                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Coal Tubin’ PA, LLC,                     :
                             Appellant   :
                                         :
                      v.                 :
                                         :
Cambria County Transit                   :   No. 1470 C.D. 2016
Authority, Ron Locher                    :   Submitted: April 6, 2017


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ANNE E. COVEY, Judge



OPINION BY
JUDGE COVEY                                  FILED: May 12, 2017

               Coal Tubin’ PA, LLC (Coal Tubin’) appeals from the Cambria County
Common Pleas Court’s (trial court) August 1, 2016 order dismissing Coal Tubin’s
Petition to Set Aside Sale of Property (Petition). Appellant presents two issues for
this Court’s review: (1) whether the Cambria County Transit Authority (CamTran)
violated the Municipality Authorities Act (MAA)1 by engaging in property ownership
not wholly or partially devoted to public use; and (2) whether the Cambria County
(County) taxpayers and the public were protected when the sale of the property was
awarded to a single bidder with actual knowledge of the sale and at 35% less than the
appraised value. After review, we affirm.




      1
          53 Pa.C.S. §§ 5601-5623.
                                          Background
               Chad Gontkovic (Gontkovic) formed Coal Tubin’ in December 2009.
Coal Tubin’ is a recreation outfitter, providing river tubing excursions, whitewater
rafting, and other eco-adventures. In 2010, Coal Tubin’ began leasing a building
owned by CamTran located on property along the Stonycreek River at 303 Central
Avenue in Johnstown, Pennsylvania. Gontkovic chose this location as it was ideally
situated along the river allowing easy access for customers. Ron Locher (Locher)
leased a separate building, also located at 303 Central Avenue property. Locher owns
and operates Locher Excavation and Demolition which uses its building at 303
Central Avenue (Locher Building) to “move his various materials” from work sites,
store vehicles during the winter, and perform work on vehicles. Notes of Testimony,
July 7, 2016 (N.T.) at 8. The Locher Building was in such a state of disrepair that it
was not safe to occupy.
               Gontkovic, on behalf of Coal Tubin’, communicated on numerous
occasions with CamTran representatives that he desired to purchase the property
where the Locher Building was located (Property).2 Gontkovic first spoke with
CamTran administrator Walt Hoffman (Hoffman) the first year that Coal Tubin’ was
in business. Gontkovic asked Hoffman what the plan was for the Property and,
although Hoffman did not know, he said he would try to find out. Gontkovic met
with Hoffman a few times relative to the Property’s potential sale. In the spring of
2011, after Hoffman retired, Gontkovic discussed the matter with Hoffman’s
successor, Rose Lucy-Noll (Lucy-Noll). Gontkovic continued similar conversations
with Lucy-Noll, stopping by her office every three to four months to ask about the
potential of selling the Property. Lucy-Noll eventually suggested that Gontkovic


