J-A09015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL HATALA, DOMINIC POLICARE                IN THE SUPERIOR COURT OF
AND THE CHILDREN'S FREE                               PENNSYLVANIA
CAMPGROUND FACILITIES FOUNDATION



                    v.

JEWISH COMMUNITY CENTER OF
SCRANTON, PENNSYLVANIA

                         Appellant                    No. 1234 MDA 2016


                Appeal from the Order Entered June 24, 2016
            In the Court of Common Pleas of Lackawanna County
                    Civil Division at No(s): 2016-CV-3738


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                               FILED AUGUST 21, 2017

      Jewish Community Center of Scranton, Pennsylvania (JCC) appeals

from the order entered June 24, 2016, in the Court of Common Pleas of

Lackawanna County regarding Michael Hatala’s, Dominic Policare’s, and The

Children’s Free Campground Facilities Foundation’s (Appellees) petition for

immediate restraining order. In this timely appeal, JCC claims the trial court

erred in: 1) addressing issues that were not contained in Appellees’

pleadings, and 2) in granting injunctive relief based upon inadequate

evidence.   Following a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm.

      The genesis of this action was the purchase of approximately 101

acres of land upon which JCC, as prior owners, had conducted summer camp
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activities.   On December 5, 2005, JCC entered into an installment sales

agreement with Michael Hatala and Dominic Policare in which the buyers

greed to pay JCC a total of $500,000.00 for approximately 101 acres of land

in Covington Township, Pennsylvania, commonly known as the “Jewish

Community Center of Scranton Day Camp.” See Appellees’ Petition for TRO,

Exhibit “A”. There was a special condition of sale that appears to have led to

the instant litigation. Specifically:

      A.    Buyers acknowledge that Seller, for many years, has
      operated a summer day camp at the subject premises. The
      Parties agree that the Seller has the right to continue to operate
      a summer day camp at the subject premises from the date of
      the execution of this Agreement of Sale, to and after the date of
      closing, until such time that Seller gives written notice to Buyers
      that Seller is permanently ceasing all day camp operations.
      After closing, Seller shall pay to Buyers the sum of One Dollar
      ($1.00) per year for the annual rental fee of the subject
      premises.

Installment Sales Agreement, 12/5/2005, at ¶ 9A.

      Additionally, Paragraph 9B gave JCC exclusive use and possession of

the premises for June, July, and August of every year, plus such time as JCC

needed to perform necessary work, inspections and maintenance as needed

both before and after the summer months listed.          Testimony from the

hearing on the instant petition indicates that Hatala expected a formal lease

to have been negotiated to replace the special terms of sale and additionally

expected JCC to leave the property within three years.          N.T. Hearing,

6/24/2016, at 17-18. Neither of those was included in the sales agreement

and neither came to pass. Accordingly, JCC has retained the exclusive use


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of the 101 acres of campground, for the camping season, for the sum of

$1.00 per year, and may do so for as long as JCC desires.

       The installment payments have all been tendered and on November 3,

2011, approximately six years after the inception of the installment sales

agreement, the deed to the property was transferred to The Children’s Free

Campground Facilities Foundation, a Pennsylvania non-profit corporation.

Michael Hatala and Dominic Policare are officers of that non-profit.

       Over the years, the relationship between the parties has been

problematic, at best. It currently appears that the two entities cannot come

to any agreement about any aspect concerning the application of Paragraph

9A without court intervention.         The initial conflict between Hatala and JCC

instantly regarded whether JCC could hold any overnight camping activities

and whether JCC could hold a birthday party on the property for its

groundskeeper.

       A hearing was held before the Honorable Margaret Bisignani-Moyle on

June 24, 2016.       Michael Hatala testified regarding the acrimonious history

between the parties, including reference to a prior lawsuit that appears to

have addressed the safety and maintenance of a bridge on the property.

Although the lawsuit was referenced, none of the documents from that

action has been made available to this Court.1           However, the trial court

____________________________________________


1
  We mention this because there is some indication that there was some
overlap of issues between the prior lawsuit and the instant one.



