J-A11037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAULA LUCKRING                                  IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

CHRISTOPHER BLAIR

                            Appellee                No. 2390 EDA 2014


               Appeal from the Order Entered on March 14, 2014
               In the Court of Common Pleas of Delaware County
                         Civil Division at No.: 11-53896


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED JUNE 16, 2015

       Paula Luckring appeals from the trial court’s March 14, 2014 order

enforcing the parties’ settlement agreement and release.1        Because we

conclude that her appeal was untimely filed, we quash.

       The trial court set forth the following recitation of the facts and

procedural history of this case:

       [Luckring] has appealed from [the trial c]ourt’s Settlement
       Enforcement Order of March 14, 2014 granting relief to both
       herself and . . . Christopher Blair, in this action alleging that
       borderline trees owned by [Blair] encroached upon and caused
       damage to [Luckring’s] adjacent real property. The parties
____________________________________________


1
      Luckring purports to appeal from the praecipe for judgment she filed
on August 7, 2014. For the reasons discussed below, we have amended the
caption to reflect that the appeal properly lies from the order of March 14,
2014.
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      settled the case pre-trial by executing and stipulating to a
      Settlement Agreement and Release that called for [Blair] to
      grant title to [Luckring], free of charge, to an eleven foot strip of
      his own land and to build, at his own expense, a fence marking
      the new boundary line between their respective parcels.
      Nevertheless, the parties were back in court a year later seeking
      to resolve the predictable drama ensuing from [Luckring’s]
      abject and literal refusal to allow the fence company to set foot
      on her newly acquired property in order to erect the structure.
      The contractor then built the fence thirteen inches inside [Blair’s]
      side of the new property line in order to appease [Luckring] in
      that regard.     Adding further insult to injury to [Blair, who
      suffers] from severe Parkinson’s Disease, [Luckring] complained
      that such work must be accomplished without setting foot on her
      land when [Blair] attempted to clear his property on [Luckring’s]
      side of the fence of tall grass and weeds. [Luckring] has since
      insisted that she would do so herself if granted an easement to
      that additional piece of [Blair’s] property.

Trial Court Opinion (“T.C.O.”), 12/5/2014, at 1.

      On September 4, 2013, Blair filed a petition to enforce the settlement,

bringing the above allegations about Luckring’s refusal to comply with the

fencing requirements to the court’s attention.        On September 24, 2013,

Luckring responded to the petition with a new matter, alleging that the

conveyance was burdened by a mortgage despite the terms of the

settlement, and requesting that she be granted a recorded easement to the

additional thirteen inches of property on her side of the fence. Blair filed his

answer to Luckring on January 9, 2014, denying her claim. A hearing was

conducted on January 27, 2014.        On February 21, 2014, the trial court

issued its findings of fact and conclusions of law.

      On March 14, 2014, the court filed a settlement enforcement order,

which found, as follows:


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      1.    [Luckring] breached the provisions of the parties’
      Settlement Agreement that required her: (a) not to oppose in
      any manner the erection of the fence installed by [Blair] parallel
      to the subject property line and to waive any and all objections
      thereto, and (b) to reasonably cooperate with [Blair] in good
      faith in order to effectuate the intent and purposes of their
      Agreement. Therefore, [Luckring] is ORDERED, at her own
      expense, to remove the existing fence from its present location
      and to replace it upon the denoted property line of the parcel
      conveyed by [Blair] to [Luckring] by Deed, so as to create an
      impenetrable demarcation between the two properties in
      question, within 60 days from the date of notice of this Order or
      risk the imposition of additional sanctions upon [Blair’s]
      application to the [c]ourt.

      2.     [Blair] breached his obligation, set forth in Paragraph 1 of
      the parties’ Settlement Agreement and Release, to timely convey
      [sic] a good, marketable and insurable title to the subject eleven
      foot strip of property deeded by [Blair] to [Luckring] for nominal
      consideration.

Order, 3/14/2014, at 1-2 (record citations omitted).

      On March 24, 2014, Luckring filed a post-trial motion challenging the

trial court’s factual findings. Blair responded on April 7, 2014, alleging that

post-trial motions were inappropriate pursuant to Pa.R.C.P. 227.1. The trial

court denied Luckring’s post-trial motion on May 6, 2014.       Three months

later, on August 7, 2014, Luckring filed a praecipe for entry of judgment and

attached the court’s March 14, 2014 settlement enforcement order.

Thereafter, on August 12, 2014, Luckring filed a notice of appeal to the

Superior Court.

      On August 26, 2014, the trial court ordered Luckring to file a concise

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

Luckring filed a Pa.R.A.P. 1925(b) statement on September 8, 2014.          The

trial court entered its Pa.R.A.P. 1925(a) opinion on December 5, 2014.

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      On September 9, 2014, this Court, in a per curiam order, issued a rule

to show cause as to why the appeal should not be quashed as untimely filed.

Luckring timely responded on September 17, 2014. This Court discharged

the rule on September 24, 2014, deferring the issue to this panel.

