J-A10011-14

                              2014 PA Super 180

LINDA AGOSTINELLI,                      : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                  Appellant             :
                                        :
            v.                          :
                                        :
JAMES  C.  EDWARDS,            JON   D. :
EDWARDS, AND LETWO            VENTURES, :
LLC.,                                   :
                                        :
                  Appellee              : No. 1248 MDA 2013

                Appeal from the Order entered June 14, 2013,
                    Court of Common Pleas, Centre County,
              Civil Division at No(s): 2006-3286 and 2006-4444

BEFORE: DONOHUE, ALLEN and STABILE, JJ.

OPINION BY DONOHUE, J.:                           FILED AUGUST 20, 2014



entered on June 14, 2013 by the Court of Common Pleas of Centre County

following proceedings on remand from this Court. After careful review, we

affirm in part and vacate in part.

      The relevant facts and procedural history in this case are as follows.




on several investments. On May 3, 2000, Mrs. Agostinelli, Dr. Edwards, and



for the purpose of buying and developing property for the Barnbridge
J-A10011-14


assigned a 50 percent interest to Mrs. Agostinelli and a 25 percent interest

each to Dr. Edwards and Jon.




August 31, 2006, the Edwardses filed suit against Mr. and Mrs. Agostinelli



misrepresentation, breach of contract, and conversion.    On November 16,

2006, the Agostinellis filed their own suit against the Edwardses.        On

December 5, 2007, the trial court consolidated the two lawsuits.

     On June 4 and 5, 2009, the trial court held a non-jury trial and on

January 5, 2010, the trial court conducted a hearing on damages. On June

17, 2010, the trial court entered an opinion and verdict finding, inter alia,

that the Agostinellis improperly converted certain LETWO funds to their

benefit, but that they had not committed fraud.     Trial Court Opinion and

Verdict, 6/17/10, at 4-11.      The trial court also determined that the

Agostinellis had personally benefitted from their conversion of LETWO funds.

Id. at 7, 11. The trial court found that LETWO had $480,693.48 in assets

and that Mrs. Agostinelli was entitled to 50 percent of those assets, or

$240,346.74. Id. at 12. The trial court further found that the Edwardses

had a combined capital account of $283,239.89 and that the Agostinellis had

a negative capital account of $186,224.92, which represented the amount of

money they converted from LETWO.        Id.   The trial court ruled that the



                                    -2-
J-A10011-14


Agostinellis would have to contribute that $186,224.92 plus an additional

monetary capital contribution of $141,619.94 for a total contribution of



                                        Id.     The trial court then credited the



LETWO, bringing the amount of damages that the trial court required them

to pay LETWO to $87,498.12.               Id.    The trial court also ordered the

Agostinellis to pay Dr. Edwards $28,247.16 and Jon $17,075.59, but denied

                                                     Id. at 13-14.

      On June 28, 2010, the Edwardses and Agostinellis both filed motions

for post-trial relief.    On October 29, 2010, the trial court issued a new

opinion and order finding that, inter alia

monetary    capital      contribution    of   $283,239.89,   as      opposed   to   the

$141,619.94 provided for in the June 17, 2010 opinion and order, in order to

even out her capital account with the Edwardses. Trial Court Opinion and

Order, 10/29/10, at 10. Thus, the trial court determined that after adding

that $283,239.89 to the $141,619.941 that the Agostinellis converted from




1
   We note that the $141,619.94 the trial court uses in its October 29, 2010
opinion and order to represent the amount that the Agostinellis converted
from LETWO is incorrect. See Trial Court Opinion and Order, 10/29/10, at
10. This figure should match the number provided by the June 17, 2010
opinion and verdict, which was $186,224.92. See Trial Court Opinion and
Verdict, 6/17/10, at 12. Though the Edwardses have never challenged the
$141,619.94 figure from the October 29, 2012 opinion and order, the trial


                                          -3-
J-A10011-14


LETWO, the Agostinellis owed LETWO $424,859.83. Id. After crediting Mrs.

Agostinelli with her 50 percent interest in LETWO ($240,346.74), the trial

court ordered the Agostinellis to pay LETWO $184,513.09.2 Id. at 10, 12.

Addition

company having credited her with her 50 percent interest. Id. at 9-10, 12.

