J-A22044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANNETTE MAIONE, INDIVIDUALLY AND                   IN THE SUPERIOR COURT
    AS ADMINISTRATOR OF THE ESTATE OF                            OF
    MARK WILLET,                                            PENNSYLVANIA

                             Appellant

                        v.

    GREENWAY CENTER, INC., AS
    SUCCESSOR IN INTEREST TO WINCO
    ACQUISITION, INC.,

                             Appellee                     No. 3381 EDA 2016


            Appeal from the Judgment Entered September 22, 2016
               in the Court of Common Pleas of Monroe County
                      Civil Division at No.: 4776 Civil 1999


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED OCTOBER 31, 2017

        Appellant, Annette Maione, appeals from the final judgment entered on

September 22, 2016, following a non-jury trial. Specifically, she argues that

the trial court erred in three interlocutory orders dated October 9, 2002, March

3, 2011, and April 2, 2015, when it did not permit her to amend the name of

the defendant in her complaint.          Because Appellant failed to file post-trial

motions following the entry of the court’s decision in this non-jury trial, we

conclude that she waived her issue and quash her appeal.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       This case has a decades-long, tortured procedural history. Thus we only

set forth the relevant history, which we have taken from our review of the

certified record and the trial court’s October 9, 2002, March 3, 2011, April 2,

2015, and July 18, 2016 opinions.

       The case arose when [Appellant’s] decedent, Mark Willet, died on
       June 24, 1997[,] while a patient at Greenway Center, a drug and
       alcohol treatment facility in Henryville, Pennsylvania. [Appellant]
       filed a praecipe to issue [a] writ of summons against Greenway
       Center, Inc. [] on June 23, 1999, the day before the statute of
       limitations expired.[1]

(Trial Court Opinion, 4/02/15, at 1).

       After discovering that Winco Acquisition, Inc. d/b/a Greenway Center

was the entity operating Greenway Center at the time of Willet’s death,

“[Appellant] filed a [m]otion to correct the name of the [d]efendant in this

proceeding to either Winco Acquisition, Inc. d/b/a Greenway Center or

Greenway Center Inc. as successor in interest to Winco Acquisition, Inc.”

(Trial Ct. Op., 10/09/02, at 3-4 (internal quotation marks omitted); see

Motion to Correct, 6/03/02, at unnumbered page 3; Trial Ct. Op. 4/02/15, at

1). The trial court held an evidentiary hearing on September 17, 2002, after

which it granted Appellant’s motion and amended the caption to name as



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1 “A separate action was commenced [] against Winco Acquisition, Inc. d/b/a
Greenway Center on July 24, 2000. Since that proceeding was initiated
following the expiration of the [s]tatute of [l]imitations, [the trial c]ourt
granted summary judgment to Winco Acquisition, Inc. d/b/a Greenway Center
on December 31, 2001.” (Trial Court Opinion, 10/09/02, at 3).


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defendant “Greenway Center, Inc. as successor in interest to Winco

Acquisition, Inc.” (Order, 10/09/02) (unnecessary capitalization omitted).

       On October 12, 2010, Appellant filed a motion to correct name of

defendant pursuant to Pa.R.C.P. 1033, claiming that “the correct party was

identified, but merely given the wrong designation in the complaint.” (Motion

to Correct, 10/12/10, at unnumbered page 4).2 The court denied Appellant’s

motion, explaining that, “under the law of the case doctrine and the

‘coordinate jurisdiction’ rule, [it] declined to revise the prior ruling of another

judge of [that] court.” (Trial Ct. Op., 3/03/11, at 4).

