J-A21013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FAN XIAN,                                        IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

OI YEE HUNG AND CHING K. WONG,

                            Appellants               No. 2510 EDA 2015


             Appeal from the Judgment Entered October 26, 2015
             In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): December Term 2013, No. 2207


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 17, 2016

       Appellants, Oi Yee Hung and Ching K. Wong, appeal from the

judgment entered on October 26, 2015,1 after the trial court’s denial of

Appellants’ motion for post-trial relief, in which they requested that the court


____________________________________________


1
  Appellants purport to appeal from the July 10, 2015 order denying their
post-trial motion. However, “[a]n appeal from the denial of post-trial
motions is interlocutory and not a final appealable order.” Sagamore
Estates Property Owners Ass’n v. Sklar, 81 A.3d 981, 983 n.3 (Pa.
Super. 2013) (citation omitted). “An appeal to this Court can only lie from
judgments entered subsequent to the trial court’s disposition of post-verdict
motions….” Vance v. 46 and 2, Inc., 920 A.2d 202, 205 n.2 (Pa. Super.
2007) (citation omitted). Accordingly, we directed Appellants, by per curiam
order dated October 15, 2015, to praecipe the trial court prothonotary to
enter judgment, and to file with the prothonotary of the Superior Court
within ten days a certified copy of the trial court docket reflecting the entry
of the judgment. The record reflects that Appellants have timely complied,
and judgment was entered on October 26, 2015.
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vacate its findings in favor of Appellee, Fan Xian. After careful review, we

affirm.


      The   relevant   facts   and   procedural   history   of   this   case   were

summarized by the trial court in the following portion of its Pa.R.A.P.

1925(a) opinion:

             On December 17, 2013, [Appellee] commenced the instant
      action against [Appellants] by writ of summons. On January 21,
      2014, [Appellee] filed his complaint against [Appellants]
      asserting counts for breach of contract; fraud; conversion;
      interference with a contractual relationship; and unjust
      enrichment.     Therein, [Appellee] averred that on or about
      December 10, 2012, he and [Appellants] “entered into a
      commercial lease/purchase agreement in reference to the real
      property known as 1701-1717 North 2nd Street, Philadelphia, PA
      19122 (the “Lease Purchase Agreement”).” “Under Paragraph
      36 of the Lease Purchase Agreement,” [Appellee] asserted he
      “was granted an option to purchase the property and
      [Appellants] agreed to automatically accept his request to
      purchase the property pursuant to the terms stipulated under
      Paragraph 36 of the Lease Purchase Agreement.”

            In terms of exercising the option, [Appellee] asserted he
      exercised the option on or about August 6, 2013, which was
      acknowledged and accepted by [Appellants’] counsel on August
      27, 2013, but thereafter [Appellants] failed to cooperate in good
      faith to consummate the transaction.          Rather, [Appellee]
      asserted on January 13, 2014, [Appellants] “wrongfully
      terminated the Lease Purchase Agreement by asserting that
      [Appellee] had not paid rent in December and January when in
      fact [Appellee] did pay the rent in December and the January
      rent was not yet due….”

                                          …

             [Appellee] attached a copy of the lease agreement to [his]
      complaint. The lease, dated December 12, 2012, provided that
      one year after the commencement of the lease, monthly
      installments of rent were due “on the fifteenth (15th) day of each
      month.”     The lease also provided at Paragraph 36, titled


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      “OPTION TO PURCHASE,” that [Appellee]: “shall have a first
      right option to purchase the property from [Appellants] during
      this lease. [Appellants] shall automatically accept the requested
      option to agree to the sale pursuant to the terms below and shall
      not have any basis for refusing the request from [Appellee].

            On December 10, 2014, [Appellants] filed an answer to the
      complaint along with new matter and counterclaim. The first
      page of this filing contained a notice to defend rather than a
      notice to plead.

