J-A17040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEO J. DOLAN, JR. AND CHERIE M.    :          IN THE SUPERIOR COURT OF
DOLAN, H/W                         :               PENNSYLVANIA
                                   :
                Appellees          :
                                   :
                v.                 :
                                   :
HURD MILLWORK COMPANY, INC.,       :
BENTLEY HOMES, LTD., GARVIN        :
MITCHELL CORPORATION, CHADWELL     :
ASSOCIATES, L.P., CHADWELL REALTY, :
INC., HARRISON COMMUNITY           :
ASSOCIATION                        :
                                   :
                Appellants         :              No. 2951 EDA 2015

            Appeal from the Judgment Entered August 26, 2015
             In the Court of Common Pleas of Delaware County
                    Civil Division at No(s): 2005-005801

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                  FILED FEBRUARY 17, 2017

      Appellants, Bentley Homes, Ltd., Garvin Mitchell Corporation, Chadwell

Associates, L.P., Chadwell Realty, Inc., and Harrison Community Association,

appeal from the judgment entered in the Delaware County Court of Common

Pleas, in favor of Appellee, Leo J. Dolan, Jr. 1 We vacate and remand for a

new trial on liability and damages.

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

In July 1999, Appellee and Cherie M. Dolan entered into an agreement of

1
  Appellee and Cherie M. Dolan divorced while the case was pending in the
trial court. As a result, Cherie M. Dolan is not a party to this appeal.
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A17040-16


sale with Appellants for a new custom home for the purchase price of

$1,941,669.00.    Settlement took place on November 10, 2000.           Hurd

Millwork Company, Inc. provided many of the windows used in the

construction of Appellee’s home.     Within a year, the home developed

substantial defects including air and water leaks around the windows.

     On April 5, 2001, Hurd Millwork sued Appellants for unpaid invoices

related to the construction of Appellee’s home and other homes in the same

community.    Appellants filed an answer and new matter counterclaim

against Hurd Millwork, which claimed Hurd Millwork provided defective

windows.   Appellants further claimed the defective windows provided by

Hurd Millwork caused air and water leaks in numerous homes in the

community.    In October 2002, Appellants and Hurd Millwork entered a

settlement agreement, which contained specific admissions that numerous

homes in the development, including Appellee’s home, suffered from

extensive defects and leaks.

     During the pendency of the litigation between Hurd Millwork and

Appellants, Appellee experienced numerous additional problems with the

home including, but not limited to, severe air and water leaks, rotted wood,

and issues with the stucco wall. Appellants made some repairs to the home;

however, the leaks and damage continued to worsen. Ultimately, Appellee

hired a civil engineer to assess the home and determine what repairs were

necessary to fix the problems with the home.     The repairs and associated


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costs necessary to fix Appellee’s home totaled $826,695.99.

      On May 24, 2005, Appellee filed a writ of summons against Appellants

and Hurd Millwork.       Appellee subsequently filed a complaint against

Appellants and Hurd Millwork on September 6, 2005. The complaint raised

the following claims against Appellants: (1) negligence; (2) breach of

express and implied warranty; (3) negligent misrepresentation; (4) fraud

and/or intentional misrepresentation; and (5) violations of the Unfair Trade

Practice and Consumer Protection Law (“UTPCPL”).        Appellee’s complaint

sought punitive damages against Appellants.        The September 6, 2005

complaint also raised the following claims against Hurd Millwork: (1) breach

of express and implied warranty; (2) negligence; and (3) products liability.

On November 4, 2005, Appellants filed preliminary objections, which the

court overruled on February 2, 2006. Appellants then filed an answer, new

matter and cross-claim against Hurd Millwork on March 1, 2006. Appellants’

cross-claim alleged Hurd Millwork was solely or jointly liable for Appellee’s

injuries.

      On March 2, 2006, Hurd Millwork filed an answer to Appellants’ cross-

claim.      Hurd Millwork then filed a separate answer and new matter to

Appellee’s complaint on March 13, 2006, as well as a cross-claim against

Appellants, which alleged Appellants were solely or jointly liable for

Appellee’s injuries. Appellants filed an answer to Hurd Millwork’s cross-claim

on March 14, 2006. Appellants subsequently filed joinder complaints against


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numerous other parties involved in the construction of Appellee’s home. All

parties then underwent settlement discussions, which resulted in the

dismissal of the joined defendants from the case and a settlement

agreement between Appellee and Hurd Millwork.

      The case eventually proceeded to a bench trial on January 26, 2015.

The only claims remaining for the court to address were Appellee’s claims

against Appellants and Appellants’ cross-claim against Hurd Millwork.

