., 52 A.3d 1233, 1247 (Pa. 2012) (construing the
meaning of “trial” under Rule 227.1).


             In construing Rule 227.1, our Supreme Court determined that findings
of fact and an evidentiary hearing are indicia of trial, placing counsel on notice of the
need to file post-trial motions. Id. Thus, “[the Court] nevertheless signaled that a
hearing that bears the hallmarks of a trial by requiring or admitting, or as in this case,
offering a party the opportunity to present additional evidence, does constitute a ‘trial’
for the purposes of Pa. R.C.P. No. 227.1.” New Life Evangelistic Church, 114 A.3d
at 478 (holding appellant waived all issues for failure to file post-trial motions).


             In response to the motion to quash, the Cservaks take the position that
the trial court held a “hearing” as opposed to a trial.          Notwithstanding their
characterization, the title of a proceeding does not relieve the Cservaks from their
obligations in post-trial practice. Id. Further, although this Court directed that the
motion to quash would be decided along with the merits, the Cservaks declined to
brief the alleged waiver of issues on appeal. As a result, those issues are also waived
because the Cservaks did not address them in their brief. See Pa. R.A.P. 2116; see



                                            7
also Wicker v. Civil Serv. Comm’n, 460 A.2d 407 (Pa. Cmwlth. 1983) (construing
Pa. R.A.P. 2116).


             Nonetheless, we note that in their response to the motion to quash, the
Cservaks cite one case from our sister appellate court in support: Chaulkey v. Roush,
757 A.2d 972 (Pa. Super. 2000) (en banc). There, in a split decision, the Superior
Court excused an attorney’s failure to file post-trial motions based on its recognition
of practitioners’ confusion regarding post-trial practice in equitable proceedings.


             Chaulkey is inapposite. As it arose from a matter in equity, that appeal
involved different procedures, and at that time, different rules. Also, it pre-dated our
Supreme Court’s analysis of the meaning of “trial” under Rule 227.1 in Newman.


             Moreover, despite quoting extensively (two single-spaced pages) from
the Superior Court’s Chaulkey decision, the Cservaks do not acknowledge our highest
Court’s subsequent opinion in Chaulkey v. Roush, 805 A.2d 491 (Pa. 2002). See
Appellants’ Resp. at 4-6. In this seminal case, our Supreme Court explained Rule
227.1 established a standard post-trial practice for both actions at law and equity. It
thus abrogated the 30 years of case law the Cservaks relied upon in their response.


             Significantly, the Supreme Court disagreed with the position the
Cservaks advance here. It expressly held that appellants in legal and equitable matters
must file post-trial motions prior to appeal. Acknowledging practitioners’ prior




                                           8
confusion as to the application of Rule 227.1 in equity actions,2 the Supreme Court
specified its holding applied “prospectively only.” Id. at 497.


                The order from which the Cservaks appealed invokes the post-trial
motion requirement in Rule 227.1. Newman Dev. Grp.; New Life Evangelistic
Church. The trial court held a bifurcated trial regarding liability and damages, and
it issued findings regarding liability and damages based on the evidence the parties
presented.


                Because they did not file post-trial motions following a proceeding that
had the indicia of trial, the Cservaks waived all issues on appeal. Newman Dev. Grp.
Therefore, this Court grants the motion to quash and dismisses the appeal. Borough
of Harvey’s Lake v. Heck, 719 A.2d 378 (Pa. Cmwlth. 1998).


                                      2. Entry of Judgment
                The Commission also argued that the order appealed from is not final.
As our Supreme Court noted, “a trial court’s order at the conclusion of a trial …
simply cannot become final for purposes of filing an appeal until the court decides
any timely post-trial motions.” Chaulkey, 805 A.2d at 496. Regardless, because we
dismiss the appeal for failure to file post-trial motions, this issue is moot.3

        2
          The Supreme Court abrogated cases excusing compliance with Rule 227.1 when a trial court
did not clearly comply with former Pa. R.C.P. No. 1518 (relating to equitable relief). It explained it
rescinded Rule 1518 in 1984 and replaced it with Rule 227.1, which applied to all post-trial practice.

        3
          In the interest of judicial economy, if the only fault with an order is that it is not reduced to
judgment, a court may excuse that step. Chaulkey v. Roush, 805 A.2d 491 (Pa. 2002). However,
where there is also a failure to file post-trial motions, dismissal is proper. See, e.g., Cooper v. Dep’t
of Corr. (Pa. Cmwlth., No. 691 C.D. 2016, filed October 26, 2016), 2016 WL 6246945 (unreported).



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                                     B. Merits
            Because this Court grants the motion to quash, and dismisses the
appeal, we do not reach the merits. P.S. Hysong.


                                III. Conclusion
            For the foregoing reasons, we grant the Commission’s motion to quash
and dismiss the Cservaks’ appeal.




                                     ROBERT SIMPSON, Judge




                                       10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Frank J. Cservak and                  :
Judith Barie Cservak,                 :
                        Appellants    :   No. 1888 C.D. 2017
            v.                        :
                                      :
Pennsylvania Turnpike Commission      :


                                 ORDER


            AND NOW, this 6th day of November, 2018, the Pennsylvania
Turnpike Commission’s motion to quash the appeal filed by Frank J. Cservak and
Judith Barie Cservak is GRANTED, and the appeal is DISMISSED.




                                     ROBERT SIMPSON, Judge