      Luckring raises four questions for our review:

      1.    Is Luckring’s appeal timely?

      2.    Did the trial [c]ourt err in holding that Luckring “opposed”
      the erection of the fence by Blair and so breached the terms of
      ¶ 3 of the Settlement Agreement?

      3.    Did the trial [c]ourt err in holding that Luckring did not
      “reasonably cooperate” with Blair in order to effectuate the
      intent and purposes of the Settlement Agreement and so
      breached ¶ 5(i) of the Settlement Agreement?

      4.   Did the trial [c]ourt have the authority to order Luckring to
      move Blair’s fence at her expense to the property line?

Luckring’s Brief at 6.

      In her first issue, Luckring challenges the trial court’s assertion that

her appeal must be quashed as untimely. She contends that her appeal was

timely filed within thirty days of the August 7, 2014 praecipe for entry of

judgment “[f]or the reasons more fully set forth in Luckring’s response to

the Order to Show Cause.” Id. at 17. We disagree.

      Preliminarily, we disapprove of Luckring’s failure to argue fully her

issue in her appellate brief, instead attempting to incorporate by reference

the analysis she proffered in her September 17, 2014 response to the Rule

to Show Cause. Id. It is well-settled that “[w]hen an appellant attempts to

incorporate by reference issues addressed elsewhere and fails to argue them

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in [her] brief, the issues are waived.” Moses Taylor Hosp. v. White, 799

A.2d 802, 804 (Pa. Super. 2002); see also Commonwealth v. Rodgers,

605 A.2d 1228, 1239 (Pa. Super. 1992) (“[A]n appellate brief is simply not

an appropriate vehicle for the incorporation by reference of matter[s]

appearing in previously filed legal documents[.]”). Nonetheless, because the

timeliness of Luckring’s appeal triggers our jurisdiction to examine its merits,

we must proceed.2

       “Jurisdiction is vested in the Superior Court upon the filing of a timely

notice of appeal.” In the Interest of R.Y., 957 A.2d 780, 783 (Pa. Super.

2008). “In this Commonwealth, there are few legal principles as well settled

as that an appeal lies only from a final order, unless otherwise permitted by

rule or by statute.” Slusser v. Laputka, Bayless, Ecker & Cohn, P.C., 9

A.3d 1200, 1205 (Pa. Super. 2010).

       Subject to exceptions “an appeal may be taken of right from any
       final order of an administrative agency or lower court.”
       Pa.R.A.P. 341(a). A final order is an order that disposes of all
       claims and of all parties, or is expressly defined as a final order
       by statute or by the ordering court. Pa.R.A.P. 341(b).

Friia v. Friia, 780 A.2d 664, 667 (Pa. Super. 2001); see also Pa.R.A.P. 903

(“[T]he notice of appeal . . . shall be filed within 30 days after the entry of

the order from which the appeal is taken.”).
____________________________________________


2
      “The appealability of an order is a question of jurisdiction and may be
raised sua sponte.” Bolmgren v. State Farm Fire and Cas. Co., 758 A.2d
689, 690 (Pa. Super. 2000).




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J-A11037-15



     Here, Luckring contends that she was required to file post-trial

motions to preserve her issues for appeal, and thus her appeal was timely

filed after she filed a praecipe for entry of judgment on August 7, 2014. See

Luckring’s Response to Rule to Show Cause, 9/17/2014, at 3-5. Conversely,

Blair asserts that post-trial motions were unnecessary, and in fact, should

not have been permitted.       Blair’s Brief at 5-7.   Thus, the final order from

which the parties properly should have appealed is the March 14, 2014

settlement enforcement order, and Luckring’s August 12, 2014 notice of

appeal is patently untimely.

     In Bennett v. Juzelenos, 791 A.2d 403, 405-06 (Pa. Super. 2002), a

panel of this Court considered whether a party was required to file post-trial

motions from an order enforcing a settlement agreement:

     Before reaching the merits of Appellants’ issues, we must
     address the Bennetts’ claim that the issues were not preserved
     for appellate review. This appeal follows a hearing on the pre-
     trial petition of the Bennetts to enforce a settlement agreement
     which they believe was reached with Appellants.           Following
     conclusion of the hearing, the Chancellor entered a final order,
     finding the settlement agreement was enforceable and directing
     the parties to effectuate it. Appellants did not file any post-trial
     motions following entry of the court’s order. In the case of a
     nonjury trial, an appellant ordinarily must file post-trial motions
     pursuant to Pa.R.C.P. 227.1(c)(2), in order to preserve issues for
     appellate review[.] See Lane Enterprises v. L.B. Foster Co.,
     710 A.2d 54 (Pa. 1998) (if an issue has not been raised in a
     post-trial motion as required by Pa.R.C.P. 227.1 it is waived for
     appellate purposes); but see Chalkey v. Roush, 757 A.2d 972,
     976 (Pa. Super. 2000) (en banc), appeal granted, 785 A.2d 86
     (Pa. 2001) (under certain exceptional circumstances, such as
     when an equity court enters a final order rather than a decree
     nisi to which exceptions may be filed, an appellant does not
     waive issues by failing to file post-trial motions).