Despite the pending cross-claim, Hurd Millwork did not appear at trial. Prior

to the presentation of testimony, the parties stipulated to the defective

nature of the Hurd Millwork windows used in the construction of Appellee’s

home. Appellee then presented the only evidence at trial, which supported

his claims against Appellants.       Appellants did not present any evidence to

rebut Appellee’s claims or to prove its cross-claim against Hurd Millwork. At

the conclusion of trial, the court took the matter under advisement pending

the preparation of proposed findings of fact/conclusions of law by both

parties.    Both   parties   filed    their   respective   proposed   findings   of

fact/conclusions of law on May 20, 2015.          On June 18, 2015, the court

entered a general verdict in favor of Appellee and awarded Appellee

$500,000.00 in damages.       The court’s ruling did not specifically address

Appellants’ pending cross-claim.

      On June 26, 2015, Appellants timely filed a motion for post-trial relief,

and Appellee filed a motion for delay damages on June 30, 2015. On August


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19, 2015, the court denied Appellants’ motion for post-trial relief. The court

then granted Appellee’s motion for delay damages and molded the verdict to

$748,287.67 on August 21, 2015.        Appellee filed a praecipe for entry of

judgment on August 26, 2015. On September 16, 2015, Appellants timely

filed a notice of appeal. The court did not order Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and Appellants did not file one. The trial court issued a conclusory three-

page opinion pursuant to Pa.R.A.P. 1925(a).       We remanded the case on

January 13, 2017, and directed the trial court to prepare a supplemental

opinion addressing all of Appellants’ issues.    Upon remand, the President

Judge of the county court filed a “Response to Remand,” which informed us

that the trial judge had retired; and no one currently on the bench could

prepare the supplemental opinion as ordered.

      Appellants raise the following issues for our review:

         WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
         FROM OBTAINING DAMAGES FOR NEGLIGENCE WHERE
         THAT CLAIM IS BARRED BY THE GIST OF THE ACTION
         DOCTRINE, THE ECONOMIC LOSS DOCTRINE, AND THE
         STATUTE OF LIMITATIONS[?]

         WHETHER [APPELLEE] IS PRECLUDED AS A MATTER OF
         LAW FROM OBTAINING DAMAGES FOR BREACH OF
         EXPRESS AND IMPLIED WARRANTIES WHERE THOSE
         CLAIMS    CANNOT      BE     MAINTAINED    AGAINST
         [APPELLANTS], ARE BARRED BY THE STATUTE OF
         LIMITATIONS, [APPELLEE] FAILED TO PRESENT EVIDENCE
         OF THE TERMS OF THE EXPRESS WARRANTIES AT TRIAL,
         AND [APPELLEE] FAILED TO GIVE THE OPPORTUNITY TO
         REPAIR OR NOTICE OF THE DEFECTS FOR WHICH THE
         PARTY NOW SEEKS THE AWARD OF DAMAGES[?]

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J-A17040-16



       WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
       FROM    OBTAINING    DAMAGES   FOR    NEGLIGENT
       MISREPRESENTATION      AND    FRAUD/INTENTIONAL
       MISREPRESENTATION WHERE THOSE CLAIMS ARE
       BARRED BY THE GIST OF THE ACTION DOCTRINE, THE
       ECONOMIC LOSS DOCTRINE, AND THE STATUTE OF
       LIMITATIONS[?]

       WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
       FROM OBTAINING AN AWARD OF PUNITIVE DAMAGES
       WHERE PENNSYLVANIA LAW DOES NOT RECOGNIZE AN
       INDEPENDENT CAUSE OF ACTION FOR PUNITIVE
       DAMAGES AND NONE OF THE CLAIMS CAN SUPPORT A
       CLAIM FOR PUNITIVE DAMAGES[?]

       WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
       FROM OBTAINING DAMAGES UNDER THE [UTPCPL] WHERE
       THAT CLAIM CAN BE MAINTAINED, IF AT ALL, ONLY
       AGAINST THE SELLER AND THE FRAUDULENT OR
       DECEPTIVE CONDUCT UPON WHICH THE CLAIM IS BASED
       OCCURRED, IF AT ALL, AFTER THE PURCHASE OF THE
       REAL PROPERTY AT ISSUE[?]

       WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
       FROM OBTAINING AN AWARD OF DAMAGES WHERE BY
       THE PARTY’S OWN ADMISSION, THE PARTY FAILED TO
       MITIGATE ITS DAMAGES AND RENDERED IT IMPOSSIBLE
       FOR THE COURT TO DETERMINE THE PROPER AMOUNT OF
       DAMAGES TO AWARD TO THE PARTY[?]