     On November 8, 2011, Dr. Edwards and Jon filed a motion for

reconsideration of the October 29, 2010 opinion and order. On November

17, 2010 the trial court expressly granted reconsideration, but affirmed the

October 29, 2010 opinion and order on January 17, 2011.

     On January 31, 2011, the Edwardses appealed to this Court and on

February 10, 2011, the Agostinellis filed a cross-appeal.    A panel of this

                                                         inter alia, that Mr.

Agostinelli (but not Mrs. Agostinelli) had committed fraud and that the trial

court should have awarded the Edwardses six percent simple interest per

annum on the funds that the Agostinellis converted.          Agostinelli v.

Edwards, 223 MDA 2011, 6-17 (Pa. Super. March 12, 2012) (unpublished

memorandum).      Additionally, the panel determined that the trial court

should not have required Mrs. Agostinelli to make a monetary capital



court corrected the error in its recalculation of damages on remand.     See
Trial Court Opinion and Order, 6/14/13, at 4-5.
2
   This order did not change the amount that the trial court required the
Agostinellis to pay Dr. Edwards and Jon. See Trial Court Opinion and Order,
10/29/10, at 12.


                                    -4-
J-A10011-14


contribution to LETWO. Id. at 20-

                                                       Id. at 24-26. Notably,

                                                                              rs.

Agostinelli with her 50 percent interest in the company.              The panel



                                                        Id. at 29.

      On remand, the trial court held an evidentiary hearing on May 9, 2012,



fraud and the appropriate calculation of simple interest on the conversion

damages. Following this evidentiary hearing, on February 7, 2013, the trial

court, inter alia, determined that Mrs. Agostinelli would not receive credit for

her 50 percent interest in LETWO because she had personally benefitted by

converting LETWO funds. Trial Court Opinion and Order, 2/7/13, at 5-6. As

a result, the trial court awarded damages to LETWO in the amount of

$226,174.92,3 but did not require her to make a monetary capital

contribution to LETWO. Id. at 6-7.

      On   February    21,   2013,   the   Edwardses    filed   a    motion   for

reconsideration of the February 7, 2013 order.        On March 8, 2013, the

Agostinellis filed a combined motion to reopen the record and motion for

reconsideration of the February 7, 2013 order. That same day, and within


3
   The trial court again did not change the amount that it required the
Agostinellis to pay Dr. Edwards and Jon. See Opinion and Order, 2/7/13, at
6-7.


                                     -5-
J-A10011-14


the 30 days during which the trial court had jurisdiction to do so, the trial

court    expressl

Subsequently, on March 14, 2013, the Edwardses filed a motion to strike the



                                                 motion for reconsideration as

an untimely post-trial motion. See

Motion to Reopen the Record and Motion for Reconsideration of the February

7, 2013 Order, 3/14/13, at ¶¶ 2-3. The trial court held a hearing on these

motions on March 25, 2013.

        On June 14, 2013, the trial court entered an opinion and order in

which it held:



             reopen as untimely under [Rule] 227.1 is denied.
             Rule 227.1 provides for post-
             Pursuant to its plain language, the rule does not
             apply to evidentiary hearings, like the post-remand
             damages hearing in this case, that fall short of a full
             trial. See Newman Dev. Group of Pottstown, LLC
                                                   , 52 A.2d 1233
             (Pa. [2012]).

Trial Court Opinion and Order, 6/14/13, at 2. The trial court also increased

the amount the Agostinellis were required to pay LETWO to $278,237.15,4



4
  The trial court made this change due to omissions as well as mathematical
and clerical errors that it made in its February 7, 2013 order. Trial Court
Opinion and Order, 6/14/13, at 3. Additionally, this opinion and order did
not change the amount that the trial court required the Agostinellis to pay
Dr. Edwards and Jon. See id. at 5.


                                      -6-
J-A10011-14


again without requiring Mrs. Agostinelli to make a monetary capital

contribution. Id. at 4-5. The trial court did not alter its original order to the

extent that Mrs. Agostinelli was not credited with her interest in LETWO. On

July 12, 2013, Mrs. Agostinelli filed the instant appeal from the June 14,

2013 order. On August 20, 2013, the trial court ordered Mrs. Agostinelli to

file a statement of errors complained of on appeal pursuant to Pennsylvania

Rule of Appellate Procedure 1925(b)(1).         On September 6, 2013, Mrs.

