J-A19007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN FIRELY AND HOLLY FIRELY,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellees

                       v.

RALPH B. WARNER, IV, DANIEL
GLENNON AND ROBERT SEVILLE,
TRUSTEES FOR ADAM WARNER,

                            Appellants              No. 3415 EDA 2016


             Appeal from the Judgment Entered December 9, 2016
             In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 09-32019


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 26, 2017

       Appellants, Ralph B. Warner, Daniel Glennon and Robert Seville,

Trustees for Adam Warner, appeal from the judgment entered on December

9, 2016, against Appellants and in favor of Appellees, John Firely and Holly

Firely, in the amount of $70,000.00.1 After careful review, we affirm.

____________________________________________


1 Appellants purport to appeal from the October 3, 2016 order denying their
post-trial motion. Ordinarily, an appeal properly lies from the entry of
judgment, not from the order denying post-trial motions. See Johnston
the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super.
1995). Nevertheless, a final judgment entered during pendency of an
appeal is sufficient to perfect appellate jurisdiction.  Drum v. Shaull
Equipment and Supply, Co., 787 A.2d 1050, 1052 n.1 (Pa. Super. 2001).
Here, Appellants filed a notice of appeal prematurely on October 25, 2016,
prior to the entry of judgment. However, the record reflects that judgment
was entered on December 9, 2016. In accordance with the Pennsylvania
Rules of Appellate Procedure, we treat Appellants’ notice of appeal as if it
(Footnote Continued Next Page)
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      The trial court provided the following summary of the relevant facts

and procedural history of this case in its Pa.R.A.P. 1925(a) opinion:

      [O]n November 7, 2008, [Appellees] offered to purchase the
      subject property from the above-captioned [Appellants], for the
      purchase price of $700,000.00.        In furtherance thereof,
      [Appellees] placed $70,000[.00] in escrow as a deposit. Both
      parties were represented by realtors.

           On December 3, 2008, [Appellees] signed the Agreement
      of Sale [(“Agreement”)]; [Appellants] executed the same on
      December 9, 2008.

             On December 13, 2008, [Appellees] initiated and executed
      the Agreement with the addenda, and forwarded, via e-mail, a
      fully executed copy of the Agreement to [Appellees’] realtor that
      same day. The Agreement … at issue is a standard agreement
      of sale for real estate, approved and recommended by the
      Pennsylvania Association of Realtors.

            The aforementioned Agreement required a fifteen (15) day
      water and sewer inspection contingency period. The “start date”
      for inspections began on December 14, 2008. At trial, the
      parties disputed how to calculate the fifteen (15) days from that
      date.

           [Appellees’] contractor inspected the well and septic
      systems and indicated that the septic system was unsatisfactory,
      and that the well water did not meet established portability
      standards.

             Therefore, on December 29, 2008, [Appellees’] realtor,
      Kristin Smith [(“Ms. Smith”)], e-mailed [Appellants’] realtor,
      Thomas McCabe [(“Mr. McCabe”)], and indicated that neither the
      well nor the septic systems passed inspection, and that
      [Appellees] were not willing to go forward with the purchase
      unless [Appellants] were willing to negotiate the septic issue.


(Footnote Continued) _______________________

were filed after the entry of judgment and on the date thereof. See
Pa.R.A.P. 905(a)(5). Hence, the instant appeal is properly before this Court.



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J-A19007-17


           On January 2, 2009, [Mr. McCabe] e-mailed [Ms. Smith]
     and indicated that [Appellants] were not willing to repair the
     septic system. On January 6, 2009, [Appellees] signed a Notice
     of Termination of Agreement of Sale and Agreement of Sale
     Release and Distribution of Deposit Money.        At that point,
     [Appellants] did not sign the release. Instead[,] the parties’
     realtors continued to negotiate up until February 4, 2009, in an
     attempt to purchase the subject property.

           Ultimately, the parties failed to come to an agreement, and
     [Appellees] did not purchase the property. [Appellants] refused
     to return [Appellees’] deposit monies.

