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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

RICHARD VAUTAR, AS ATTORNEY-IN-  :            IN THE SUPERIOR COURT OF
FACT FOR BERTHA VAUTAR           :                  PENNSYLVANIA
                                 :
                v.               :
                                 :
FIRST NATIONAL BANK OF           :
PENNSYLVANIA                     :
                                 :
                v.               :
                                 :
THE ESTATE OF FRANCES SAKMAR,    :
AND MICHAEL SAKMAR AND EDWARD :
SAKMAR, CO-EXECUTORS OF THE      :
ESTATE OF FRANCES SAKMAR         :
                                 :
                v.               :
                                 :
MICHAEL SAKMAR, EDWARD SAKMAR, :
AND EILEEN ATWOOD, INDIVIDUALLY, :                 No. 161 WDA 2014
                                 :
                   Appellants    :


           Appeal from the Judgment Entered December 30, 2013
             in the Court of Common Pleas of Cambria County
                      Civil Division at No. 2009-01615


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND ALLEN, JJ.


DISSENTING MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED FEBRUARY 27, 2015

      The majority quashes the instant appeal due to the failure of the

appellants, the Sakmar heirs, to file post-trial motions. I do not believe that

post-trial motions were appropriate under the unique circumstances of this

case; therefore, I am compelled to respectfully dissent.
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      The trial court’s September 5, 2013 verdict found only the Estate

liable; it did not mention the Bank’s claim for unjust enrichment and creation

of a constructive trust against the Sakmar heirs. The trial court found only

that Frances Sakmar, decedent, had breached her contract of indemnity with

the Bank. The Bank filed post-trial motions, arguing that the Sakmar heirs

were unjustly enriched by their receipt of the Vautar certificate of deposit

proceeds, and demanding a constructive trust. Following oral argument and

consideration of the parties’ briefs, on December 16, 2013, the trial court

found in favor of the Bank on its unjust enrichment claim against the

Sakmar heirs.     The trial court determined that the Sakmar heirs were

unjustly enriched by their receipt of the total proceeds of the CDs when they

were only entitled to one-half of the proceeds. The trial court stated that it

would consider imposition of a constructive trust if it became necessary to

collect the verdict.

      Appellants filed a timely notice of appeal on January 15, 2014, without

filing post-trial motions following the trial court’s amended/supplemental

verdict.   I find the following cases, while not directly on point, to be

instructive.   In Lenhart v. Travelers Ins. Co., 596 A.2d 162 (Pa.Super.

1991), appeal denied, 607 A.2d 255 (Pa. 1992), Travelers filed an appeal

from an arbitration award, arguing that the injured plaintiff was not eligible

to recover because she was injured while an occupant of a vehicle owned by

a self-insured. The matter was submitted on briefs and the record from the



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arbitration proceedings.    Id. at 163.    The trial court determined that the

plaintiff was ineligible to recover from the Assigned Claims Plan, and the

plaintiff appealed. Id. On appeal, Travelers argued all issues were waived

for failure to file post-trial motions.   This court disagreed, finding that the

trial court’s decision, which did not consider any new evidence, was not a

“trial” within the meaning of Rule 227.1:

              As indicated above, the trial court’s decision was
              made by considering the record, consisting of the
              arbitration transcript and various exhibits, and briefs
              filed by the parties. No evidence or findings of fact
              were introduced or presented.           The note to
              Pa.R.C.P. 227.1(c) provides in pertinent part, “A
              motion for post-trial relief may not be filed to orders
              disposing of preliminary objections, motions for
              judgment on the pleadings or for summary
              judgment, motions relating to discovery or other
              proceedings which do not constitute a trial.”
              (Emphasis added). Since 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.       Consequently, post-trial
              motions      actually     were    prohibited     under
              Pa.R.C.P. 227.1.

Id. at 164.

      Subsequently, in Newman Development Group of Pottstown, LLC

v. Genuardi’s Family Markets, Inc., 52 A.3d 1233 (Pa. 2012), our

supreme court addressed the question of whether a party must file post-trial

motions where, on remand from this court, the trial court recalculated

damages without receiving any additional evidence from the parties.         The


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court in Newman determined that the remand proceedings in that case,

where the trial court merely reached a different damage calculation based on

facts and contract terms already in the record, was not a “trial” and

Rule 227.1 did not apply: “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 an appellate court’s

directive.” Id. at 1251.    See also Agostinelli v. Edwards, 98 A.3d 695

(Pa.Super. 2014) (post-trial motions were not required to preserve issues for

appeal where the trial court held an evidentiary hearing on remand and

relied heavily on an existing record to make new findings of fact and

conclusions of law).

      The Newman court was also concerned with the fairness of finding

waiver where the rule is unclear.

            Obviously, if an appellate court remands for a new
            trial, the civil trial rules apply again, and in full force.
            But, the circumstance here -- not an uncommon
            scenario -- involves a gray area, where there are to
            be further proceedings below, but the proceedings
            do not amount to a new trial.

Newman, 52 A.3d at 1246-1247.

            A party or attorney reading Lenhart and [Cerniga
            v. Mon Valley Speed Boat Club, 862 A.2d 1272
            (Pa.Super. 2004),] 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
            the Official Note’s advice that post-trial motions are


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            not required in response to “other proceedings which
            do not constitute a trial.”

Id. at 1250-1251.

      The Newman court was clearly swayed by the argument of amicus

curiae that waiver should not be found mechanically and arbitrarily where

counsel was not put on unambiguous notice that post-trial motions were

required:

            When a court finds waiver in a novel situation in
            which reasonable counsel would not have known of
            the requirement that gave rise to the waiver, the
            salutary purposes of waiver are not served at all. In
            such a circumstance, there is no benefit to the
            judicial process, only a trap that denies merits
            review to those who, despite diligence, make a
            choice an appellate court later decides was wrong.

Id. at 1244, quoting Amicus Brief of Jurists and Litigators at 6.

      Here, while the trial court heard oral argument on the Bank’s post-trial

motions and the parties filed briefs, the trial court’s amended/supplemental

verdict was decided on the existing record. The trial court did not take new

evidence    or   make     new    factual   findings.      The    trial   court’s

amended/supplemental verdict was not the result of a “new trial.”           The

language of Rule 227.1 is clear that it only applies to trials, not to other

proceedings. The Bank has not cited any authority for the proposition that

an order disposing of post-trial motions requires further post-trial motions in

order to preserve the same issues for appeal.




                                     -5-
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      In the case sub judice, the issues raised by appellants on appeal are

the same ones argued by the parties on post-trial motions; i.e., whether the

Sakmar heirs can be found liable on a theory of unjust enrichment.      The

underlying purpose of the rule, to allow the trial court an opportunity to

correct errors, has been satisfied. There would be no reason for the Sakmar

heirs to file further post-trial motions where the issues have already been

thoroughly addressed and are ripe for appeal. At a minimum, this involves a

“gray area,” where the harsh sanction of waiver should not apply.

      Therefore, I believe the Bank’s motion to quash should be denied and

the case decided on its merits.




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