                                       …

            [Appellee] did not file a reply to [Appellants’] new matter
      and counterclaim, and on June 10[,] 2015, the case proceeded
      to [a] bench trial before this court. At the trial, but prior to
      testimony being presented, [Appellants] raised for the first time
      the issue of [Appellee’s] failing to file a reply to [their] new
      matter and counterclaim, and suggested all of the allegations
      therein should be deemed admitted. The trial proceeded and
      [Appellants] … again raised the issue in closings. At that time,
      defense counsel argued [Appellants] were not seeking a default
      judgment, but that every allegation in the new matter and
      counterclaim be deemed admitted. [Appellants] argued based
      on those admissions a judgment in their favor for possession of
      the property, for termination of the lease, and for rent and legal
      fees, and [that] a judgment in their favor for all of [Appellee’s]
      claims should be entered.

             Following the conclusion of the trial, this court issued
      findings of fact and conclusions of law from the bench, which
      were filed of record with the prothonotary on June 11, 2015.
      This court found the testimony of the attorney who represented
      [Appellee] in exercising the option very credible. This court
      found that the lease was unambiguous, and the option was
      clearly exercised, but [Appellants] failed to act in good faith to
      carry out that transaction. The court ordered [Appellants] [to]
      sell the property to [Appellee] for $800,000 per the terms of
      their agreement. The court also ordered [Appellee], who was
      still occupying the property, [to] pay [Appellants] rent of $500
      per month for April 2014 to the time of trial, at a total of $6,550.

Trial Court Opinion (TCO), 11/6/15, at 1-5 (citations to the record and some

internal brackets omitted).

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J-A21013-16



       On June 18, 2015, Appellants filed a timely motion for post-trial relief,

in which they requested that the trial court vacate its findings in favor of

Appellee.    Appellants further sought relief in their favor in the amount of

$6,500 for back rent, $12,500 in legal fees, and sought possession of the

subject real property. After hearing oral argument on the motion, the trial

court denied Appellants’ request for relief.

       On August 6, 2015, Appellants filed a notice of appeal, followed by a

timely,   court-ordered      Pa.R.A.P.    1925(b)   concise   statement   of   errors

complained of on appeal.2 Appellants now present the following two issues

for our review:

       1. Did the trial court incorrectly den[y] Appellants’ request that
          all of Appellants’ averments in the counterclaim and new
          matter be admitted as a result of Appellee’s failure to respond
          to the pleadings, irrespective of whether a notice to defend or
          notice to plead was attached to Appellants’ answer with
          counterclaim and new matter?

       2. Did the trial court incorrectly deny Appellants’ motion to
          dismiss Appellee’s complaint as a result of Appellee’s failure
          to respond to Appellee’s new matter and counterclaim, thus,
          allowing Appellee opportunities to defend against allegations
          of breach of a commercial lease agreement and possession of
          the real estate in question?

Appellants’ Brief at 6 (unnecessary capitalization omitted).




____________________________________________


2
   We recognize that Appellants set forth seven issues within their Rule
1925(b) statement; however, the trial court found that all of Appellants’
claims were waived except for the two issues raised herein. TCO at 9.



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J-A21013-16



       Initially, we are constrained to find that Appellants’ claims are waived

due to their failure to ensure that the transcript from the July 9, 2015

hearing on their post-trial motion for relief (hereinafter “July 9, 2015 hearing

transcript”) was included in the record.         “This Court cannot meaningfully

review claims raised on appeal unless we are provided with a full and

complete certified record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.

Super. 2006).3       Moreover, the law is unequivocal that it is Appellants’

responsibility to ensure that the certified record is complete in the sense that

it contains all of the necessary materials for this Court to perform its duty.

Id. Appellants have a duty under Pa.R.A.P. 1911, to order and pay for any

transcript necessary to permit the resolution of the issues raised on appeal.

Pa.R.A.P. 1911(a); see also Commonwealth v. Williams, 715 A.2d 1101,

1105 (Pa. Super. 1998) (stating “Rule 1911 requires appellants to order all

transcripts necessary for their appeals”).

