J. S23032/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

HARRY SCHLACHTERMAN AND                  :     IN THE SUPERIOR COURT OF
KIMBERLY CALLAHAN,                       :           PENNSYLVANIA
                                         :
                         Appellants      :
                                         :
                    v.                   :
                                         :
CHARLES B. CALKINS ESQ.,                 :
INDIVIDUALLY AND IN HIS                  :
CAPACITY AS GUARDIAN OF                  :
FRANK MARTZ HENRY AND                    :
ROBERT D. O’BRIEN, ESQ., AND             :
GRIFFITH, STICKLER, LERMAN,              :          No. 2683 EDA 2019
SOLYMOS & CALKINS AND                    :
FRANK MARTZ HENRY                        :


                Appeal from the Judgment Entered July 31, 2019,
              in the Court of Common Pleas of Philadelphia County
                         Civil Division at No. 170900799


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        Filed: June 25, 2020

      Harry    Schlachterman    (“Schlachterman”)    and    Kimberly   Callahan

(collectively, “appellants”) appeal from the July 31, 2019 judgment entered in

the Court of Common Pleas of Philadelphia County in favor of Charles B.

Calkins, Esq., individually and in his capacity as guardian of Frank Martz Henry

(“Attorney Calkins”); Robert D. O’Brien, Esq. (“Attorney O’Brien”); Griffith,
J. S23032/20

Stickler, Lerman, Solymos & Calkins (“law firm”); and Frank Martz Henry

(“Henry”) (collectively, “appellees”).1 We affirm.

      The trial court set forth the following:

            [Schlachterman and Henry] were partners in a
            business. [Schlachterman and Henry] entered into a
            lease   with   Axelrod-Giannascoli    Realty   Group
            (“Axelrod Realty”).      The    lease   referred   to
            [Schlachterman and Henry] as “Lessee.” The lease
            also contained a provision allowing Axelrod Realty to
            confess judgment against Lessee if Lessee breached
            the lease. On November 17, 2009, Axelrod Realty
            confessed judgment against [Schlachterman and
            Henry] in the amount of $231,255.00.

            Following the Confession of Judgment, [Henry]
            through his attorneys, [Attorney Calkins] and
            [Attorney O’Brien] of [the law firm], litigated his own
            interests by filing the following motions:           an
            Emergency Motion to Strike the Judgment on
            December 1, 2011; a Motion to Open and/or Strike
            the Confessed Judgment and an Emergency Motion to
            Stay the Proceedings on December 5, 2011; a second
            Motion to Open and/or Strike the Confessed Judgment
            on January 31, 2012; and a Motion to Postpone the
            Sherriff’s Sale on January 31, 2012.

            [] Henry also agreed to purchase the confessed
            judgment from Axelrod Realty, in exchange for a
            payment of $262,512.96. Accordingly, on February 8,
            2012, Alexrod Realty filed an “Order to Satisfy
            Judgment Against [] Henry Only,” which stated: “To
            the Prothonotary: Kindly mark the money judgment
            in   favor  of   [Axelrod   Realty]   and   against
            [Schlachterman and Henry] in the above matter
            SATISFIED as to [] Henry only, upon payment of your
            costs.” [] Henry and Axelrod Realty executed a
            written agreement, under which Axelrod Realty


1 We have revised the caption to reflect that the appeal is properly taken from
the judgment entered on the verdict on July 31, 2019.


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           purported to assign the $231,255.00 confessed
           judgment against [Schlachterman] to [Henry].

           Thereafter, [Attorney] Calkins in his capacity as
           counsel for [] Henry, testified that he sought to collect
           half of the confessed judgment from [] Schlachterman
           by initiating litigation. In response, [] Schlachterman
           attempted to have the confessed judgment marked
           satisfied, claiming that [] Henry had already paid
           Axelrod Realty in full for the judgment.

           Initially, the original Trial Court[2] upheld [] Henry’s
           collection efforts. On April 7, 2014, the original Trial
           Court denied [] Schlachterman’s Petition [to] Strike
           the Confessed Judgment. On April 17, 2014 the
           original Trial Court denied [] Schlachterman’s Motion
           for Reconsideration of his Petition to Strike the
           Confessed Judgment. On February 20, 2015, the
           original Trial Court denied [] Schlachterman’s Motion
           to Mark the Confessed Judgment as Satisfied.
           Eventually, however, [] Schlachterman filed a Motion
           for Reconsideration to Mark the Judgment as
           Satisfied, which the original Trial Court granted on
           March 11, 2015.          [] Henry filed a Notice of
           Appeal.[Footnote 6]

                 [Footnote 6] [] Henry passed away in
                 October 2015, while the case was on
                 appeal.