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J-A11037-15


     Nevertheless, Appellants have not waived their claims for
     appellate review.     Although the parties and the Chancellor
     appear to treat this matter as an appeal following an equity trial,
     such is clearly not the case.      The merits of the Bennetts’
     underlying action to reform the parties’ deeds and Appellants’
     counterclaim in trespass were never addressed. Rather, only the
     petition to enforce the settlement was addressed at the hearing
     and in the court’s order and opinion.

     The Note to Pa.R.C.P. 227.1(c)(2) 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.” (citing U.S.
     National Bank in Johnstown v. Johnson, 487 A.2d 809 (Pa.
     1985)). Further, “a motion for post-trial relief may not be filed
     to matters governed exclusively by the rules of petition
     practice.”  Pa.R.C.P. 227.1(c)(2); note Porreco v. Maleno
     Developers, Inc., 761 A.2d 629, 632 (Pa. Cmwlth. 2000).

     Our Supreme Court held in Coco Brothers, Inc. v. Board of
     Public Education of the School District of Pittsburgh, 608
     A.2d 1035 (Pa. 1992), that post-trial motions were not required,
     or even permissible, from a trial court’s order disposing of a
     petition to enforce a judgment. The Supreme Court held that
     the proceedings to enforce a judgment were clearly within the
     type of procedures described in the Note to Rule 227.1(c)(2).
     Similarly, we held in Kramer v. Schaeffer, 751 A.2d 241 (Pa.
     Super. 2000), that no post-trial motions were required from a
     trial court’s decision on a motion to enforce a settlement.
     Although the trial court conducted a lengthy evidentiary hearing
     in Kramer, we concluded that the proceedings were not the type
     from which post-trial motions are required. Kramer, 751 A.2d
     at 244. Finally, in a case of nearly identical procedural posture
     to that before us, our Commonwealth Court held that an appeal
     shall not be “quashed” for failure to file post-trial motions from
     an order enforcing a settlement agreement. Porreco, 761 A.2d
     at 632. Accordingly, we find that Appellants have not waived
     any of their claims for failing to file post-trial motions in
     accordance with Pa.R.C.P. 227.1, because such motions are not
     permitted from an order granting a petition to enforce a
     settlement agreement.

791 A.2d at 405-06 (Pa. Super. 2002).

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      Here, as in Kramer, the trial court engaged the parties in an

evidentiary hearing before issuing its March 14, 2014 order to enforce the

original March 11, 2013 settlement order.          Nonetheless, as Bennet

demonstrates, a hearing on the matter of a petition to enforce a settlement

is not a trial from which post-trial motions are required to preserve issues

for appeal.    Bennet, 791 A.2d at 406.

      In the instant case, Luckring was not required—and in fact, should not

have been permitted—to file post-trial motions. Id. Accordingly, the final

order from which Luckring’s appeal properly lies is the March 14, 2014 order

enforcing the prior settlement. See Kramer, 751 A.2d at 244-45 (holding

that enforcement of a post-verdict settlement is a final order appealable to

this Court pursuant to Pa.R.A.P. 341).     Thus, Luckring’s notice of appeal

should have been filed within thirty days of the date that order was filed, or

by Monday, April 15, 2014. See Pa.R.A.P. 903. Luckring’s notice of appeal,

filed August 12, 2014, is patently untimely.

      Moreover, any error committed by the trial court in entertaining

Luckring’s post-trial motions after the final order of March 14, 2014, would

be deemed harmless in light of Luckring’s untimely appeal.      Relief “is not

warranted merely because some irregularity occurred during the trial or

another trial judge would have ruled differently; the moving party must

demonstrate to the trial court that he or she has suffered prejudice from the

mistake.”     Rettger v. UPMC Shadyside, 991 A.2d 915, 924 (Pa. Super.

2010). Here, the trial court dismissed Luckring’s post-trial motions on May

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6, 2014. A timely appeal from that order would have to have been filed by

June 5, 2014. See Pa.R.A.P. 903. Again, in light of Luckring’s failure to file

a notice of appeal until August 12, 2014, she cannot demonstrate that she

was prejudiced by believing, correctly or incorrectly, that she was required

to file post-sentence motions following the trial court’s order enforcing the

settlement agreement. See Rettger, 991 A.2d at 924.

       It is well-settled that “[q]uashal is usually appropriate where the order

below was unappealable, see Toll v. Toll, 439 A.2d 712 (Pa. Super. 1981)

(court lacks jurisdiction—appeal interlocutory), the appeal was untimely, see

Stotsenburg v. Frost, 348 A.2d 418 (Pa. 1975), or the Court otherwise

lacked jurisdiction, see Pa.R.A.P. 1972.” In re C.S.M.F., 89 A.3d 670, 674

(Pa. Super. 2014) (citations modified). Therefore, because Luckring’s notice

of appeal was filed patently untimely, we lack jurisdiction to determine its

merits and must quash the appeal.3

       Appeal quashed.




____________________________________________


3
       Because we quash the appeal on the basis of Luckring’s first issue, we
will not address her remaining issues. See Luckring’s Brief at 18-34.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2015




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