J-A23029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH C. POSH AND DOUGLAS D.            IN THE SUPERIOR COURT OF
KELLY,                                         PENNSYLVANIA
                    Appellants

                v.

RAMI NASSAR AND SPRINGHOUSE ROAD
PARTNERSHIP, LLC AND ST. GEORGE
ANTIOCHIAN ORTHODOX CHURCH,

                     Appellees
                                           No. 37 EDA 2017



          Appeal from the Order Entered November 23, 2016
           In the Court of Common Pleas of Lehigh County
                 Civil Division at No(s): 2015-C-0097

______________________________________________________

JOSEPH C. POSH AND DOUGLAS D.            IN THE SUPERIOR COURT OF
KELLY,                                         PENNSYLVANIA

                     Appellees

                v.

RAMI NASSAR AND SPRINGHOUSE ROAD
PARTNERSHIP, LLC AND ST. GEORGE
ANTIOCHIAN ORTHODOX CHURCH

APPEAL OF ST. GEORGE ANTIOCHIAN
ORTHODOX CHURCH
                                           No. 434 EDA 2017


          Appeal from the Order Entered November 23, 2016
           In the Court of Common Pleas of Lehigh County
                 Civil Division at No(s): 2015-C-0097
J-A23029-17

BEFORE: PANELLA, DUBOW, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED NOVEMBER 30, 2017

        Appellants/Cross-Appellees, Joseph C. Posh and Douglas D. Kelly

(collectively    “Posh”),   filed   a   declaratory   judgment   action   requesting

clarification of its rights and duties concerning a tract of land adjacent to a

tract owned by Appellee/Cross-Appellant, St. George Antiochian Orthodox

Church (“Church”). Church filed a counterclaim seeking monetary damages

for Posh’s failure to provide services and improvements for Church’s tract,

which Church claimed Posh was required to do under an option agreement

incorporated by reference within Posh’s deed.             The trial court granted

Church’s motion for summary judgment on Posh’s declaratory judgment

action and dismissed the entire action, including Church’s counterclaim, with

prejudice.      Posh appealed to this Court at 37 EDA 2017.          Church cross-

appealed at 434 EDA 2017, arguing that the trial court erred by refusing to

address its counterclaim for monetary damages.

        We conclude that res judicata bars Posh’s declaratory judgment action,

because Posh’s rights and duties were determined in a prior quiet title action

between the parties.        We also agree with the trial court that the proper

setting for determining Church’s claim for money damages is post-judgment




*   Former Justice specially assigned to the Superior Court.




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proceedings in the quiet title action, not the present declaratory judgment

action. Accordingly, we affirm in both 37 EDA 2017 and 434 EDA 2017.

      There are two tracts of land at issue in this litigation: one owned by

Posh and the other owned by Church. Those tracts previously belonged to a

single tract of land totaling approximately 22.67 acres that was owned by

the Friends of St. George Orthodox Church, Inc. (“Friends”). Posh R.R., at

55a1 (Trial Ct. Order, No. 2009-C-1964, 12/30/11). Friends determined it

only needed approximately ten of those acres to build the church and related

buildings they intend to construct. Id. Rami Nassar expressed an interest

to acquire, or subdivide and arrange for others to acquire, the balance of the

property not needed by Friends for Church and related properties.           Id.

Nassar proposed that the subdivided property would include at least one

tract upon which the church and related buildings would be built (“Church

Area”), while Nassar would take the other tract for ownership, sale or further

subdivision (“Excess Area”). Id.

      In 1998, Nassar and Friends entered into an Option Agreement in to

memorialize the parties’ respective rights, responsibilities, and obligations in

relation to the two tracts. Id. at 56a. The Option Agreement stated that

Nassar “and his permitted successors and permitted assigns,” whom the

Option Agreement collectively labeled the “OPTIONEE”, were obligated to


1 Whenever possible, we refer to Posh’s and Church’s reproduced records for
the convenience of the parties.



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“provide and/or pay for all engineering and review costs for the subdivision

of the Property.” Posh R.R. 32a (“Option Agreement”).        These obligations

included “providing line drawings showing ‘foot print’ of all buildings, walks,

parking lots, roads and other improvements, utility service lines and

determination of adequate drainage sizing and to use the plans of the

architect for the Church for all design requirements.” Id.

