J-S70029-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JEANNINE H. SCHAEFER,              :      IN THE SUPERIOR COURT OF
                                   :           PENNSYLVANIA
               Appellee            :
                                   :
          v.                       :
                                   :
MARK    FARLEY,     M.J.    FARLEY :
DEVELOPMENT     CO.,   INC.   AND :
FARLEY HOMES,                      :
                                   :
               Appellants          :      No. 1083 EDA 2015

                  Appeal from the Order March 10, 2015,
                 Court of Common Pleas, Chester County,
                      Civil Division at No. 12-09569

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 11, 2015

     Mark Farley, M.J. Farley Development Co., Inc. and Farley Homes

(collectively, “the Farley Parties”) appeal from the March 10, 2015 order

entered by the Chester County Court of Common Pleas granting the motion

to enforce the settlement agreement between the Farley Parties and

Jeannine H. Schaefer (“Schaefer”). We affirm.

     The trial court provided the following summary of the factual and

procedural background of this case:

              In 2003, [] Schaefer entered into an agreement
           with [the Farley Parties] to sell [] real property to
           [the Farley Parties]. The agreed purchase price was
           $1,462,500.00. [The Farley Parties], who intended
           to develop the property, [were] responsible for
           securing all necessary approvals, permits, etc. in
           order to obtain governmental approvals.




*Retired Senior Judge assigned to the Superior Court.
J-S70029-15


               As the years passed, [the Farley Parties] failed to
            act in furtherance of the agreement of sale.
            Specifically, [the Farley Parties] failed to proceed and
            obtain the required approvals from the Zoning
            Hearing Board and other Township authorities.

               In September[] 2012, Schaefer filed the instant
            action seeking to spur [the Farley Parties] into
            moving forward. From 2003 through the time of
            suit, Schaefer had continued to pay real estate taxes
            and upkeep costs on the property.

                In or about this time period, Schaefer had
            received an offer to purchase the property from a
            bona fide third-party purchaser for $1,362,500.00.
            [The Farley Parties] then filed a lis pendens in
            Chester County Office for the Recorder of Deeds.
            Thus, because of the agreement of sale in place, and
            a lis pendens attached to the property by [the Farley
            Parties], Schaefer was prevented from accepting that
            offer.

               The instant matter proceeded to its scheduled
            [a]rbitration on March 5, 2014. At that time, the
            parties entered into a settlement agreement to
            resolve the underlying litigation. Pursuant to the
            terms of the agreement, the settlement on the
            property was to take place no later than December
            31, 2014. [The Farley Parties were], once again,
            tasked with securing the necessary approvals. The
            settlement did not take place on December 31,
            2014.

Trial Court Opinion, 7/15/15, at 1-2.

      On February 10, 2015, Schaefer filed a motion before the trial court to

enforce the settlement agreement and to recover attorneys’ fees based upon

the Farley Parties’ failure to comply with the settlement agreement.

According to Schaefer, the Farley Parties’ “dilatory behavior has caused




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[Schafer] to incur unnecessary counsel fees in order to enforce the

[settlement agreement, including] requir[ing] counsel to conduct further

research, prepare and file [this motion] and several exhibits, as well as other

related matters.”    Motion to Enforce Settlement, 2/10/15, ¶ IV.      The trial

court granted the motion on March 10, 2015 and “further ordered that

attorneys [sic] fees incurred in enforcing the settlement are awarded upon

presentation of a fee petition.”     Trial Court Order, 3/10/15.    The Farley

Parties filed a motion for reconsideration on March 25, 2015. Therein, the

Farley Parties raised a defense of impossibility of performance because “at

this time[,] parcel numbers have not been issued,” which the Farley Parties

stated would have been raised at the “administrative conference” that was

to occur but was never scheduled. Motion for Reconsideration, 3/25/15, ¶¶

6-10.    The Farley Parties further averred that Schaefer’s motion failed to

conform to Rule 208.2 of the Pennsylvania Rules of Civil Procedure, “which

requires a motion to be divided into paragraphs numbered consecutively,” as

Schaefer’s motion was in a narrative form.       Id. ¶ 22.   The Farley Parties

appended to the motion for reconsideration preliminary objections that were

sent for filing, but for reasons unknown, were never docketed, which

likewise raised a violation of Rule 208.2.