          On October 15, 2009, [Appellees] filed suit against
     [Appellants,] seeking back their $70,000.00 deposit under the
     Agreement.

           On December 21, 2009, [Appellants] filed an answer, new
     matter[,] and counterclaim to [Appellees’] complaint.       The
     counterclaim sought a declaratory judgment that [Appellees]
     breached the agreement and were in default (count I); specific
     performance to retain the deposit monies under the agreement
     (count II); mitigated damages on the sale to the third party
     (count III); and, incidental and consequential damages caused
     by the property being vacant when the deal terminated (count
     IV). The trial court precluded [Appellants] from pursing [sic]
     count IV for incidental and consequential damages at trial.

           In May of 2013, [Appellants] sold their property for
     $425,000.00[,] to a third party. In the interim, [Appellants] had
     negotiated with several other potential buyers, and had entered
     into several agreements of sale, which never came to fruition.
     [Appellants] also leased the property for a portion of time prior
     to sale.

           On September 29, 2016, after a bench trial on the matter,
     the trial court found in favor of [Appellees] and against
     [Appellants], and awarded [Appellees] their $70,000.00 deposit
     back. With reference to [Appellants’] counterclaim, the trial
     court found against [Appellants].

          On November 28, 2016, the trial court denied [Appellants’]
     motion for post-trial relief.




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J-A19007-17



Trial Court Opinion (“TCO”), 1/24/17, at 1-3 (citations to record and

unnecessary capitalization omitted).

      On October 25, 2016, Appellants filed a timely notice of appeal,

followed by a timely, court-ordered Rule 1925(b) concise statement of errors

complained of on appeal.    Appellants present the following issues for our

review:

      A. Whether Appellants’ [c]oncise [s]tatement of [e]rrors
         [c]omplained of on [a]ppeal [c]omplies with Pa.R.A.P.
         1925(b) in order to permit this appeal?

      B. Whether the trial court erred as a matter of law and/or
         abused its discretion when its determination is not supported
         by competent evidence in the record?

Appellants’ Brief at 4.

      To begin, we must determine whether Appellants’ Rule 1925(b)

statement complies with the Pennsylvania Rules of Appellate Procedure.

            Whenever a trial court orders an appellant to file a concise
      statement of matters complained of on appeal pursuant to Rule
      1925(b), the appellant must comply in a timely matter.
      Commonwealth v. Castillo, … 888 A.2d 775, 780 (Pa. 2005);
      see also Lineberger v. Wyeth, 894 A.2d 141, 148 n.4 (Pa.
      Super. 2006) (noting that principles surrounding application of
      Rule 1925(b) enunciated in criminal cases apply equally to civil
      cases). Failure to comply with a Rule 1925(b) order will result in
      waiver of all issues raised on appeal. Castillo, … 888 A.2d at
      780; Lineberger, supra at 148. Furthermore, any issue not
      raised in an appellant’s Rule 1925(b) statement will be deemed
      waived for purposes of appellate review. Lineberger, supra at
      148.

                                    ***
            [T]his Court has also addressed the issue of Rule 1925(b)
      statements that are vague and/or overly broad.         We have
      consistently held that a Rule 1925(b) statement is not in


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J-A19007-17


     compliance with the Rules of Appellate Procedure if it is so vague
     and broad that it does not identify the specific questions raised
     on appeal. See, e.g., Wells v. Cendant Mobility Financial
     Corp., 913 A.2d 929, 932-34 (Pa. Super. 2006); Lineberger,
     supra at 148-49.

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007)

(emphasis added in original).

     Here, the trial court requests that this appeal “be quashed as a

violation of [Rule] 1925(b)(4)(ii),” based on its contention that Appellants’

Rule 1925(b) statement contains only generic allegations of error and in no

way specifies how the trial court erred. TCO at 4. We agree that the errors

set forth in Appellants’ Rule 1925(b) statement are vague. However, before

we conclude that this appeal should be quashed, we must examine the

record to determine whether the trial court provided a basis for its ruling.