       On October 31, 2014, Appellant filed a petition for leave to amend the

caption or, in the alternative, permission to file an interlocutory appeal nunc

pro tunc. (See Trial Ct. Op., 4/02/15, at 3). On April 2, 2015, the trial court

denied Appellant’s petition, reasoning that

              . . . two judges in this court have already addressed the
       issue of replacing Greenway Center, Inc. as the defendant with a
       different defendant, Winco Acquisitions, Inc. d/b/a Greenway
       Center. [Appellant’s] motion before Judge O’Brien requested
       either that the defendant’s name be changed to “Greenway
       Center Inc. as successor in interest to Winco Acquisition, Inc.” or
       “Winco Acquisition, Inc. d/b/a Greenway Center.” Judge O’Brien
       changed it to the former, implicitly declining to allow [Appellant]
       to bring Winco Acquisiton, Inc. d/b/a Greenwood Center into the


____________________________________________


2 Specifically, Appellant claimed that since the federal district court and
appeals court found that Greenway Center, Inc. was not successor in interest
to Winco Acquisitions, Inc., the caption reflected an inaccurate description of
the defendant’s identity. (See Motion to Correct, 10/12/10, at unnumbered
page 4).


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J-A22044-17


       case as a new defendant after the statute of limitations had
       expired.

(Id. at 4).

       “This case was scheduled for a non-jury trial on June 2, 2016.

[Appellant] and her counsel appeared for trial but no representative of

Greenway appeared. . . . The court entered a default judgment as to liability

against Greenway . . . [and] proceeded on the question of damages.” (Trial

Ct. Op., 7/18/16, at 2-3).        On July 18, 2016, the court filed its decision,

awarding damages in the amount of $3,610,609. (See id. at 6). Appellant

filed no motions, either post-trial or for reconsideration, following the court’s

decision.

       On September 22, 2016, the court entered final judgment, including

delay damages, in favor of Appellant and against Greenway Center, Inc., as

successor in interest to Winco Acquisition, Inc. Appellant timely appealed.3

       On December 19, 2016, this Court issued a per curiam order requiring

Appellant to show cause why her appeal should not be dismissed because of

____________________________________________


3 Appellant filed her first notice of appeal on August 10, 2016, prior to the
entry of final judgment. Pursuant to the trial court’s order, Appellant filed her
concise statement of errors complained of on appeal on September 6, 2016.
See Pa.R.A.P. 1925(b). The court entered its opinion on September 9, 2016,
noting that final judgment had not been entered. See Pa.R.A.P. 1925(a).
Appellant filed a praecipe for entry of judgment on September 22, 2016, which
the court entered on that date. Appellant then filed a second notice of appeal
on October 24, 2016. Pursuant to the court’s order, Appellant filed a second
concise statement of errors complained of on appeal on November 28, 2016.
The court entered a statement on December 5, 2016, in which it noted that
Appellant’s issues were substantially the same and therefore it relied on its
September 9, 2016 opinion.


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J-A22044-17



her failure to file post-trial motions pursuant to Pennsylvania Rule of Civil

Procedure 227.1. Appellant responded on December 29, 2016.

      Rule 227.1 provides in pertinent part:

      (a) After trial and upon the written Motion for Post-Trial Relief filed
      by any party, the court may

         (1) order a new trial as to all or any of the issues; or

         (2) direct the entry of judgment in favor of any party; or

         (3) remove a nonsuit; or

         (4) affirm, modify or change the decision; or

         (5) enter any other appropriate order.

                                   *    *    *

      (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.

                                   *    *    *

Pa.R.C.P. 227.1(a), (c). Thus, pursuant to the rule, to obtain post-trial relief,

a party must file post-trial motions within ten days after the filing of the

decision following a non-jury trial. See id. at (c). Accordingly, if, as she now

seeks, Appellant wanted to amend the name of the defendant against whom

the trial court entered judgment, she was required to file post-trial motions to

the July 18, 2016 opinion and order, which was the “the decision in the case

of a trial without a jury.” Id. at (c)(2).




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J-A22044-17



      “Pa.R.Civ.P. 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, Inc. v. L.B.

Foster Co., 710 A.2d 54, 54 (Pa. 1998) (per curiam) (citations omitted).