      Section 3.2 of the Option Agreement stated that “Optionee” must

“construct and provide” access to the Church Area “at no cost nor expense

to Friends or their successors and assigns or the future owners of the Church

Area.” Id. at 33a. Section 5.2 continued:

         OPTIONEE [Nassar] or his successors or assigns [Posh]
         shall construct and provide, at no cost nor expense to
         FRIENDS or their successors and assigns or the future
         owners of the Church Area, all of the utilities necessary for
         use of the Church Area, all roadway(s) from the Church
         Area to Springhouse Road as shall be shown on any plan
         for the subdivision of the Property, and appropriate and
         adequate sized connection from the Church to and through
         the Excess Area and to any municipal or other terminal
         point for all utilities and drainage systems.

Id. at 35a-38a.

      Under the Option Agreement, the Friends’ land was subdivided into

two lots. Id. at 56a. Friends conveyed the Church Area to Church and the

Excess Area to Nassar’s limited liability company, Springhouse Road

Partnership, LLC (“Springhouse”).    Id.   To ensure the Church Area would

continue to enjoy the benefits of the Option Agreement from whomsoever




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owned the Excess Area, the deed to Springhouse (the “Springhouse Deed”)

contained the following language:

         UNDER AND SUBJECT TO the obligations upon Rami
         Nassar, his successors and assignees as set forth in [the
         Option Agreement] between GRANTOR and Rami Nassar
         (the assignee to GRANTEE) the said obligations and
         restrictions of the same agreement being incorporated
         herein by reference, and under and subject to the
         restrictions and obligations set forth on the aforesaid Plan
         of subdivision.

Id. (“Encumbrance Clause”).

       On January 9, 2006, Springhouse conveyed the Excess Area to Posh in

a deed which contained the same Encumbrance Clause language. Id. On

the same date, however, Posh entered into an Indemnification Agreement

with   Nassar    and   Springhouse   which   provided—in   conflict   with   the

Springhouse Deed and their own deed—that the obligations in the Option

Agreement were only obligations of Nassar and Springhouse but not of Posh.

Id. at 60a. In addition, the Indemnification Agreement provided that Nassar

would indemnify Posh for any claims “arising from or in any way, directly or

indirectly, associated with or the result of the obligations of Rami Nassar

and/or Springhouse Road Partnership, LLC under the Agreement dated

September 30, 1998,” i.e. the Option Agreement. Id. at 61a. Springhouse

and Nassar further agreed to try to convince Church to “remov[e] the

obligations under the [Option] Agreement . . . from the chain of title to the

Property.” Id.




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J-A23029-17

      On April 17, 2009, Posh commenced a quiet title action against

Springhouse alleging that they were “unable to determine the nature of the

obligations or restrictions required under the [Option] Agreement,” thus

creating a “cloud” which “ostensibly encumbers [Posh’s] interest in the

Subject Property . . .” Church R.R. at 65b. Posh argued that only Nassar,

as the party to the Option Agreement, and not subsequent landowners like

Posh, were obligated by any provision of the Option Agreement. Posh R.R.

at 55a-58a.

      Friends and Church intervened as defendants in the quiet title action.

Following a bench trial, the trial court found that because the Springhouse

Deed “made a clear reference to the [Option Agreement], subsequent

purchasers, including Posh [], were bound by its terms.” Id. at 57a.      The

court also recognized that the same language appeared in the Posh Deed,

thereby providing Posh with actual notice of the Option Agreement. Id. In

fact, the trial court specifically found that “Posh [] admitted to having

received a copy of the [Option Agreement] before . . . settlement, thus

giving them actual knowledge of its terms.” Id. The court summarized in

part Posh’s obligations, which are expressly set forth in detail in the Option

Agreement, to include the obligation to “provide services and improvements,

including the installation of utility services and storm-water drainage or

detention systems, to the adjoining property retained by Friends for its

church and related purposes.” Id. at 55a-56a.