Agostinelli

order and Rule 1925(b).      On appeal, Mrs. Agostinelli raises the following

issues for review:

              1) DID THE TRIAL COURT COMMIT AN ERROR OF
              BOTH LAW AND FACT IN ATTRIBUTING THE FRAUD
              COMMITTED BY HER HUSBAND TO [MRS.]
              AGOSTINELLI?

              2) DID THE TRIAL COURT COMMIT AN ERROR OF
              LAW   AND    VIOLATION    OF   THE OPERATING
              AGREEMENT     WHEN     IT    EXPELLED  [MRS.]
              AGOSTINELLI FROM MEMBERSHIP OF LETWO, LLC
              WITHOUT PROPERLY CREDITING HER WITH HER
              50% SHARE IN THE CORPORATION, UNJUSTLY
              ENRICHING THE REMAINING MEMBERS WITH ALL
              THE ASSETS OF LETWO, LLC (VALUED AT LEAST AT
              $480,693.48)?

              3) DID THE TRIAL COURT COMMIT AN ERROR OF
              LAW IMPROPERLY INTERP[RE]TING THE SUP[E]RIOR

              [MRS.] AGOSTINELLI PROPER CREDIT FOR HER
              SHARE.




                                      -7-
J-A10011-14


                             5



        Prior to discussing the merits of the issues raised on appeal, we must

first determine whether Mrs. Agostinelli has waived her allegations of error

by failing to file post-trial motions following the proceedings on remand. On

July 30, 2013, this Court entered an Order directing Mrs. Agostinelli to show



Pennsylvania Rule of Civil Procedure 227.1, which requires the filing of post-

trial motions in certain circumstances in order to preserve issues for appeal.

Order, 7/30/13, at 1-2.       On August 5, 2013, Mrs. Agostinelli filed her

response to this Order. In her response, because the Edwardses raised the

issue of her failure to file post-trial motions in the trial court, Mrs. Agostinelli

                                             Newman, in which the trial court

                                                                           like the

post-remand damages hearing in this case,

Response Letter, 8/5/13, at 1 (quoting Trial Court Opinion and Order,



letter, this Court discharged the July 30, 2013 Order that same day,

referring the issue to the merits panel.

        Pennsylvania Rule of Civil Procedure 227.1(c) requires the filing of

post-

because of inability to agree, or nonsuit in the case of a jury trial; or (2)


5
    We reordered the issues that Mrs. Agostinelli raises for ease of review.


                                       -8-
J-A10011-14


notice of nonsuit or the filing of the decision in the case of a trial without



            post-trial relief may not be granted unless the
            grounds therefor . . . 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)(2). Moreover, Pennsylvania Rule of Appellate Procedure

302(a) states t



to the interplay between Civil Rule 227.1 and Appellate Rule 302(a), our

Supreme Court stated:

            Civil Rule 227.1 addresses waiver at the trial court
                                                   -trial power.


            as an appellate matter, establishing the general rule
                             aised in the lower court are waived

            Pa.R.A.P. 302(a).

Newman, 52 A.3d at 1246 n.5.

                                                                         -trial

motions following remand proceedings. The Supreme Court of Pennsylvania

in Newman recently addressed the applicability of Rule 227.1 to an appeal



appellant files post-

not to a later order resulting from a remand proceeding where no new



                                     -9-
J-A10011-14


evidence was taken          Id. at 1245 (emphasis added).         The Court in

Newman sought to determine whether the remand proceeding in question

constituted a trial, triggering the application of Rule 227.1. Id. at 1247.

      The Supreme Court in Newman described the post-appeal procedural

history of that case as follows:


            determination on liability, i.e., that appellants had
            breached their lease with Newman, but found that
            the trial court had not properly calculated damages

            measure of damages provision. The panel remanded
            to the trial court with a general directive to conduct

            memorandum decision, without any specific directive
            or indication concerning the type or scope of
            proceeding that would occur upon remand.

                                   *     *       *


            directive to recalculate damages based upon the
            existing record and the undisputed terms of the
            lease[.]