        The trial court denied the Farley Parties’ motion for reconsideration on

April 7, 2015. The Farley Parties filed a timely notice of appeal on April 8,

2015, and complied with the trial court’s order for the filing of a concise



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statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure.

      On appeal, the Farley Parties raise one issue for our review: “Whether

the trial court erred in law by granting [Schaefer]’s [m]otion to [e]nforce

[s]ettlement and awarding attorney’s fees.” The Farley Parties’ Brief at 4.

Although phrased as a single issue in the statement of questions involved,

the Farley Parties present three separate issues in the argument section of

their brief on appeal. Compare id. at 4 with id. at 11-16.

      For their first issue on appeal, the Farley Parties argue that the trial

court erred by granting Schaefer’s motion to enforce the settlement

agreement because Schaefer failed to file a praecipe for determination

pursuant to Chester County Rule of Civil Procedure (“C.C.R.C.P.”) 206.6.

The Farley Parties’ Brief at 11. The Farley Parties contend that in order for a

party to bring a matter to the trial court for resolution, C.C.R.C.P. 206.6

requires that party to file a praecipe for determination.      Id.   The Farley

Parties assert that Schaefer’s failure to file a praecipe for determination with

her motion to enforce settlement precluded that motion from being ripe for

resolution by the trial court. Id.

      We conclude that the Farley Parties have waived their first issue on

appeal. “It is well settled that issues not raised below cannot be advanced

for the first time in a Rule 1925(b) statement or on appeal.” Irwin Union

Nat’l Bank & Trust Co. v. Famous, 4 A.3d 1099, 1104 (Pa. Super. 2010);



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see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”). The Farley Parties raise

their first issue for the first time in their Rule 1925(b) statement and did not

raise it at any time before the trial court.   Accordingly, the Farley Parties

have waived their first issue on appeal.

      For their second issue on appeal, the Farley Parties argue that the trial

court erred by granting Schaefer’s motion to enforce the settlement

agreement because the motion was not divided into consecutively numbered

paragraphs as required by Rule 208.2 of the Pennsylvania Rules of Civil

Procedure. The Farley Parties’ Brief at 11-13. The Farley Parties contend

that Schaefer’s failure to comply with Rule 208.2 inhibited their ability to

respond to Schaefer’s motion to enforce the settlement agreement because

their “response would be disconnect[ed] and not in accordance with the

Pennsylvania Rules of Civil Procedure.” Id. at 12.

      “Interpretation and application of Pennsylvania Rules of Civil Procedure

present a question of law.” Krepps v. Snyder, 112 A.3d 1246, 1251 (Pa.

Super. 2015). Accordingly, our scope of review is plenary and our standard

of review is de novo. Id.; Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013)

Rule 208.2 of the Pennsylvania Rules of Civil Procedure states, in pertinent

part, as follows:

            (a) A motion shall




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           (1) contain a caption setting forth the name of the
           court, the number of the action, the name of the
           motion, and the name of the moving party,

           (2) be divided       into   paragraphs    numbered
           consecutively,

           (3) set forth material facts constituting grounds for
           the relief sought, specify the relief sought and
           include a proposed order,

           (4) include a certificate of service which sets forth
           the manner of service including the name of an
           attorney of record for each party that is represented
           by counsel, the party whom the attorney represents,
           a “pro se” designation for each party that is
           unrepresented, and the address at which service was
           made, and

           (5) be signed and endorsed.

Pa.R.C.P. 208.2(a) (emphasis added).

     Rule 126 further provides that

           [t]he rules shall be liberally construed to secure the
           just, speedy and inexpensive determination of every
           action or proceeding to which they are applicable.
           The court at every stage of any such action or
           proceeding may disregard any error or defect of
           procedure which does not affect the substantial
           rights of the parties.