2 Judge Nina Wright Padilla served as the trial court in the action that
Axelrod-Realty Group initiated against Schlachterman and Henry seeking to
eject them from the leased premises based on the confession of judgment. In
the underlying action to this appeal, Judge Lori A. Dumas served as the trial
court. In her Rule 1925(a) opinion, Judge Dumas refers to Judge Padilla as
“the original trial court.”


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            On January 21, 2016, the Superior Court issued an
            Opinion[3] deeming the purported assignment, to
            transfer the $231,255.00 confessed judgment from
            Axelrod Realty to [] Henry, invalid for lack of
            consideration.      The Superior Court affirmed the
            original Trial Court’s Order, marking as satisfied the
            judgment against [Schlachterman and Henry].
            [Attorney] Calkins testified [at the trial in the action
            giving rise to this appeal] that after the Superior Court
            decision, he took no further action to collect a portion
            of the judgment from Schlachterman on behalf of his
            client, [] Henry.

            ....

            [Appellants] commenced this action by Writ of
            Summons on September 6, 2017. [Appellants] filed a
            Second Amended Complaint on August 27, 2018,
            which asserted the following counts against
            [appellees]:    Wrongful Use of Civil Proceedings,
            42 Pa.C.S.A. § 8351 (Count I), Abuse of Civil
            Proceedings (Count II), Wrongful Use of Civil
            Proceedings, 42 Pa.C.S.A. § 8351 (Count III),
            Malicious Use of Civil Proceedings (Count IV), Fraud
            (Count V), Intrusion into Seclusion (Count VI),
            Intentional   Infliction    of   Emotional     Distress
            (Count V[II]), and Loss of Consortium (V[III][)]. A
            bench trial was held on July 11, 2019 and July 12,
            2019, after which th[e trial c]ourt entered a verdict in
            favor of [appellees] on all counts.




3 Axelrod-Giannascoli Realty Grp. v. Schlacterman, 136 A.3d 1035
(Pa.Super. 2016) (unpublished memorandum) (holding that law does not
support Henry’s characterization of his payment to Axelrod-Realty as
consideration for assignment of judgment, and trial court did not err in
marking judgment satisfied as to Schlachterman and Henry).

We note inconsistencies in the spelling of “Schachterman” in the previous
appeal at table citation 136 A.3d 1035.            There, the caption reads
“S-c-h-l-a-c-t-e-r-m-a-n,” which is reflected on the notice of appeal, but other
filings in the appellate docket in that appeal spell the name
“S-c-h-l-a-c-h-t-e-r-m-a-n.”


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            On July 22, 2019, [appellants] filed a Motion for
            Reconsideration, to which [appellees] filed a Response
            in Opposition on July 24, 2019. After considering the
            evidence and legal arguments presented, th[e trial
            c]ourt denied [appellants’] Motion on July 26, 2019.
            On August 12, 2019, [appellants] filed a Notice of
            Appeal. On September 26, 2019, th[e trial c]ourt filed
            an Order pursuant to Pa.R.A.P. 1925(b), instructing
            [appellants] to file a Concise Statement of Errors
            Complained of on Appeal. On October 16, 2019,
            [appellants complied].      On October 28, 2019,
            [appellants] filed an Amended Statement of Errors.

Trial court opinion, 11/21/19 at 2-5 (citations to the record and the Superior

Court memorandum, record citations, and footnotes 2, 3, 4 omitted; some

brackets in original).

      On November 1, 2019, this court entered an order directing appellants

to show cause as to why their appeal should not be dismissed for filing a

motion for reconsideration, as opposed to the requisite post-trial motion

pursuant to Pa.R.A.P. 227.1, within ten days.    Appellants timely complied.

After reviewing appellants’ motion for reconsideration and their response to

rule to show cause, we conclude that the motion for reconsideration was the

functional equivalent of a post-trial motion.   See Gemini Equip. Co. v.

Pennsy Supply, Inc., 595 A.2d 1211, 1214 (Pa.Super. 1991) (declining to




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construe rules of civil procedure so narrowly so as to permit minor procedural

error to effect litigant’s substantive rights).4 This appeal is ripe for our review.

