J-S54004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANDREW R. DEWING AND                           IN THE SUPERIOR COURT OF
SALLY A. DEWING                                      PENNSYLVANIA

                            Appellants

                       v.

ABARTA OIL & GAS CO., INC., TALISMAN
ENERGY USA, INC., RANGE RESOURCES
APPALACHIA, LLC

                            Appellees               No. 1537 MDA 2013


                 Appeal from the Order Entered July 30, 2013
               In the Court of Common Pleas of Bradford County
                      Civil Division at No(s): 2010 CV -480


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.                      FILED SEPTEMBER 25, 2014




Oil & Gas Co., Inc. (Abarta), Talisman Energy USA, Inc. (Talisman), and



vacate and remand.

       The Dewings own more than 493 acres of land1 located in Warren

Township, Bradford County, Pennsylvania. On April 3, 2001, the Dewings,

as lessors, entered into a ten-year oil and gas lease with Central Appalachian

____________________________________________


1
 The property is mainly agricultural in nature, containing maple trees for the
harvesting of sap to make syrup.
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Petroleum (CAP), as lessees. The lease requires a payment of delay rental

of $5.00 per acre annually to maintain the lease during the primary term

unless and until a well is drilled on the property or a well unit is drilled and

such well produces oil and/or gas in commercial quantities.      Appellees are

the successors-in-interest of CAP and co-lessees under the lease. Appellees

had working interests in the lease2 and paid the annual delay rental to the

Dewings for years.

       On April 13, 2010, the Dewings gave Abarta notice that the delay

rental payment due on the third of that month had not been received. By

email on April 20, 2010



counsel advised the Dewings that Range was handling all administrative

matters related to the lease, including, but not limited to, paying delay

rentals. From April 26, 2010 through June 21, 2010, the Dewings received

no delay rental payments from Appellees. By letter dated June 21, 2010,

the Dewings served notice on Range, with a copy to Talisman, advising them

that the lease was being terminated as a result of the delinquent delay



the letter, the Dewings requested that Appellees file a release of the lease.



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2
  Specifically, Abarta had a 10% working interest, Range a 50% working
interest and Talisman a 40% working interest.



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On July 2, 2010, Range sent the Dewings a check for the delinquent delay

rentals.

      On August 3, 2010, the Dewings commenced the underlying action

against Appellees alleging termination of and abandonment of the lease. In

the complaint, the Dewings sought a declaration that:         (1) they have the

right to file an action for forfeiture pursuant to the forfeiture provision in the




after receiving a demand for payment, evidences the abandonment of the

lease and also constitutes a material breach. On August 20, 2010, Appellees

filed an answer/new matter asserting that their untimely remittance of the

delay rental monies does not give rise to the remedy of forfeiture, that the

lease remains in full force and effect, that the forfeiture clause in the lease is



lease is not a material breach. On August 23, 2010, Appellees moved for a

preliminary injunction, claiming therein that the Dewings refused to provide



well pad, access road, and pipeline locations.       The Dewings opposed the

request for injunctive relief, arguing the lease was subject to termination.

      The parties submitted a joint statement of stipulated facts; oral

argument on a ruling regarding the stipulated facts was subsequently held.

At the beginning of the hearing, the parties agreed that the sole legal issue

before the court was whether the forfeiture provision in the lease was an

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that gives the Dewings the right to terminate the lease.         After conducting

the equivalent of a stipulated non-jury trial, the trial court concluded that



Appellees had not materially breached the lease, that notice of a demand for

payment is not, in and of itself, sufficient to obtain forfeiture at trial, and no

other evidence suggested that the Appellees had abandoned the lease.

Based on these conclusions, on January 14, 2011, the trial court granted a

preliminary injunction3 in favor of Appellees. However, because the parties

had agreed to convert the injunction hearing into a hearing on the merits,

the court issued an order, on February 25, 2011, entering final judgment in

favor of Appellees on their counterclaims and dismissing all claims in the



        The Dewings filed post-trial motions on March 28, 2011.4       Appellees

claimed that the motions were filed late.        However, the Dewings asserted
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3
 The injunction prohibited the Dewings from further breaching the lease and
permitted Appellees immediate access to the subject property to conduct oil
and gas operations as set forth in the lease.
4
    Pursuant to Pa.R.C.P. 227.1:

        (c) 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.
(Footnote Continued Next Page)


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that the Bradford County Prothonotary failed to send them notice of the final

judgment until March 17, 2011,5 which they did not receive until March 21,

2011, despite the fact that the order and certificate of service were filed on

February 25, 2011. On May 6, 2011, the trial court held a hearing on the

                -trial motions.        Subsequently, the Dewings filed proposed

findings of fact to support their post-trial motions and the Appellees filed a

motion to strike the Dewings proposed factual findings.

      On June 21, 2012, the trial court entered an order permitting the

Dewings to present evidence to support their claim that there was a



February 25, 2011 final judgment. The order permitted the parties to take

depositions on disputed questions of fact in accordance with Pa.R.C.P. 206.7,

and, alternatively, permitted Appellees to seek expedited resolution of the

controversy.     The court scheduled an October 4, 2013 hearing on the

timeliness issue, requested by the Dewings in accordance with the dictates

of the June 21, 2012 order. On July 30, 2013, Appellees filed a praecipe for
                       _______________________
(Footnote Continued)

Pa.R.C.P. 227.1 (emphasis added). Here, if we accept the fact that the
Dewings did not receive the requisite notice under Rule 236 until March 17 th
(because the tenth day fell on a Saturday), the Dewings post-trial motions
were conceivably timely filed on Monday, March 28, 2011. See Pa.R.C.P.

or Sunday . . . such day shall be omit
5
 The Dewings attached a copy of first-class US postal service, date-stamped
envelope from the Prothonotary addressed to them. The metered date is
03/17/2011.