Id.   On remand, the trial court heard no evidence prior to recalculating

damages. Id. at 1238. Neither party filed any post-trial motions following

the entry of the new judgment.         Id.      The appellants appealed the new

calculation of damages to this Court. Id. This Court quashed the appeal for

failing to file post-trial motions pursuant to Rule 227.1(c), resulting in waiver

of all issues raised on appeal. Id.




                                       - 10 -
J-A10011-14




discussed the reasoning of Lenhart v. Travelers Insurance Co., 596 A.2d

162, 163 (Pa. Super. 1991). See Newman, 52 A.3d at 1249-51. It further

differentiated the case of Cerniga v. Mon Valley Speed Boat Club, Inc.,

862 A.2d 1272, 1273 (Pa. Super. 2004), from the circumstances before it.

See Newman, 52 A.3d at 1249-51.

      Lenhart

on the record and briefs.    Lenhart, 596 A.2d at 163-64.       Neither party

presented any evidence to the trial court. Id. at 164. Our Court rejected



appeal for failing to file post-trial motions under Rule 227.1(b). Id. We held

that because

           the decision by the trial court was based solely on its
           consideration of the record, without the introduction
           of any evidence, it clearly is an order either
           disposing of what in effect were cross-motions for
           summary judgment or at the very least, an order
           entered in a proceeding that did not constitute a
           trial.

Id.   Thus, we concluded that post-trial motions were not required under

Rule 227.1. Id.

      In Cerniga, following the filing of post-trial motions, the appellant




                     Cerniga, 862 A.2d at 1274. On remand, the trial court



                                    - 11 -
J-A10011-14


made the ordered additional factual findings and legal conclusions.       Id.

Prior to appeal from the remand proceedings, the appellant did not file any

post-trial motions. Id. We found as follows:

            By failing to file post-
            new order, which was based on these new factual
            findings and conclusions of law, [the appellant]
            frustrated the purpose of Rule 227.1 and deprived
            the trial court of an opportunity to correct any errors
            in its new ruling, albeit one that was consistent with
            its prior ruling. Indeed, some of the issues which
            [the appellant] now raises on appeal specifically
            involve the additional factual findings and legal
            conclusions entered by the trial court on remand.

Id. at 1274-75. Therefore, this Court ruled that the appellant had failed to

preserve any issues for review and quashed the appeal.           Id. at 1275.

Cerniga instructed that the failure to file post-trial motions following an

order on remand in which the trial court made additional factual findings and

conclusions of law is grounds for waiver of issues on appeal. Id. at 1274-

75. Cerniga                                                           Newman

decision.

Mkt., 18 A.3d 1182, 1188 (Pa. Super. 2011), vacated, 52 A.3d 1233 (Pa.

2012).

      Examining Lenhart and Cerniga, the Supreme Court in Newman

ruled as follows:

            Looking to Lenhart and Cerniga, not for guidance
            as to the actual scope of Rule 227.1 as conveyed by
            its language, but rather for what those decisions
            reasonably    conveyed    to   practicing  attorneys



                                    - 12 -
J-A10011-14


          regarding what triggers the post-trial motion
          requirement of the Rule in remand scenarios, we
          believe that the waiver holding below cannot stand.
          Cerniga stressed that

          law. A party or attorney reading Lenhart and
          Cerniga could reasonably conclude that a remand
          proceeding before the trial court that does not
          involve taking new evidence or resolving a new
          factual dispute is not a trial within the meaning of
          Rule 227.1, and does not require the filing of new
          post-trial motions. Such a reading is buttressed by
                                              -trial motions are
                                              proceedings which

          the best reading of the Superior Court decisional law,
          the fact remains that the argument forwarded here
          concerning the proper scope of Rule 227.1 is an
          argument that was not forwarded in Cerniga, and
          that is enough to take this case out of that decisional
          rule.