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J-A09015-17



believed there was some overlap in the subject matter, particularly

regarding whether The Children’s Free Campground Foundation was named

as an additional insured on the JCC policy.       Insurance was at issue in the

instant matter as being tangential to the issues of overnight stays by

campers and the use of the property for a birthday party that was not part

of any camping activity. The issue of insurance eventually led to questions

of who was responsible for the physical maintenance of the campground

property.2

       In turn, Michael Hatala’s testimony led to what might be fairly termed

as bickering between counsel for the parties and Hatala.               While this

transpired, the trial court remarked several times the “insanity” 3 of all of the

court actions.       Eventually, counsel for JCC requested the hearing go off

record. See N.T. Hearing, 6/24/2016 at 28.

       After   the    off-the-record discussion   took place,4   the   trial court

announced, “Number one, after consideration of the arguments of all the

parties and the limited testimony that’s been taken I am prepared now to

enter an order.” The trial court then entered an oral order that was later
____________________________________________


2
  The record is somewhat difficult to follow. The parties are well aware of
the history of this matter, but we are not.
3
 See N.T. Hearing, 6/24/2016 at 25, 26, and 27 (twice). Counsel for JCC
agreed the behavior between the parties was “insanity”. Id. at 27.
4
  There is no indication in the record as to the length of the off-the-record
discussion.



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memorialized in the written order instantly under appeal. That order, both

verbal and written, addressed several issues, including the two that were the

subject of Hatala’s petition for temporary restraining order. Specifically, the

order read:

       [I]t is hereby ORDERED and DECREED that [Hatala]’s request to
       prevent a plumber from having a birthday party on the camp
       premises is GRANTED. In addition, the following provisions shall
       apply:

          [JCC] shall provide [Hatala] written proof of insurance adding
           [Hatala] as an added insured.[5]

          [Hatala] shall       provide        [JCC]   with   written   proof   of
           incorporation.6

          If [Hatala] believes there is reasonable damage to the camp
           premises, [Hatala] shall notify [JCC] of the damage. [JCC]
           shall have two (2) weeks to fix the damage in accordance
           with [Hatala]’s satisfaction. If [JCC] does not repair the
           damage within two (2) weeks, [Hatala] can fix the damage
           himself and bill [JCC] for expenses incurred in the repair.
           [JCC] is not obligated to repair any property that has
           reasonable wear and tear.

          [JCC] shall provide [Hatala] keys to all of the camp buildings.

          [Hatala] is entitled to access his property, but [Hatala] cannot
           interfere with camp activities.

          [JCC] shall adequately clean the camp premises before
           [Hatala] takes possession of the property beginning on July 2,
____________________________________________


5
 We believe this specifically refers to Children’s Free Campground Facilities
Foundation, as that is the name listed on the deed as owner of the property.
6
 Again, we believe this refers to the Children’s Free Campground Facilities
Foundation.



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         2016. Conversely, [Hatala] shall adequately clean the camp
         premises before leaving the property.

        [JCC] shall be entitled to seven (7) overnight stays on the
         camp property.

        [JCC] shall provide, to this Court, a written opinion from an
         engineer attesting to the safety of the camp lake. The written
         opinion shall be issued pending the approval of a D.E.P.
         permit.

Order, 6/24/2016.

     It is significant that neither party objected to any portion of the order

as announced by the court.     Similarly, neither party voiced any concerns

that the order did not correspond with whatever discussion had taken place

off the record. In fact, several pages of the notes of testimony subsequent

to the order concern how the order would be implemented. Counsel for JCC

took part in these discussions.   See N.T. 6/24/2015 at 31-38.      The final

comments made on the record appear to sum up what had proceeded:

     The Court: I understand. All right, but according to this you
     [Hatala] have to get their [JCC] approval [for Hatala to build his
     house on the property] so you might have a judge make that
     decision. If they don’t agree, you will have to sue to see if they
     are withholding their agreement on [sic] unreasonably.

     Mr. Hatala: Okay.

     The Court: All right.

     Mr. Rothenberg [JCC Counsel]: Judge, on the payment, I just
     want to clarify on the payer issue that you dictated the order on
     so I’m clear on this –

     The Court: You are paying for the bridge.




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J-A09015-17


        Mr. Rothenberg: Okay. But if he feels there is a repair that
        should be made he gives us –

        Mr. Hatala: I’ll give it in writing.