       In the instant case, the certified record contains only the June 10,

2015 trial transcript.       However, the July 9, 2015 hearing transcript is

essential for our meaningful review of Appellants’ claims, as the crux of the

issues on appeal centers on Appellee’s failure to respond to the averments in

Appellants’ new matter and counterclaim and the consequences thereof.
____________________________________________


3
  “The certified record consists of the ‘original papers and exhibits filed in the
lower court, the transcript of proceedings, if any, and a certified copy of the
docket entries prepared by the clerk of the lower court.’” Preston, 904 A.2d
at 7.



                                           -5-
J-A21013-16



The trial court expressly ordered the parties to be prepared to address these

very issues at the July 9, 2015 argument on Appellants’ post-trial motion for

relief.     Hence, we are unable to adequately resolve this matter without

reviewing the transcript from that hearing.

          The issue of the missing transcript was raised at the oral argument

before this Court on August 9, 2016. It is Appellants’ burden to ensure that

the certified record is complete; however, since that time, it appears that

they have not made any effort to supplement the record.4       In the event that

the appellant fails to conform to the rules, “[i]t is not proper for … the

Superior Court to order transcripts nor is it the responsibility of the appellate

courts to obtain the necessary transcripts.”         Preston, 904 A.2d at 7

(internal citations omitted). Therefore, based on the omission of the July 9,

2015 transcript, we deem Appellants’ claims waived.

          Nevertheless, even if Appellants’ claims had not been waived, we

would conclude that the issues are meritless. As we have previously stated:

          Our standard of review in equity matters is limited to
          determining whether the trial court committed an error of law or
          an abuse of discretion. The scope of review of a final decree in
          equity is limited and will not be disturbed unless it is
          unsupported by the evidence or demonstrably capricious.
____________________________________________


4
  Pennsylvania Rule of Appellate Procedure 1931(d) directs the clerk of the
trial court to provide the appellant with a copy of the list of record
documents.     Pa.R.A.P. 1931(d).    If the appellant discovers that any
documents have been omitted from the certified record, Rule 1926 sets forth
the process to obtain a supplemental certified record to correct any
omissions. Pa.R.A.P. 1926(b)(2).



                                           -6-
J-A21013-16



Coldren v. Peterman, 763 A.2d 905, 907-908 (Pa. Super. 2000).

Moreover, we note that an appellate court is bound by the trial court’s

findings of fact in an appeal stemming from a non-jury trial, unless those

findings are not based on competent evidence. L.B. Foster Co. v. Charles

Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090, 1092 (Pa. Super.

2001).

       It is not the role of an appellate court to pass on the credibility
       of witnesses or to act as the trier of fact. In a non-jury trial, the
       factfinder is free to believe all, part, or none of the evidence, and
       the Superior Court will not disturb the trial court’s credibility
       determinations. Nonetheless, the trial court’s conclusions of law
       are not binding on an appellate court. This is so because it is
       the appellate court’s duty to determine whether the trial court
       correctly applied the law to the facts.

Id. at 1092-1093.

       Here, Appellants assert that Appellee’s failure to reply to their new

matter and counterclaim should be deemed as an admission of the

averments set forth therein, and consequently, that Appellee’s complaint

should have been dismissed.               Appellants’ Brief at 7-9.     In response to

Appellants’ motion for post-trial relief in which these same issues were

raised, Appellee justified his lack of a response by noting that Appellants

improperly     attached     a    notice    to   defend   to   their   new   matter   and

counterclaim, rather than a proper notice to plead.5 Appellee relied on this
____________________________________________


5
   In accordance with the Pennsylvania Rules of Civil Procedure, no
responsive pleading is required to be filed unless the preceding pleading
contains a notice to defend or a notice to plead in compliance with the forms
(Footnote Continued Next Page)


                                             -7-
J-A21013-16



error in denying that he was required to file a responsive pleading.

Appellee’s Reply to Appellants’ Motion for Post-Trial Relief at 1-2.