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entry of judgment in accordance with Pa.R.C.P. 227.4(1)(b). Final judgment

was entered and, on August 13, 2013, the Dewings filed a notice of appeal

                                                                              s.

      Before we can proceed to decide this appeal on the merits, we must

                                               -trial motions were timely filed, as

such a finding is critical to determine whether they have preserved their

issues for appeal. If, in fact, the motion was untimely filed, then all issues

on appeal would be deemed waived. See L.B. Foster v. Lane Enterprises,

710 A.2d 55, 54 (Pa. 1998).



who wishes to appeal [an action at law] to file post-trial motions with the

trial court within ten days after . . . notice of . . . the filing of the decision . .

                                                  Motorists Mutual Ins. Co. v.

Pinkerton, 830 A.2d 958, 962 (Pa. 2003), citing Pa.R



purposes of filing an appeal until the court decides any timely post-trial

            Chalkey v. Roush, 805 A.2d 491, 496 (Pa. 2002). Rule 227.1

requires parties to file post-trial motions in order to preserve issues for

appeal. If an issue has not been raised in a post-trial motion, it is waived

for appeal purposes. Lane Enterprises, supra.

      Here, the Dewings filed post-trial motions on March 28, 2011 from the

                                                             -- clearly beyond the

10-day time limit set forth in Rule 227.1.        However, the Dewings contend

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that their motion is timely because the Prothonotary did not actually mail

notice of the final judgment until March 17, 2011, and they did not receive it

until March 21, 1011. The court notes that on the face of the record, the

                 -trial motions are untimely.      Id.    Moreover, Appellees

submitted an affidavit from their attorney indicating that on February 28,

2011, the prothonotary provided notice that copies of the order entering

final judgment had been mailed to counsel and that he actually received that

order by March 3, 2011. Appellees also attached, as an exhibit to their brief

in opposi                                        -trial relief, a file copy of the

notice given to the parties regarding the filing of the February 25, 2011

order. The trial court acknowledges that a question of fact exists regarding



February 28, 2011, as suggested by the record, or mailed it on March 17,



       Although the court scheduled a hearing on the timeliness issue for

October 4, 2013,6 because 120 days elapsed, without a decision, from the

                                                      -trial motions, Appellees

praeciped for entry of judgment on July 30, 2013, in accordance with



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6
  The record contains an order indicating that the timeliness hearing was
cancelled due to the fact that final judgment had been entered and an
appeal filed in the case.




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Pa.R.C.P. 227.4.7      On that same date, judgment was entered against the

Dewings. The Dewings filed a timely notice of appeal on August 13, 2013,

from that judgment.         On appeal, they present one issue for our review:

Whether the court erred in entering final judgment in favor of [A]ppellees

when the plain language of the lease as well as the joint statement of

stipulated facts indicates the judgment should have been entered in favor of

[A]ppellant[s].

                                                                                   -

trial motions were timely filed, we must vacate the judgment and remand

this case to the trial court for a hearing on the issue. The record contains
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7
    Rule 227.4 states, in relevant part:

        In addition to the provisions of any Rule of Civil Procedure or Act
        of Assembly authorizing the prothonotary to enter judgment
        upon praecipe of a party and except as otherwise provided by
        Rule 1042.72(e)(3), the prothonotary shall, upon praecipe of a
        party:

           (1) enter judgment upon a nonsuit by the court, the verdict of
              a jury or the decision of a judge following a trial without
              jury, if

              (a) no timely post-trial motion is filed; or

              (b) one or more timely post-trial motions are filed and the court
              does not enter an order disposing of all motions within one
              hundred twenty days after the filing of the first motion. A
              judgment entered pursuant to this subparagraph shall be
              final as to all parties and all issues and shall not be subject to
              reconsideration[.]

Pa.R.C.P. 227.4.



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conflicting evidence from the parties over the timeliness issue and it is not

our function, as an appellate court, to make credibility determinations over

such matters when the record is not clear.

       Here, the trial court is more familiar with local county rules regarding

notice of final judgments. With those local practices in mind, on remand the

court must determine whether the prothonotary of Bradford County gave

written notice of the entry of the judgment to the Dewings attorney, with a

copy of the actual judgment in accordance with Rule 236(a)(2). Moreover,

the court shall determine whether the prothonotary complied with Rule

236(b), which requires that the prothonotary note in the docket when notice

was given.8

       Order vacated.      Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
ProthonotaryDate: 9/25/2014
____________________________________________


8
  We are also aware of the fact that a party may be granted the right to file
post-trial motions nunc pro tunc
is] granted only where there was fraud or a breakdown in the court's
                                               Vietri v. Del. Valley High
Sch., 63 A.3d 1281, 1284 (Pa. Super. 2013). Presumably, this would have
been a potential remedy in the event that it was determined that notice of
the final judgment from the prothonotary was not sent to the Dewings in a
timely fashion.



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