        Mr. Rothenberg: He gives us written notice, we have two
        weeks –

        The Court: To repair it.

        Mr. Rothenberg: Do we have a right to question whether it’s
        necessary?

        The Court: I guess you could wind up in court.        You can get
        another TRO and say –

        Mr. Rothenberg: Okay.

        The Court: You know?

        Mr. Rothenberg: Okay.

        The Court: It’s a sad, sad situation. All right, so we will prepare
        an order. Even the order isn’t typed up we are going to prepare
        an order, we are going to send it out, but you are leaving the
        building under the order even though [you] don’t have it in your
        hands. Does anybody have any questions about any of your
        responsibilities?

        Mr. Hatala: No.

        Mr. Rothenberg: No ma’am.

        The Court: All right, for everyone’s sake you are all – your blood
        pressure is going to [] kill you before you get to enjoy your
        property and vice versa, this can’t be good for anybody living
        like this. Have a good day.

N.T. Hearing, 6/24/2015, at 37-38.

        For the resolution of this appeal, the most important facts to note are

that:


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J-A09015-17


       1) JCC requested the hearing go off the record, which request
       was granted;

       2) substantive issues were clearly discussed therein;

       3) as a result of the discussion, the trial court issued an order
       that touched upon issues that both were and were not
       specifically raised in Hatala’s original petition; and

       4) no objections were raised to the order and all on the record
       discussions after the order concerned how the parties would
       implement the order, including those issues that were not
       originally contained in Hatala’s petition.

       In its Pa.R.A.P. 1925(a) opinion, the trial judge noted that she

determined that all the issues she ruled upon were intertwined and ongoing.

See Trial Court Opinion, 9/27/2016, at 2.         Accordingly, the trial judge

determined that the interests of justice 7 were best served by the

comprehensive order issued. Id. The trial judge additionally noted that no

objections were raised to the proposed order, in either scope or substance.

Id. at 4.

       Our review of the certified record confirms that JCC did not object to

any aspect of the order. Because no timely objection was raised before the

trial court, the issues raised on appeal have been waived. See Pa.R.A.P.

302(a) (issues not raised before the trial court are waived); B.G. Balmer &



____________________________________________


7
  See 42 Pa.C.S. § 323 (granting courts the ability to act in the interest of
justice).




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J-A09015-17


Co., Inc. v. Frank Crystal & Company, Inc., 148 A.3d 454, 468 (Pa.

Super. 2016) (same).

       Further, it is obvious that substantive issues were discussed off the

record.   However, there has been no attempt to provide this court with a

recreation of that discussion.8, 9

       It is an appellant's duty to insure that the certified record
       contains all documents necessary for appellate review. If the
       necessary documentation is not in the certified record, this Court
       will find the issue raised on appeal waived.

Love-Diggs v. Tirath, 911 A.2d 539, 541 (Pa. Super. 2006). Accordingly,

even if the issues had been preserved properly, without access to salient



____________________________________________


8
   Counsel for JCC provided an affidavit in the Appellant’s brief stating
although there was discussion on the issue of damages, he did not agree to
pay for any damages on the property and further claims the trial court took
no testimony or evidence on the issue. However, this affidavit is not part of
the certified record. “Any document which is not part of the official certified
record is considered to be nonexistent, which deficiency may not be
remedied by inclusion in the reproduced record.” Brandon v. Ryder Truck
Rental, Inc., 34 A.3d 104, 106 (Pa. Super. 2011) (citations omitted). The
proper method of providing this court with required information in such a
situation is found at either Pa.R.A.P. 1923 (Statement in Absence of
Transcript) or Pa.R.A.P. 1924 (Agreed Statement of Record).
9
  Appellant also failed to insure that the notes of testimony from the hearing
were included in the certified record. All that was supplied was the cover
sheet and index page. No actual notes of testimony were to be found in the
certified record as delivered to this Court. We could have found all issues
waived on this basis. See Brandon v. Ryder, supra. However, we
independently obtained the notes of testimony from the Clerk of the
Lackawanna County Courts.




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J-A09015-17


information, we would have no way to conduct a review of JCC’s claims.

Therefore, the issue would be waived for that reason as well.

     Order affirmed.

     Shogan, J., joins the memorandum.

     Stabile, J., concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




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