This Court has previously stated,

     unless one knows the basis for a court’s order, there is no way
     to specifically challenge its rationale….

     When one seeking to appeal has no basis in the record to discern
     the basis for the order being challenged, Pa.R.A.P. 1925(b) must
     not be employed as a trap to defeat appellate review, requiring
     specifically stated challenges to the resolution of issues before
     there has been any revelation as to how the issues have been
     resolved.

Hess, 925 A.2d at 804 (quoting Ryan v. Johnson, 564 A.2d 1237, 1239

(Pa. 1989)).

     As we elaborated in Hess,

     [w]hen the reasons for a trial court’s ruling are vague or not
     discernable from the record, then an appellant may be forced to
     file a vague Rule 1925(b) statement, and it would be unjust to
     consider such filing a violation of the Rule…. [U]nder these

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J-A19007-17


      limited circumstances … it is not appropriate to find waiver or to
      dismiss the appeal based on a vague Rule 1925(b) statement.

Id. (emphasis added in original and internal citations omitted).

      After careful review of the record, we discern that the trial court failed

to provide any rationale for its decision.   Neither the record nor the order

itself is informative in this regard, and the court did not file a memorandum

in support of its decision. Accordingly, we conclude that the issues raised by

Appellants on appeal are not waived for failure to file a sufficiently specific

Rule 1925(b) statement.     Moreover, the trial court’s Rule 1925(a) opinion

provides a detailed explanation of its rationale for the ruling which is the

subject of this appeal. Thus, our ability to conduct meaningful and effective

appellate review is not impeded. We now turn to the merits of this appeal.

      It has been well established that:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, where the issue … concerns a
      question of law, our scope of review is plenary.

      The trial court’s conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court’s duty to determine if the trial court correctly
      applied the law to the facts of the case.

Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.

Super. 2007) (internal citations and quotation marks omitted).


                                     -6-
J-A19007-17



       Appellants claim that the trial court’s ruling in favor of Appellees is not

supported by competent evidence in the record.             Specifically, Appellants

allege that Appellees failed to timely exercise their right to terminate the

Agreement within the allotted contingency period and, therefore, were

required to purchase the Property from Appellants in accordance with the

terms of the Agreement.         In the alternative, Appellants argue that even if

Appellees’ alleged notice of intent to terminate the Agreement is deemed

timely, the notice was not in the proper format. Hence, Appellants conclude

that Appellees would still be bound to complete the sale as provided by the

terms of the Agreement.        See Appellants’ Brief at 18, 22.

       In order to address Appellants’ claim, we first examine the relevant

portions of the underlying Agreement.            The contract clearly reflects that

Appellees elected a fifteen (15) day contingency period to allow for property,

water, and sewer inspections. See Agreement, 12/13/08, at 4-6 ¶¶ 11-15.2

These contingencies are governed by “Option 1” under Paragraph 10 of the

Agreement, which further provides:

       10. Inspection Contingency Options

       The inspection contingencies elected by Buyer in Paragraphs 11-
       15 are controlled by the Options set forth below. The time
       periods stated in those options will apply to all inspection
____________________________________________


2 Paragraphs 11 through 15 of the Agreement expressly provide that each
elected contingency period is fifteen (15) days from the execution date, if
not otherwise specified.      No alternative time frame for the elected
contingencies was specified in the contract by the parties. Id.




                                           -7-
J-A19007-17


     contingencies in paragraphs 11-15 unless otherwise stated by
     this Agreement.

     Option 1. Within the Contingency Period as stated in Paragraphs
     11-15, Buyer will:

        1. Accept the Property with the information stated in
           the report(s) and agree to the Release and/or
           Releases in Paragraph 27 of this Agreement, OR

        2. If Buyer is not satisfied with the information stated
           in the report(s), terminate this Agreement by written
           notice to the Seller, with all deposit monies returned
           to the Buyer according to the terms of paragraph 20
           of this Agreement, OR

        3. Enter into a mutually acceptable written agreement
           with   Seller    providing for   any    repairs or
           improvements to the Property and/or any credit to
           Buyer at settlement, as acceptable to the mortgage
           lender(s), if any.