          In short, we harbor no doubt that, under the

          appropriate case to find that Rule 227.1 required the
          filing of post-trial motions. But, having said that, we
          stress that our task encompasses more than merely
          interpreting and aligning the decisional law of the
          lower courts concerning our Civil Rules. Our primary
          holding     remains     that,   notwithstanding      the
          interpretation of the Superior Court which was

          overriding purpose, the proper interpretation of
          the Rule is that it does not purport to address
          the remand scenario, and thus a party cannot
          be faulted upon pain of waiver for failing to
          file post-trial motions to a proceeding upon
          remand which amounts to less than an actual
          trial. A remand proceeding such as the one
          here, that relies on an existing record, is not a
          trial even if the trial court draws different
          conclusions from that record to comport with




                                   - 13 -
J-A10011-14


              proceeding in this instance, where the trial
              judge merely reached a different damage
              calculation based upon facts and contract

              and Rule 227.1 does not apply.

Newman, 52 A.3d at 1250-51 (emphasis added). Therefore, based on this

analysis, the Supreme Court vacated the decision of the Superior Court and

remanded the case to this Court for a consideration of the merits of the

appeal. Id.

      The Supreme Court in Newman did not explicitly overrule Cerniga.

See id. at 1251. We conclude, however, that the Supreme Court implicitly

did so. Cerniga, in which an appeal was quashed for failure to file post-trial

motions, did not involve a remand proceeding where new evidence was

introduced. See Cerniga, 862 A.2d at 1274-75. The Newman Supreme

Court ruled as follows:

does not [1] involve taking new evidence or [2] resolv[e] a new factual

dispute is not a trial within the meaning of Rule 227.1, and does not require

the filing of new post-               Newman, 52 A.3d at 1251. Thus, it is

apparent from Newman that if, on remand, a trial court relies on the

existing record to draw conclusions consistent with the remand directive,

post-trial motions are not required prior to a party appealing the remand

decision to this Court. Id. at 1251. Cerniga cannot withstand scrutiny in

light of this holding. See Cerniga, 862 A.2d at 1274-75.




                                    - 14 -
J-A10011-14


      In the wake of Newman, it is unclear what remand proceedings

require the filing of post-trial motions to preserve matters for appeal. For

example, there would appear to be no question that, if our Court were to

remand a case for a new trial, the proceedings that would take place on

remand would be a trial and Rule 227.1 would apply. However, the instant

matter falls into a gray area.

      First, in this case, on remand, the trial court held an evidentiary

hearing in which much of the evidence was evidence that the trial court had

already heard during the original trial. N.T., 5/9/12, at 12-36. The purpose

of the evidentiary hearing was for the trial court to determine the damages

th

Mr. Agostinelli had committed fraud.      See id. at 4.   The trial court heard

evidence from Dr. Edwards, who testified regarding the several categories of

loans he took out in both his

received the proceeds.    Id. at 10.    Dr. Edwards further testified that the



completed on Barnbridge.         Id. at 21.    The only new evidence that Dr.

Edwards introduced at this evidentiary hearing was that he had to take out

and pay interest on personal loans in order complete work on Barnbridge



against Barnbridge and used those funds for personal expenses. See id. at

34-37.   As a result, most of the new damages calculations that the trial



                                      - 15 -
J-A10011-14


court made on remand were the result of evidence that was already part of

the original record.

      Second, the record reflects that the trial court, on remand, resolved

factual disputes, including the new calculations of damages.        See Opinion

and Order, 2/7/13, at 6-7; Opinion and Order, 6/14/13, at 4-5; see also

Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229, 1240

(Pa. Super. 2012), appeal denied, 65 A.3d 414 (Pa. 2013) (stating that the

calculation of damages is a question of fact).      The trial court also made a

new conclusion of law. A dispute arose on remand regarding the time from

which the trial court should calculate the six percent simple interest awarded

by this Court.   Trial Court Opinion and Order, 2/7/13, at 3-4; see also

Agostinelli, 223 MDA 2011, at 17.          The Agostinellis argued that the trial

court should have calculated the interest from June 17, 2010, the date when

the trial court entered its original order awarding LETWO, Dr. Edwards, and

Jon damages. Opinion and Order, 2/7/13, at 3. The Edwardses contended

that the trial court should calculate the interest from the dates the

Agostinellis deprived LETWO, Dr. Edwards, and Jon of the converted funds.

Id. at 3-5. The trial court found that the Edwardses were entitled to interest

from the date the Agostinellis deprived them of the converted funds as a

matter of law. Id. (citing Spang & Co. v. USX Corp., 599 A.2d 978, 984

(Pa. Super. 1991)).    This determination required the trial court to make

factual findings and conclusions of law.