      Appellants raise the following issues for our review:

            1.     Whether the [t]rial [c]ourt erred and/or abused
                   its discretion in finding in favor of [a]ppellees
                   and against [a]ppellants in their claim under
                   42 Pa.C.S.A. §8351 et seq[.], where the
                   evidence and record clearly establish[] that
                   [a]ppellees procured, initiated, and continued
                   civil proceedings against [a]ppellants in a
                   grossly negligent manner and without probable
                   cause, and for purposes other than securing an
                   adjudication against them, and whhere [sic] the
                   underlying proceedings terminated in favor of
                   [a]ppellants[?]

            2.     Whether the [t]rial [c]ourt erred and/or abused
                   its discretion in determining [a]ppellees were
                   conducting lawful discovery and therefore were
                   justified in their purpose and not liable to
                   [a]ppellants under 42 Pa.C.S.A. §8351
                   et seq[.], where [a]ppellees had no legally
                   cognizable claim to enforce, and even if they
                   had, their methods were improper and illegal
                   and sought to contravene clearly defined legal
                   procedures[?]

Appellants’ brief at 3.

      It is well settled that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). We

further note that “[t]o maximize our efficiency and to maintain and enhance


4 We recognize that an appeal does not lie from the denial of a motion for
reconsideration and that the filing of a motion for reconsideration does not
extend the time to file an appeal. In this case, however, all actions were taken
within 30 days of the verdict and the appeal was filed within 30 days of the
entry of judgment.


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the quality of our dispute resolution process, strict compliance with the

procedures designed for issue preservation is essential.”          Dollar Bank v.

Swartz, 657 A.2d 1242, 1245 (Pa. 1995).

             Post-trial motions serve an important function in the
             adjudicatory process because they provide the trial
             court with an opportunity to correct errors in its ruling
             and avert the need for appellate review. In 1984, this
             court adopted Rules 227.1 through 227.4 to establish
             uniform procedures for post-trial relief in actions at
             law and equity, and actions tried with or without a
             jury. Rule 227.1 addresses waiver at the trial court
             level, as a matter of the trial court’s post-trial power.
             Rule 227.1(b) establishes that issues not preserved
             . . . in post-trial motions . . . are waived. As this Court
             ruled in Lane Enterprises, Inc. v. L.B. Foster Co.,
             [] 551 Pa. 306, 710 A.2d 54), Rule 227.1 “requires
             parties to file post-trial motions in order to preserve
             issues for appeal,” and “[i]f an issue has not been
             raised in a post-trial motion, it is waived for appeal
             purposes.”

Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 155

A.3d 39, 44 (Pa. 2017) (some citations and quotation marks omitted).

      Here, in their motion for reconsideration, appellants complained that the

non-jury trial was not in compliance with Pa.R.Civ.P. 1038(a), which requires

the trial court to conduct a non-jury trial “as nearly as may be as a trial by

jury” and which affords the parties “like rights and privileges” as those

afforded in a jury trial. (Appellants’ motion for reconsideration, 7/22/19 at

1-2, ¶ 1.)   Appellants then claimed that the trial court erred in permitting

appellees’ witnesses to testify beyond the scope of appellants’ direct

examination and in limiting appellants’ direct examination; in “not specifically



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spell[ing] out” the extent to which the record in the action styled Axelrod-

Giannascoli Realty Grp., supra, was inadmissible; and in not permitting

appellants to fully develop evidence to support their claims. (Id. at 2, ¶¶ 3,

5.5)

       In their Rule 1925(b) statement and their amendment thereto,

appellants challenged the weight and sufficiency of the evidence. Indeed, in

their brief to this court, appellants raise weight and sufficiency challenges.

Appellants, however, did not raise weight and sufficiency challenges in their

motion for reconsideration.      Therefore, appellants waive their issues on

appeal.     See Pa.R.A.P. 302(a);       see also Bd. of Supervisors of

Williston Twp., 155 A.3d at 44.

       Judgment affirmed.



       Nichols, J. joins this Memorandum.

       McCaffery, J. concurs in the result.




5 Appellants’ motion for reconsideration of assignment of error at paragraph 4
reads, “Contrary to the assertions of [appellees], the question of equity to
Henry is not the matter before th[e trial c]ourt. It is purely the actions of
[appellees] in seeking to enforce a satisfied judgment that are being tried. No
actions are attributed to Henry, who for much of the action was adjudged an
[i]ncapacitated [p]erson. No service was attempted on Henry, or his estate.”
(Appellants’ motion for reconsideration, 7/22/19 at 2, ¶ 4.)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/25/20




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