Pa.R.C.P. 126. In Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113

A.3d 1261 (Pa. Super. 2015), our Court provided the following explanation

of Rule 126:

               Under the doctrine of substantial compliance, the
           trial court may “overlook any procedural defect that
           does not prejudice a party’s rights.” Womer v.
           Hilliker, 908 A.2d 269, 276 (Pa. 2006) [].



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           “[P]rocedural rules are not ends in themselves, and
           … rigid application of [the Rules] does not always
           serve the interest of fairness and justice.” Id.

                               *     *     *

               Rule 126 allows an equitable exception for parties
           “who commit a misstep when attempting to do what
           any particular rule requires.” [Id.] Rule 126 does
           not excuse a party’s complete noncompliance with
           the rules, but Rule 126 “is available to a party who
           makes a substantial attempt to conform.” Id. at []
           278 (holding there was no compliance, where party
           failed to take any steps to conform with Rule 1042.3
           for filing certificate of merit); Pomerantz v.
           Goldstein, [] 387 A.2d 1280, 1281 ([Pa.] 1978)
           (holding appellant substantially complied with Rule
           1038(d) for filing exceptions, although pleading was
           erroneously titled motion for new trial, and appellee
           suffered no prejudice when trial court considered
           appellant’s pleading).

Id. at 1272-73.

     We conclude that the trial court did not err by granting the motion to

enforce the settlement agreement despite Schaefer’s failure to fully comply

with Rule 208.2(a).     First, the certified record reflects that Schaefer

substantially complied with Rule 208.2(a). Schaefer’s motion to enforce the

settlement agreement contains a caption setting forth the name of the court,

the number of the action, the name of the motion, and the name of the

moving party. See Motion to Enforce Settlement, 2/10/15, at 1; Pa.R.C.P.

208.2(a)(1).   The motion also details the material facts constituting the

grounds for the relief sought and specifies the relief sought. See Motion to

Enforce Settlement, 2/10/15, at 1-3; Pa.R.C.P. 208.2(a)(3).         The motion



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includes a certificate of service that sets forth the manner of service, which

provides the name of an attorney of record for each party that is

represented by counsel, the party whom the attorney represents, and the

address at which service was made.        See Motion to Enforce Settlement,

2/10/15; Pa.R.C.P. 208.2(a)(4). Finally, the motion is signed and endorsed.

See Motion to Enforce Settlement, 2/10/15, at 6; Pa.R.C.P. 208.2(a)(5).

      Second, upon reviewing Schaefer’s motion to enforce the settlement

agreement, we fail to see how the non-compliant motion prevented the

Farley Parties from responding or how it prejudiced them in any manner.

The motion provided the Farley Parties with the information necessary to

formulate a response.    The motion clearly and unambiguously states that

Schaefer was seeking to enforce the settlement agreement as well as

attorney’s fees, and the basis for the relief requested. Therefore, the Farley

Parties’ allegation that Schaefer’s failure to fully comply with Rule 208.2

prevented them from responding in any fashion represents little more than a

bald and unsupported allegation of prejudice.            Accordingly, the Farley

Parties’ second issue does not entitle them to relief.

      For their third issue on appeal, the Farley Parties argue that the trial

court erred by awarding Schaefer attorney’s fees upon the presentation of a

fee petition. The Farley Parties’ Brief at 13-16. The Farley Parties contend

that there is no provision in the settlement agreement that provides for

attorney’s fees and regardless, they assert that they complied with the



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terms of the settlement agreement. Id. at 13-14. Additionally, the Farley

Parties claim that the trial court erred in awarding attorney’s fees because

the trial court did not make a specific finding of objectionable conduct as it

was required to do under Pennsylvania law.        Id. at 15.   Furthermore, the

Farley Parties argue that a court cannot award attorney’s fees for conduct

that occurred prior to the pendency of a matter. Id. at 16.

      We conclude that the Farley Parties have waived their third issue on

appeal. Like their first issue, the Farley Parties failed to raise this claim of

error before the trial court and raised the issue for the first time in their Rule

1925(b) statement. Accordingly, we conclude that the Farley Parties’ third

issue is waived. See Famous, 4 A.3d at 1104; see also Pa.R.A.P. 302(a).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2015




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