                                    - 16 -
J-A10011-14


        Third, the record reflects that the Edwardses intended for their

February 21, 2013 motion for reconsideration, filed after the February 7,

2013 opinion and order on remand, to be a motion for post-trial relief

pursuant to Pennsylvania Rule of Civil Procedure 227.1.        See



Reconsideration of the February 7, 2013 Order, 3/14/13, at ¶ 1.       In their

motion to strike, the Edwardses stated that they filed their February 21,

2013 motion for reconsideration pursuant to Rule 227.1. See id. However,

the Edwardses filed their motion on February 21, 2013, more than 10 days

after the filing of the February 7, 2013 order.    The Edwardses incorrectly

argued that their motion for reconsideration was a timely post-trial motion,

asserting that they did not receive notice of the February 7, 2013 order until

February 11, 2013.    See id.   However, Rule 227.1 requires parties to file

post-

                     See Pa.R.C.P. 227.1(c)(2). The date of filing is the date

                                         ket that notice of entry of the order



Edwardses attempted to argue that the trial court should have stricken the

                                                                     post-trial

motion. See

Record and Motion for Reconsideration of the February 7, 2013 Order,

3/14/13, at ¶¶ 2-3.     In contrast, at the March 25, 2013 hearing on the



                                    - 17 -
J-A10011-14




that the Newman Court held that post-trial motions are not required absent

                                                                      Newman

in its June 14, 2013 opinion and order, holding that

apply to evidentiary hearings, like the post-remand damages hearing in this



at 2.

        Therefore, in this case, we encounter a situation where the trial court

held an evidentiary hearing on remand and in which the trial court relied

heavily on the existing record to make new findings of fact and conclusions

of law. The Edwardses believed that Rule 227.1 required them to file post-

trial motions in order to preserve issues for appeal.     Conversely, both the

                                                     Newman forecloses the

requirement of post-trial motions on remand where the proceedings fall

short of a full trial.   The fact the trial court relied heavily on the existing

record in making new findings of fact and conclusions of law on remand, and

the inherent confusion resulting to all parties involved in this case in their

attempt to interpret the Newman decision, we cannot say that Rule 227.1

required the filing of post-trial motions in this case. While the trial court on

remand relied in part on an existing record but also heard testimony from a

witness who was cross-examined, we cannot say with any certainty that this

                                               Newman court.     Newman, 52



                                      - 18 -
J-A10011-14


A.3d at 1250-51. Thus, we conclude that where, as here, on remand, the

trial court relies on both the record existing prior to the appeal and new

evidence to reach a decision, post-trial motions are not required to preserve

issues for appeal.

      We now turn to the merits of the case before us.         Our standard of

review for non-jury proceedings is as follows:

            Our review in a non-jury case is limited to whether
            the findings of the trial court are supported by
            competent evidence and whether the trial court
            committed error in the application of law. We must

            and effect as the verdict of a jury and, accordingly,
            may disturb the non-
            findings are unsupported by competent evidence or
            the court committed legal error that affected the
            outcome of the trial. It is not the role of an appellate
            court to pass on the credibility of witnesses; hence
            we will not substitute our judgment for that of the
            fact[-]finder. Thus, the test we apply is not whether
            we would have reached the same result on the
            evidence     presented,     but   rather,    after  due
            consideration of the evidence which the trial court
            found credible, whether the trial court could have
            reasonably reached its conclusion.

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.

2012).

      In the first issue Mrs. Agostinelli raises on appeal, she claims that the

trial court erred by attributing to her the fraud committed by her husband.

                 Brief at 4. After reviewing the certified record, we conclude

that the trial court never attributed the fraud committed by Mr. Agostinelli to




                                     - 19 -
J-A10011-14




in this regard.

      In the original opinion and verdict entered on June 17, 2010, the trial

court determined that the Agostinellis had personally benefitted from their

conversion of LETWO funds. Trial Court Opinion and Verdict, 6/17/10, at 7,

11. Likewise, on remand, the trial court fou



Agostinelli defrauded [the Edwardses] and used funds from LETWO for the

benefit of he and [Mrs. Agostinelli]. Trial Court Opinion and Order, 2/7/13,

a

Agostinelli; it merely found, as it did in the June 17, 2010 opinion and

verdict, that she benefitted from converted funds.