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J-A23029-17

      Posh filed an appeal to this Court, which quashed the appeal due to

Posh’s failure to file post-trial motions.2 See Posh v. Springhouse Road

Partnership, LLC, 402 EDA 2012 (Pa. Super., Mar. 19, 2012) (order). Posh

did not file another appeal, and Posh admits that the decision in the quiet

title action “is the law of this case and is not at issue.” Posh’s Brief at 6.

      On January 9, 2015, Posh filed a second action seeking a declaratory

judgment.     Rather than honoring their obligations under the Option

Agreement, as the trial court found they must, Posh continued their

campaign “to determine the rights, obligations, and benefits resulting from

inclusion of the Encumbrance Clause in the Posh[] deed.” Posh R.R. at 10a.

Posh sought a declaratory judgment that:

         [o]bligations to provide personal services are not
         obligations that run with real property interests, and that
         any and all obligations to provide personal services,
         including engineering and design services, owed to
         [Church] as a result of the Option Agreement are
         obligations owed by Nassar, or Springhouse[], to [Church]
         and are not obligations owed by [Posh] to [Church]; and
         that [Posh] has no obligations to provide personal services,
         including engineering and design services, to [Church].

Id. at 10a-11a. Church filed a responsive pleading asserting, inter alia, the

defense of res judicata. Id. at 65a-76a. Church also filed a counterclaim for

monetary damages for costs and services that Posh was required to provide

under the Option Agreement. Id.

2 It also appears that Posh failed to enter judgment on the verdict before
appealing, but according to the trial court, judgment was subsequently
entered in the quiet title action. See Trial Ct. Op., 2/28/17, at 11.



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J-A23029-17

     Church moved for summary judgment on the ground that the

judgment in the prior quiet title action barred Posh’s declaratory judgment

under the doctrine of res judicata.     Church R.R. at 19b-26b, 222b-34b.

Church also moved for summary judgment on its counterclaim for monetary

damages. Id. In support of this motion, Church submitted an expert report

estimating that Posh must provide costs and services in an amount between

$1,802,580.00 and $1,892,799.00. Church R.R. at 199b-207b. Church did

not actually perform such services or pay such costs. Id.

     On November 23, 2016, the trial court ordered that “summary

judgment is granted . . . in favor of [Church] and against [Posh], and the

within matter is dismissed.”      Both Posh and Church filed timely cross-

appeals and timely Pa.R.A.P. 1925(b) statements. The trial court issued an

opinion reasoning that the res judicata doctrine barred Posh’s declaratory

judgment action.   Trial Ct. Op., 2/28/17, at 11.   With regard to Church’s

counterclaim, the court stated:

        In granting summary judgment, the [c]ourt expressly
        noted [Posh is] bound to comply with the terms of the
        Option Agreement . . . Moreover, because the [c]ourt
        struck the instant matter on the procedural grounds that
        res judicata barred [Posh] from pursuing it, any relief
        stemming to [Posh’s] noncompliance with the Option
        Agreement would be in the form of a motion seeking to
        enforce the judgment entered in the 2009 matter. The
        [c]ourt did not place the burden of completing the tasks
        set forth in the Option Agreement on [Church], and
        [Church] has not actually performed the work such that it
        would be able to advance a claim for reimbursement at
        this juncture.



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J-A23029-17

Id. 12-13.

      Posh raises a single issue in the appeal at 37 EDA 2017:

         Does the doctrine of res judicata bar the relief sought by
         [Posh] in this declaratory judgment action as a matter of
         law?

Posh’s Brief at 4.

      Church raises a single issue in its appeal at 434 EDA 2017:

         Whether the Court erred or abused its discretion when it
         denied that aspect of . . . [Church’s] Motion for Summary
         Judgment on its counterclaim requesting monetary
         damages—in the uncontested amount necessary to make
         improvements to its land—where, inter alia, (i) [Posh has]
         obdurately refused for over [ten] years to provide those
         services, despite a prior judgment already confirming their
         obligation to do so, and (ii) [Church] submitted an
         unrebutted expert report establishing the cost of making
         those improvements.

Church’s Brief at 2.