      The importance of filing post-trial motions cannot be
      overemphasized. [T]his is not blind insistance [sic] on a mere
      technicality since post-trial motions serve an important function
      in adjudicatory process in that they afford the trial court in the
      first instance the opportunity to correct asserted trial error and
      also clearly and narrowly frame issues for appellate review. . . .

Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 428 (Pa.

Super. 2002) (quashing appeal where appellant failed to file post-trial motions

because no issues were preserved for appellate review) (citation and quotation

marks omitted).

      Here, Appellant argues that the name of the defendant in this matter

should be amended. However, she did not file a post-trial motion requesting

to amend the caption. In response to our rule to show cause order, Appellant

argued that she was not required to file a post-trial motion after the non-jury

trial because she had no disagreement with the default judgment or trial

court’s assessment of damages.      (See Response to Rule to Show Cause,

12/29/16, at unnumbered pages 1-2). She claimed that because “[o]btaining

a default judgment was merely a vehicle to obtain appellate review of the

interlocutory orders[,] . . . post-trial motions would have been meaningless

and unnecessary.” (Id. at unnumbered page 2; see also id. at unnumbered

page 7 (“[I]t would have been fruitless to as[k] for the relief [Appellant] is


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J-A22044-17



now seeking on appeal: correction of the caption—when various trial judges

previously denied that very request.”) (record citation omitted)).

        We are not persuaded by Appellant’s argument that her assumption it

would be fruitless to file a post-trial motion should excuse her from that

requirement. Appellant fails to cite any case law in support of her contention

that the waiver provision of Rule 227.1 does not apply to her. Accordingly,

finding that Appellant failed to file post-trial motions as required by Rule

227.1, we conclude that Appellant has waived all issues raised and quash her

appeal. See Lane Enterprises Inc., supra at 54; Diamond Reo Truck Co.,

supra at 428.

        Moreover, Appellant’s issue would not merit relief. Appellant raises one

question for our review:

               In a [w]rit of [s]ummons, [Appellant] named as the
        [d]efendant “Greenway Center, Inc.” The sheriff served the [w]rit
        upon a person who was on the payroll of Winco Acquisitions, Inc.
        at the address where “Greenway Center” was licensed by the state
        to provide drug and alcohol detoxification services. Should the
        [trial] court have permitted [Appellant] to amend her action to
        name Winco Acquisitions, Inc., d/b/a Greenway Center under the
        “right party, wrong designation” theory?

(Appellant’s Brief, at 10).4

        In her issue, Appellant challenges three of the trial court’s prior rulings.

She argues that the trial court’s October 9, 2002 ruling, following her first

motion to correct, was error, and then argues that the trial court erred when

it denied her later motions to correct in both its March 3, 2011 and April 2,
____________________________________________


4   Winco Acquisition, Inc. filed a participant brief in this matter.

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J-A22044-17



2015 orders. (See Appellant’s Brief, at 38). Appellant would not be entitled

to relief.

       Initially, we note that Appellant lacks standing to challenge the court’s

October 9, 2002 order, where it granted her request. “Except where the right

of appeal is enlarged by statute, any party who is aggrieved by an appealable

order . . . may appeal therefrom.” Pa.R.A.P. 501. “[O]nly a party who has

been aggrieved by an appealable order may appeal to this Court.”            In re

Estate of Pendergrass, 26 A.3d 1151, 1154 (Pa. Super. 2011) (citations and

footnote omitted); see also In re J.G., 984 A.2d 541, 546 (Pa. Super. 2009),

appeal denied, 991 A.2d 313 (Pa. 2010) (“Although a prevailing party may

disagree with the trial court’s legal reasoning or findings of fact, the prevailing

party’s interest is not adversely affected by the trial court’s ultimate order

because the prevailing party was meritorious in the proceedings below.”)

(citations omitted).