       2
          A review of the record reveals that the “building” Locher leased and the “parcel” on which
it is located are interchangeably referred to as the “Property.” However, the sale in question is the
sale of the “parcel” on which the Locher Building is situated. N.T. at 51.
                                                 2
attend a CamTran Board of Directors’ (Board) meeting to discuss the possibility of
the Property’s sale.
             Gontkovic attended a CamTran Board meeting sometime before
November 3, 2013, spoke to the Board about Coal Tubin’, and requested that Coal
Tubin’ be permitted to purchase the Property.       CamTran’s Board Chairman Ed
Cernic, Jr. (Cernic) stated that CamTran was unable to sell the Property at that time,
since it had been a gift to CamTran from the Glosser Foundation, and there were
many options to consider. Before leaving the Board meeting, Gontkovic told the
Board that he just wanted to have the option of purchasing the Property.
             On November 3, 2013, after continuing to speak to some middle
management at CamTran, County Commissioner Tom Chernisky (Chernisky)
arranged a workshop attended by Chernisky, Gontkovic, Gontkovic’s wife, Cernic,
Locher and Locher’s employee Jamey Goldberg. The purpose of the workshop was
to devise “a solution that worked for everybody[,]” i.e., Locher could obtain a new
building on a better piece of land, Gontkovich could have a more feasible riverfront
business location, and CamTran would no longer have to maintain dilapidated
buildings. N.T. at 14. However, the parties were ultimately unable to reach an
agreement. Some contention arose among them during the workshop and, as a result,
Gontkovic left the meeting without the parties having developed a solution or arrived
at an agreement.       For the next approximately 2½ years, Gontkovic did not
communicate with CamTran regarding the sale of the Property because he believed
that CamTran would not be selling the Property and, if it ever were to sell, it would
contact him since CamTran knew for years that he wished to purchase the Property.
             More than a year after the workshop took place, the Pennsylvania
Department of Transportation (PennDOT) notified Coal Tubin’ that it would be
replacing a nearby bridge and, in doing so, would need to tear down the building that
Coal Tubin’ was leasing.       Coal Tubin’ was assigned to Commonwealth of
                                          3
Pennsylvania relocation representative John Castell (Castell). Coal Tubin’ made
Castell aware of its desire to purchase the portion of the Property that PennDOT was
not taking. Castell went to a CamTran Board meeting on Coal Tubin’s behalf and
inquired whether CamTran would be willing to sell the Property, but was informed
that CamTran would not be selling it.
            Locher notified CamTran’s maintenance director Bernie Walkowsky that
water had begun to leak through the Locher Building’s roof during snow and rain
storms. In response, CamTran hired a contractor to repair the Locher Building’s roof.
After bringing its tools and materials to the work site, the contractor and CamTran
took the steps necessary to obtain a construction permit from the City of Johnstown
(City) to complete the necessary work. The City ultimately denied the permit, stating
that the Locher Building had structural damage and would need to have stress work
performed. CamTran hired a second contractor to assess the building in light of the
newly-discovered damage. In late March or early April 2016, after receiving the
second contractor’s assessment and work estimate, CamTran decided to sell the
Property rather than proceed with the extensive and costly work needed to make the
Locher Building safe.
            CamTran placed an advertisement for the Property’s sale in the Tribune
Democrat newspaper on Friday, April 8, 2016 and Sunday, April 10, 2016. CamTran
typically places its advertisements in the Friday and Sunday papers, since those
editions have the highest readership.      CamTran’s Property sale advertisement
required that purchase bids be submitted to CamTran by April 21, 2016,
approximately 11 days after the last day the advertisement appeared in the
newspaper. CamTran received only one bid, which was from Locher. Locher’s bid
was for $31,290.00, which CamTran’s Board unanimously accepted.
            Gontkovic did not see the April 8 or April 10, 2016 newspaper
advertisements, nor was he notified about the Property’s sale from any source,
                                         4
including friends, family or CamTran. Gontkovic was on a military deployment at
the time of the advertisements. CamTran informed Locher, by way of his eviction
notice, that the Property was being placed for sale and would be advertised the
following week. Although Coal Tubin’ was sent a similar letter notifying Coal
Tubin’ that it had 30 days to vacate the property, the letter made no mention of the
sale. While the buildings occupied by Locher and Coal Tubin’ were on the same
piece of property, the building occupied by Coal Tubin’ was being torn down to make
way for the bridge construction while the Locher Building was the actual building
being set for sale. Although the subdivision may not have taken place at the time of
the sale, the one parcel owned by CamTran was to be subdivided into two parcels -
the part occupied by Coal Tubin’ taken by PennDOT and the part occupied by Locher
set for sale.
                Locher initially decided to make a bid of $25,000.00, but increased his
bid to $31,290.00 after seeing Coal Tubin’ employees walking the property line and
mistakenly believing they were trying to determine the size of the Property in
preparation of submitting a bid to CamTran. Hagerich & Son Real Estate appraised
the Property (excluding PennDOT’s condemned parcel) at an Estimated Market
Value (EMV) of $47,400.00. Accordingly, the Property’s ultimate sale price was
$16,110.00 less than its EMV.


                                               Facts
                On May 27, 2016, Coal Tubin’ filed its Petition. On July 7, 2016, the
trial court held a hearing. On August 1, 2016, the trial court dismissed the Petition.
Coal Tubin’ did not file post trial-motions. On August 29, 2016, Coal Tubin’ filed an
appeal with this Court.3 The trial court issued an order directing Coal Tubin’ to file a

       3
         “Our standard of review of a non-jury trial is to determine whether the findings of the trial
court are supported by competent evidence, and whether an error of law was committed.” Metro.
                                                  5
Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained of
on appeal (Rule 1925(b) Statement). Coal Tubin’ filed its Rule 1925(b) Statement on
October 19, 2016. On November 28, 2016, the trial court filed its opinion.


                                          Discussion
              Before reaching the merits of the case, we must determine if Coal Tubin’
has preserved any issues for appeal. Pennsylvania Rule of Civil Procedure No.
(Rule) 227.1(c) provides: “Post-trial motions shall be filed within ten days after (1)
verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a
jury trial; or (2) notice of nonsuit or the filing of the decision in the case of a trial
without jury.” Pa.R.C.P. No. 227.1(c) (emphasis added). Coal Tubin’ did not file
post-trial motions.

              Even though neither party has raised the issue of whether
              this [C]ourt has jurisdiction to consider [Coal Tubin’s]
              appeal when it failed to preserve any issues for review by
              not filing post-trial motions pursuant to [Rule] 227.1, the
              question of appealability implicates the jurisdiction of this
              [C]ourt - a non-waivable matter - so that the failure of the
              parties to raise the issue does not prevent this [C]ourt from
              doing so sua sponte.
Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 n.4 (Pa. Cmwlth. 1998). We
acknowledge that Coal Tubin’ filed a Rule 1925(b) Statement. “However, waiver
due to failure to file post-trial motions will not be remedied by listing those issues in
a Rule 1925(b) [S]tatement.” The Ridings at Whitpain Homeowners Ass’n v. Schiller,
811 A.2d 1111, 1114 n.4 (Pa. Cmwlth. 2002).
              The Pennsylvania Supreme Court has stated: “Under Rule 227.1, a party
must file post-trial motions at the conclusion of a trial in any type of action in order

Edison Co. v. City of Reading, 125 A.3d 499, 501 n.3 (Pa. Cmwlth. 2015) (quoting Swift v. Dep’t of
Transp., 937 A.2d 1162, 1167 n.5 (Pa. Cmwlth. 2007)).