      We discern that the trial court adequately addressed and disposed of

Appellants’ claims in its July 9, 2015 order, where it stated:

      [E]ven in the presence “of the necessary notice to plead[,]” “the
      plaintiff need only reply to factual allegations in the counterclaim
      or new matter, and the plaintiff is under no obligation to respond
      to legal conclusions that may have been pled by the defendant,”
      and only properly pleaded facts in the new matter or
      counterclaim are to be deemed admitted where the plaintiff fails
      to reply to the defendant’s new matter or counterclaim. See 6
      Standard Pennsylvania Practice 2d § 30.12. Moreover, when a
      fact has been put at issue by the complaint and answer, there is
      no need to respond to it if it is also included in new matter or
      counterclaims. See Watson v. Green, 231 Pa. Super. 115, 118
                  [ ]
      (1974).      “ New matter and counterclaims properly contain
      averments of facts only if they are extrinsic to facts averred in
      the complaint.” Id. (emphasis added [by the trial court]).

Trial Court Order, 7/9/15, at 1. The court then went on to explain:

      Here, [Appellee] alleged in his complaint that:

                19. Under Paragraph 4 of the lease, [Appellee] is
                 obligated to pay monthly rent to [Appellants]
                 commencing December 15, 2013 in the amount of
                 $500.00 and the fifteenth day of each month
                 thereafter.

                20. [Appellee] tendered the first payment of rent to
                 [Appellees] in accordance with the Lease Purchase
                 Agreement.
                       _______________________
(Footnote Continued)

set forth under Rules 1018.1 and 1361, respectively. Pa.R.C.P. 1026(a).
Rule 1018.1 sets forth the proper form of a notice to defend, which requires
a response to a complaint. Pa.R.C.P. 1018.1. Rule 1361 provides the
proper form of a notice to plead, which requires a response to all other
pleadings subsequent to the complaint. Pa.R.C.P. 1361.



                                            -8-
J-A21013-16


              21. On January 13, 2014, [Appellants] wrongfully
               terminated the Lease Purchase Agreement by
               asserting that [Appellee] had not paid rent in
               December and January when [Appellee] did pay the
               rent in December and the January rent was not yet
               due.

     In response, [Appellants] alleged in their answer that:

              19. It is admitted that pursuant to the commercial
               lease agreement, [Appellee] is obligated to pay
               monthly rent in the amount of $500.00 per month.
               By way of further answer, [Appellee] had failed and
               refused to do so.

              20. It is specifically denied that any lease purchase
               agreement exists and strict proof to the contrary is
               demanded thereof.

              21. Denied, on the contrary, [Appellants] properly
               terminated the commercial lease agreement, and
               therefore the option to purchase, and strict proof to
               the contrary is demanded.

     Arguably, by virtue of their failure to specifically deny the factual
     averments in Paragraphs 20 and 21, it is [Appellants] whom
     should be deemed to have admitted that [Appellee] tendered
     December’s rent in accordance with the lease and that January’s
     rent was not yet due when they terminated the lease. But in
     any event, there was no need for [Appellee] to respond to
     averments [in Appellants’ counterclaim and new matter] such as
     “[i]n breach of the terms of the commercial lease agreement,
     [Appellee] has failed to pay rent for the period December 10,
     2013 through and including December 2014[,]” because the
     matter was clearly placed into issue by the complaint and
     answer. And as such, there is no basis to grant [Appellants’]
     motion for post-trial relief and deny [Appellee] specific
     performance.

     Moreover, by the time [Appellee] had actually stopped paying
     rent in this case, [Appellants] had already materially breached
     the lease by their actions and inactions in terms of the option to
     purchase provision, which also provided that its terms and
     conditions “shall supercede [sic] any terms elsewhere in the
     agreement that is in conflict with these conditions[,]” (emphasis
     added [by trial court]), and by wrongfully terminating it.

                                     -9-
J-A21013-16


     Suspending payment of rent under such circumstances did not
     defeat [Appellee’s] right to specific performance and [Appellants]
     were more than made whole by the award of $6,500.

Id. at 2 (internal citations and some quotation marks omitted). After careful

review, we conclude that the court’s factual determinations are well-

supported by the record, and we would discern no abuse of discretion.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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