           If Buyer and Seller do not reach a written agreement
           during the specified Contingency Period, and Buyer
           does not terminate this Agreement by written notice
           to Seller within that time, Buyer will accept the
           Property and agree to the RELEASE in paragraph 27
           of this Agreement.

Id. at 4 ¶10.

     In addition, paragraph 5 of the Agreement states, in relevant part:

     5. DATES/TIMES OF THE ESSENCE

           (A) The settlement date and all other dates and
           times referred to for the performance of any of the
           obligations of this Agreement are of the essence and
           are binding.

           (B) For purposes of this Agreement, the number of
           days will be counted from the date of execution,
           excluding the day this Agreement was executed and
           including the last day of the time period.    The
           Execution Date of this Agreement is the date when
           Buyer and Seller have indicated full acceptance of


                                   -8-
J-A19007-17


               this Agreement by signing and/or initialing it. All
               changes to this Agreement should be initialed and
               dated.

Id. at 2 ¶5.

      Additionally, paragraph 29 of the Agreement grants Appellants the

option to retain the $70,000.00 deposit in escrow, in the event that

Appellees breach any terms or conditions of the contract. See id. at 9 ¶29.

In accordance with paragraph 30, all deposit monies must be returned to

Appellees in the event that Appellees terminate the Agreement pursuant to

any right granted therein, and the Agreement will be void. Id. at ¶30.

      In the instant matter, the trial court determined that the evidence

produced at trial established Appellees were entitled to the return of their

$70,000.00 deposit, pursuant to paragraph 30 of the Agreement.            After

careful review, we discern sufficient evidence in the record to support the

court’s findings.

      First, the trial court explained:

            Under the Agreement, [Appellees] had fifteen (15) days
      from the date of the contract execution to accept the information
      in the inspections and proceed with the sale or to obtain a
      written agreement from the [Appellants] to provide for any
      necessary repairs/credit at settlement.      If neither of these
      events occurred during the fifteen (15) day period, then
      [Appellees] accepted the property and could not recoup the
      deposit.

           The evidence showed that [Appellees] initialed the last
      changes to the Agreement and forwarded the same to
      [Appellants’] agent, [Mr.] McCabe, on December 13, 2008.

             On December 15, 2008, [Appellants’] agent, [Mr.] McCabe,
      sent an e-mail to [Appellant, Mr. Warner,] stating, “[t]he
      finalized contract was received by e-mail on Saturday[,]

                                      -9-
J-A19007-17


       December 13, 2008. The start date for all buyer property
       inspections is December 14, 2008.[”] [Appellees’] agent,
       [Ms.] Smith, testified at trial that based on this e-mail, she
       believed [Appellees] had from the day after the 14th,
       December 15, 2008, through December 29, 2008, to
       provide notice on the inspections.[3]

             Moreover, in an e-mail dated January 2, 2009, from
       [Appellant, Mr. Warner,] to [Mr.] McCabe, [Mr.] Warner, too,
       acknowledged that the last day for termination was December
       29, 2008. [Mr.] Warner wrote, “Please notify the buyers we will
       not remediate the septic system issues or any other issues. The
       sales price and contingency concessions we have already made
       were to allow for these types of issues. As you wrote, the buyer
       should not be able to terminate the agreement of sale at this
       time based on inspections since the deadline for termination
       based on inspections (Dec 29) has passed. We do not plan
       on re-inspecting the septic system.”

TCO at 7-8 (citations to the record omitted) (emphasis added).

       In reaching its decision, the trial court relied on Appellees’ expert

report, as well as the testimony of Appellees and their realtor, Ms. Smith.