                                                6
to preserve claims that the party wishes to raise on appeal.” Chalkey v. Roush,
805 A.2d 491, 496 (Pa. 2002) (bolded emphasis added). Our Supreme Court has
further held: “If an issue has not been raised in a post-trial motion, it is waived for
appeal purposes.” L.B. Foster Co. v. Lane Enters., Inc., 710 A.2d 55, 55 (Pa. 1998).
Moreover, this Court has consistently ruled: “Where a party fails to file timely post-
trial motions after a bench trial, no issues are preserved for this Court to review.”
Liparota v. State Workmen’s Ins. Fund, 722 A.2d 253, 256 (Pa. Cmwlth. 1999); see
also P.S. Hysong v. Lewicki, 931 A.2d 63, 67 (Pa. Cmwlth. 2007) (There is
“overwhelming authority that the failure of an appellant to file post-trial motions in a
proceeding to which [Rule] 227.1 applies results in a waiver of issues[.]”); Schiller,
811 A.2d at 1116 (“[The appellants] failed to file post-trial motions thus waiving their
issues on appeal[.]”); Heck, 719 A.2d at 380 (“A party’s failure to file post-trial
motions results in a waiver of all issues for appellate review and requires that the
appeal be dismissed.”). “Consequently, when [Coal Tubin’] failed to file post-trial
motions within ten days following the trial court’s order, the issues it sought to raise
in its [Rule 1925(b) Statement] were waived.” City of Phila. v. New Life Evangelistic
Church, 114 A.3d 472, 478-79 (Pa. Cmwlth. 2015).
               We acknowledge that Coal Tubin’ filed a Petition to Set Aside Sale and
that statutory appeals under the Real Estate Tax Sale Law (RETSL)4 do not require
the filing of post-trial motions. See Appeal of Borough of Churchill, 575 A.2d 550
(Pa. 1990). However, the fact that Coal Tubin’ filed a “Petition to Set Aside” does
not transform the matter into a statutory appeal under the RESTL. Coal Tubin’ did
not request that the trial court set aside a tax sale or a judicial sale. Rather, Coal
Tubin’ was seeking to have the trial court declare the sale invalid because CamTran
violated the MAA. “There is no jurisprudential reason for this Court to elevate form

      4
          Act of July 7, 1947, P.L. 1368, as amended, 72 P.S. §§ 5860.101-5860.803.


                                                 7
over substance by relying on the title of the pleading, as opposed to the relief sought
therein, as conclusively determining the form of action.” Taylor v. Pa. State Police,
132 A.3d 590, 599 (Pa. Cmwlth. 2016). Moreover, the MAA does not provide appeal
provisions for the sale of property. See Section 5607(d)(4) of the MAA, 53 Pa.C.S. §
5607(d)(4). Thus, Coal Tubin’s correct form of action would have been a declaratory
judgment action alleging that the sale violated the MAA pursuant to which CamTran
derived its power to sell the Property. Our Supreme Court explained:
              The venerable purpose of the post-trial motion procedure is
              to permit the trial court to correct its own errors before
              appellate review is commenced. Allowing parties to bypass
              such procedures in declaratory judgment actions would
              deprive the trial court of this critical gatekeeping function,
              while doing little to expedite appellate review. In addition,
              excepting declaratory judgment orders from the plain
              language of Rule 227.1 would unnecessarily complicate
              application of that rule and result in further confusion
              among litigants and the lower courts. Accordingly, we hold
              that post-trial declaratory judgment orders, just like other
              post-trial orders, are subject to the post-trial motion
              procedures in Rule 227.1.

Motorists Mut. Ins. Co. v. Pinkerton, 830 A.2d 958, 964 (Pa. 2003) (citation and
footnote omitted).
              Due to its failure to file post-trial motions, Coal Tubin’ has waived all
issues on appeal.5 Accordingly, the trial court’s order is affirmed.


                                          ___________________________
                                          ANNE E. COVEY, Judge




       5
         Based upon this holding, we need not reach the merits of Coal Tubin’s appeal.
Notwithstanding, this Court has reviewed the trial court’s decision and discerns no error in its
reasoning.
                                               8
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Coal Tubin’ PA, LLC,                    :
                         Appellant      :
                                        :
                   v.                   :
                                        :
Cambria County Transit                  :   No. 1470 C.D. 2016
Authority, Ron Locher                   :



                                     ORDER


            AND NOW, this 12th day of May, 2017, the Cambria County Common
Pleas Court’s August 1, 2016 order is affirmed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