       WHETHER THE PARTY IS PRECLUDED AS A MATTER OF
       LAW FROM OBTAINING AN AWARD OF DAMAGES FOR
       BREACH OF CONTRACT WHERE THE PARTY NEVER [PLED]
       SUCH A CLAIM, DID NOT SEEK LEAVE AT TRIAL TO AMEND
       TO INCLUDE SUCH A CLAIM, AND ANY SUCH CLAIM IS
       BARRED BY THE STATUTE OF LIMITATIONS[?]

       WHETHER A DEFENDANT IS ENTITLED TO AN AWARD OF
       INDEMNIFICATION AND/OR CONTRIBUTION AGAINST A
       CO-DEFENDANT WHERE THE EVIDENCE IS CLEAR THAT
       THE CO-DEFENDANT’S CONDUCT CAUSED INJURY TO THE
       PLAINTIFF AND THE BASIS OF THE DEFENDANT’S
       LIABILITY TO THE PLAINTIFF IS DUE TO THE CO-

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         DEFENDANT’S CONDUCT[?]

         WHETHER A PARTY IS PRECLUDED AS A MATTER OF LAW
         FROM OBTAINING DELAY DAMAGES WHERE THE
         UNDERLYING ACTION IS BASED UPON THE CONTRACTUAL
         RELATIONSHIP OF THE PARTIES TO THE LITIGATION AND
         DELAY DAMAGES ARE NOT AVAILABLE IN CONTRACT
         ACTIONS[?]

(Appellants’ Brief at 6-7).

      Preliminarily, we observe that upon receipt of a notice of appeal, the

trial court shall file an opinion that explains the court’s reasons for its

decision if the reasons do not already appear of record. Pa.R.A.P. 1925(a).

“The purpose of Rule 1925(a) is to give the appellate court a reasoned basis

for the trial court’s decision and to require a trial [court] to consider

thoroughly decisions regarding post-trial motions.” Gibbs v. Herman, 714

A.2d 432, 435 (Pa.Super. 1998).         “Ordinarily, the remedy for non-

compliance with [Rule] 1925(a) is a remand to the trial court with directions

that an opinion be prepared and returned to the appellate court.” Cooke v.

Equitable Life Assurance Society of the United States, 723 A.2d 723,

727 (Pa.Super. 1999). The absence of an adequate trial court opinion poses

a substantial impediment to meaningful and effective appellate review.

Jones v. Jones, 878 A.2d 86, 90 (Pa.Super. 2005).

      Instantly, the parties proceeded to a bench trial on January 26, 2015.

At the conclusion of trial, the court took the matter under advisement

pending the preparation of proposed findings of facts/conclusions of law by

both parties. The court subsequently entered a general verdict in favor of

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Appellee and awarded Appellee $500,000.00 on June 18, 2015. The court’s

decision did not explain: (1) which of Appellee’s claims warranted relief; (2)

whether the damages award included a punitive damages component; or (3)

whether the court ruled in favor or against Appellants on their cross-claim

against Hurd Millwork. On June 26, 2015, Appellants filed a motion for post-

trial relief, which raised numerous, complex issues concerning all of

Appellee’s claims and the award of damages.       The court, however, denied

relief on August 19, 2015, without any explanation.           After Appellants

appealed, the court again failed to provide adequate explanations for its

decisions in the case when it issued a three-page Rule 1925(a) opinion.

Instead of clarifying its general verdict, award of damages, or denial of

Appellants’ post-trial motion, the trial court opinion cursorily states: (1) the

evidence presented at trial was overwhelmingly in favor of Appellee; (2) the

general verdict disposed of all claims; (3) the gist of the action doctrine did

not bar Appellee’s negligence claim; and (4) the award of delay damages

was appropriate under the circumstance of the case. On January 13, 2017,

we remanded the case to the trial court to prepare a supplemental opinion.

Our remand order included a list of specific items the court was to address in

the supplemental opinion.

      Upon remand, the President Judge of the county court filed a

“Response to Remand,” which informed us that the trial judge had retired;

and no one currently on the bench could prepare the supplemental opinion


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as ordered. Because the trial judge failed to explain his decision throughout

this case and is no longer on the bench to give us the information necessary

for our review, the record remains insufficient for us to address Appellants’

claims.    Specifically, we cannot determine (1) which of Appellee’s claims

warranted relief; (2) what type of damages the court awarded Appellee; (3)

the amount of each type of damages awarded Appellee; (4) whether the

court ruled in favor or against Appellants on their cross-claim against Hurd

Millwork; and (5) the reasons for the court’s general denial of Appellants’

motion for post-trial relief. Therefore, the best resolution of this appeal is to

vacate the judgment and remand for a new trial on liability and damages.

Accordingly, we vacate and remand for further proceedings.2

       Judgment vacated; case remanded with instructions.         Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2017




2
 The unforeseen circumstances surrounding resolution of this appeal put the
parties in a unique position that could inspire and motivate a settlement.
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