      Moreover, the Agostinellis never challenged in their post-trial motions

the finding from the June 17, 2010 opinion and order that Mrs. Agostinelli

had personally benefitted from their conversion of LETWO funds.             Rule

227.1(b)(2) provides that a party waives those issues that they do raise in

post-trial motions.    Pa.R.C.P. 227.1(b)(2).       As a result, Mrs. Agostinelli




properly be raised at this juncture. See Pa.R.C.P. 227.1(b)(2). Therefore,

Mrs. Agostinelli is not entitled to relief on this issue.




                                       - 20 -
J-A10011-14


      In the second and third issues raised by Mrs. Agostinelli, she claims

that the trial court erred by divesting her of her 50 percent share in LETWO

                                Brief at 4.   Based upon our review of the

certified record, we conclude that the trial court erred by not crediting Mrs.

Agostinelli with her 50 percent share in LETWO on remand.

                                                                             t

appeal, the trial court found that LETWO had $480,693.48 in assets and that

Mrs. Agostinelli was entitled to 50 percent of those assets, or $240,346.74.

Trial Court Opinion and Verdict, 6/17/10, at 12. The trial court also found

that the Edwardses had a combined capital account of $283,239.89 and that

the Agostinellis had a negative capital account of $186,224.92, which

represented the amount of money they converted from LETWO.           Id.   The

                                                                       46.74)

towards evening out her capital account with the Edwardses and repaying

the money the Agostinellis had converted from LETWO. Id. In the October



interest in LETWO because it had already credited her with the value of that

interest. Trial Court Opinion and Order, 10/29/10, at 9-10, 12.



credit Mrs. Agostinelli with a 50 percent interest in LETWO in their Rule

1925(b) statement in their first appeal.       Rule of Appellate Procedure

1925(b)(4) provides that where a trial court orders a concise statement of



                                    - 21 -
J-A10011-14




and/or not raised in accordance with the provisions of this paragraph (b)(4)



the trial court ordered a 1925(b) statement from both the Edwardses and

the Agostinellis, and the Edwardses never raised the issue of t

decision to credit Mrs. Agostinelli with a 50 percent interest in LETWO.

        Moreover, on appeal, when the Agostinellis raised a challenge to the



not dissolved LETW

the company.       Agostinelli, 223 MDA 2011, at 24-26.           Because the

Edwardses never challenged the trial court crediting Mrs. Agostinelli with her

50 percent interest, our Court did not address the issue in the first appeal or




further proceedings consistent with this decision and for award of simple

inter                               Id.                    -settled that a trial

                                                                           Nigro

v. Remington Arms Co., Inc., 637 A.2d 983, 988 (Pa. Super. 1993),

abrogated on other grounds, Aldridge v. Edmunds, 750 A.2d 292 (Pa.

2000); see also Gocek v. Gocek, 612 A.2d 1004, 1009 n.7 (Pa. Super.




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J-A10011-14


Agostinelli of her 50 percent interest in LETWO on remand and it erred by

doing so.



order the trial court issued on remand, it determined that the Agostinellis

owed LETWO $278,237.15 in damages and that Mrs. Agostinelli was not

required to make a monetary capital contribution to LETWO in accordance



and Order, 6/14/13, at 4. Based on our determination that the trial court

erred by divesting Mrs. Agostinelli of her 50 percent interest in LETWO, or

$240,346.74, we now credit her with that interest.     After subtracting the

$240,346.74 from the $278,237.15 in damages that the Agostinellis owe

LETWO, we determine that the appropriate damage award to LETWO is

$37,890.41.

     Based on the foregoing we conclude that Rule 227.1 did not require

Mrs. Agostinelli to file post-trial motions in order to preserve issues for

review in this case.   We further conclude that the trial court erred by

divesting Mrs. Agostinelli of her 50 percent interest in LETWO on remand

since this was outside of the scope of the remand order.       Therefore, we

credit her with that interest, or $240,346.74.   After applying that amount

against the $278,237.15 damage award to LETWO, the appropriate damage

award owed to LETWO is $37,890.41.

     Order affirmed in part and vacated in part. Jurisdiction relinquished.



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J-A10011-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




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