       Here, in her June 3, 2002 motion to amend, Appellant requested that

the trial court amend the caption and change the defendant’s name to either

“Greenway Center, Inc. as successor in interest to Winco Acquisitions, Inc.”

or “Winco Acquisitions, Inc., d/b/a Greenway Center.” (Motion to Correct,

6/03/02, at unnumbered page 3). Because the October 9, 2002 order granted

Appellant the relief she requested, we conclude that she does not have




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J-A22044-17



standing to appeal it.5 See Pendergrass, supra at 1154; In re J.G., supra

at 546.

       With respect to the March 3, 2011 and April 2, 3015 orders, Appellant

argues that the trial court “mistakenly held that the coordinate jurisdiction

rule and principles of ‘law of the case’ precluded them from granting

[Appellant] any additional relief under the ‘right party, wrong designation’

theory . . . because [the October 9, 2002 order] held that the theory applied

and entitled [Appellant] to relief.” (Appellant’s Brief, at 38; see id. at 49-51).

She contends that the October 9, 2002 ruling did not specifically deny her

request to amend the caption to read “Greenway Center, Inc., d/b/a Winco

Acquisition, Inc.” Therefore, she claims later rulings that granted that request

would not be overruling the prior decision. (See id. at 50-51). We disagree.

       Appellant’s issue concerning the trial court’s application of the law of the

case doctrine and coordinate jurisdiction rule, presents a question of law for

which our standard of review is de novo and our scope of review is plenary.




____________________________________________


5 Winco Acquisition, Inc. has also argued that because Appellant requested
the name change, she is judicially estopped from later claiming that the court
should not have changed the defendant’s name. (See Winco Brief, at 29 -
37). “Judicial estoppel is a doctrine that prohibits a party from taking a
position in a subsequent judicial proceeding that is inconsistent with the
party’s position in a prior judicial proceeding.” Marra v. Marra, 831 A.2d
1183, 1187 (Pa. Super. 2003), appeal denied, 856 A.2d 835 (Pa. 2004)
(citation omitted). Because we conclude that Appellant does not have
standing, we decline to address whether she is judicially estopped from
challenging the court’s October 9, 2002 order granting her relief.

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J-A22044-17



See Commonwealth v. Viglione, 842 A.2d 454, 464 (Pa. Super. 2004) (en

banc).

            The law of the case doctrine is comprised of three rules:

                  (1) upon remand for further proceedings, a trial
            court may not alter the resolution of a legal question
            previously decided by the appellate court in the
            matter; (2) upon a second appeal, an appellate court
            may not alter the resolution of a legal question
            previously decided by the same appellate court; and
            (3) upon transfer of a matter between trial judges of
            coordinate jurisdiction, the transferee trial court may
            not alter the resolution of a legal question previously
            decided by the transferor trial court.

      Within this doctrine lies the directive that judges sitting on the
      same court in the same case should not overrule each other’s
      decisions, otherwise known as the “coordinate jurisdiction rule.”

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 282 (Pa. Super.

2016) (citations and most quotation marks omitted); see Zane v. Friends

Hosp., 836 A.2d 25, 29 (Pa. 2003) (“an exception [to the coordinate

jurisdiction rule] is permitted where the prior holding was clearly erroneous

and would create a manifest injustice if followed.”) (citation and internal

quotation marks omitted).

      In the instant case, we conclude that the March 3, 2011 and April 2,

2015 orders do not violate the law of the case doctrine or the coordinate

jurisdiction rule. The trial court’s October 9, 2002 ruling granted Appellant’s

request and amended the caption to reflect the defendant’s name as

“Greenway Center, Inc., as successor in interest to Winco Acquisition, Inc.”

Nothing in the later decisions disturbed that ruling, and Appellant has not



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J-A22044-17



shown that the October 9, 2002 order granting her request was clearly

erroneous or would create a manifest injustice if followed. See Zane, supra

at 29; Mariner Chestnut Partners, L.P., supra at 282.          Accordingly,

Appellant’s argument based on the law of the case doctrine would not merit

relief.

          Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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