      Our review is governed by the following principles:

         [S]ummary judgment is appropriate only in those cases
         where the record clearly demonstrates that there is no
         genuine issue of material fact and that the moving party is
         entitled to judgment as a matter of law. When considering
         a motion for summary judgment, the trial court must take
         all facts of record and reasonable inferences therefrom in a
         light most favorable to the non-moving party. In so doing,
         the trial court must resolve all doubts as to the existence
         of a genuine issue of material fact against the moving
         party, and, thus, may only grant summary judgment
         where the right to such judgment is clear and free from all
         doubt. On appellate review, then,

             an appellate court may reverse a grant of summary
             judgment if there has been an error of law or an
             abuse of discretion. But the issue as to whether
             there are no genuine issues as to any material fact


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J-A23029-17


           presents a question of law, and therefore, on that
           question our standard of review is de novo. This
           means we need not defer to the determinations
           made by the lower tribunals.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citations and quotation marks omitted).

     It is well-established that

        [w]here the non-moving party bears the burden of proof
        on an issue, he may not merely rely on his pleadings or
        answers in order to survive summary judgment. Further,
        failure of a non-moving party to adduce sufficient evidence
        on an issue essential to his case and on which he bears the
        burden of proof establishes the entitlement of the moving
        party to judgment as a matter of law.

Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.) (en banc) (citation and

quotation marks omitted), appeal denied, 129 A.3d 1244 (Pa. 2015).

     “Under the doctrine of res judicata, or claim preclusion, a final

judgment on the merits by a court of competent jurisdiction will bar any

future action on the same cause of action between the parties and their

privies.” Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286

(Pa. Super. 2016) (citations and quotation marks omitted).    The “doctrine

therefore forbids further litigation on all matters which might have been

raised and decided in the former suit, as well as those which were actually

raised therein.” Id.

     In the present declaratory judgment action, Posh requested that the

trial court “determine the rights, obligations, and benefits resulting from

inclusion of the Encumbrance Clause in the Posh[] deed.” Posh R.R. at 10a.


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J-A23029-17

This is the same issue that Posh raised in the quiet title action, where Posh

alleged that they were “unable to determine the nature of the obligations or

restrictions required under the [Option] Agreement,” thus creating a “cloud”

which “ostensibly encumbers [Posh’s] interest in the Subject Property . . .

Church R.R. at 65b.     Moreover, the trial court determined the nature of

Posh’s obligations in the quiet title action; its verdict stated that Posh had

the duty to “provide services and improvements, including the installation of

utility services and storm-water drainage or detention systems, to the

adjoining property retained by Friends for its church and related purposes.”

Posh R.R. at 55a-56a.    Indeed, Posh admits that the decision in the quiet

title action “is the law of this case and is not at issue.” Posh’s Brief, at 6.

Because Posh’s duties and obligations were both raised and decided in the

quiet title action, Posh’s declaratory judgment action is nothing more than a

second action on the same matter between the same parties. The trial court

correctly decided   on this record     that res judicata    precludes Posh’s

declaratory judgment action. See Mariner Chestnut Partners, 152 A.3d

at 286.

      Turning to Church’s cross-appeal, we agree with the trial court’s

determination that the quiet title action is the proper setting to determine

the issue of Church’s damages.     In a quiet title action, the court may, in

addition to entering judgment, “enter any other order necessary for the

granting of proper relief.”   Pa.R.C.P.1066(b)(4).   In our view, this broad



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language encompasses post-judgment monetary relief necessary to enforce

the judgment. See Tioga Coal Co. v. Supermarkets General Corp., 589

A.2d 242, 244 (Pa. Super. 1989) (implicitly acknowledging that party had

right to seek money damages in quiet title action, but ultimately holding that

chancellor acted within his discretion by denying damages).

      As noted above, the trial court determined in the quiet title action that

Posh has the duty to “provide services and improvements, including the

installation of utility services and storm-water drainage or detention

systems, to the adjoining property retained by Friends for its church and

related purposes.” Posh R.R. at 55a-56a. Church may enforce its judgment

against Posh in the quiet title action by seeking the post-judgment remedies

of specific enforcement of the foregoing terms or damages necessary to

enforce the judgment. It would needlessly duplicate litigation for Church to

seek such relief in the present action instead of in the quiet title

proceedings.

Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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