Id. at 6. The court also indicated that it was not persuaded by Mr. McCabe’s

testimony, and that it found much of Mr. Warner’s testimony to be

irrelevant. Id. It is well-established that:

       In a non-jury trial, the factfinder is free to believe all, part, or
       none of the evidence, and the Superior Court will not disturb the
       trial court’s credibility determinations. Assessments of credibility
       and conflicts in evidence are for the trial court to resolve; this
       Court is not permitted to reexamine the weight and credibility
____________________________________________


3 On redirect examination, Ms. Smith stated that she often uses the terms
“start date” and “execution date” interchangeably. She further revealed that
when Mr. McCabe stated by email that the “start date was December 14 th,”
she considered that to be a revised execution date. See N.T. Trial, 9/29/16,
at 83-84.



                                          - 10 -
J-A19007-17


     determinations or substitute our judgments for those of the
     factfinder.   The test is not whether this Court would have
     reached the same result on the evidence presented, but rather,
     after due consideration of the evidence the trial court found
     credible, whether the trial court could have reasonably reached
     its conclusion.

Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916 (Pa. Super.

2017).

     The following portion of the report issued by Appellees’ expert, Ellen B.

Renish, was reproduced by the trial court in support of its finding that

Appellees provided timely notice of termination, in accordance with the

Agreement:

           The date of December 14, 2008, was indicated as the
     execution of the Agreement…. This would provide the start date
     of inspection and reply period as December 15, 2008, through
     December 29, 2008 by [Appellees] to [Appellant]. This would
     indicate that [Appellees,] through their agent[, Ms. Smith,]
     responded timely to the inspections and indicated that they
     would be terminating in the event [Appellants] were not willing
     to negotiate the septic repairs/replacement.

          [Appellants’] Agent[, Mr. McCabe,] did not respond to
     this request from [Appellees’] Agent until January 6,
     2009. Their response indicated that they would not negotiate
     on the cost of repairs to the septic system and that they
     accepted a purchase price lower than the list price with the
     thought that repairs would be the responsibility of [Appellees].

           The termination of the Agreement … was provided by
     [Appellees’] Agent on December 29, 2008 by email[;] however,
     this was not acknowledged by [Appellants] or [Appellants’]
     Agent. Subsequent to this email response, an additional written
     termination dated January 6, 2009, and signed by [Appellees]
     was provided to [Appellants’] Agent confirming the previous
     email termination.

           [Appellants] did not attempt to negotiate repairs as
     requested by [Appellees] after receiving the reply to the
     inspection and notification that the septic system had failed. All

                                   - 11 -
J-A19007-17


      correspondence concerning the terms of the Agreement
      were being conveyed by the Agents of each party
      ([Appellants]     and     [Appellees])   throughout   this
      transaction. This is evidenced by emails between the
      Agents for the parties. It also appears that all changes
      that were made to the Agreement … did not receive
      initials by all parties, but emails between the Agents for
      the respective parties were being conveyed on their
      behalf. It appears that the response time for [Appellants]
      to [Appellees] was often disregarded. It is unknown if
      the Trust made up of multiple individuals was unable to
      respond as proscribed by the Agreement … and this
      practice was then followed throughout the course of this
      transaction.

      It is clear that both parties[’] Agents had some difference
      in determining the appropriate date[s] for notification and
      communication. I believe [Appellees] did notify their
      Agent timely to respond after inspections were
      completed. It also appears that [Appellants] may not
      have been notified by their Agent timely and that may
      have been due to the nature of having to communicate
      with multiple sellers.

TCO at 8-9 (emphasis added by trial court).

      After emphasizing the parties’ timeliness, or lack thereof regarding

their dealings with each other, supra, the court expressed that it was

“unwilling to impose a hyper-technical interpretation on the parties’

Agreement, after the fact, where the parties themselves failed to strictly

abide by the contract terms during the process.”      Id. at 9 (emphasis

added by trial court). Our courts have held that even where an agreement

of sale makes time of the essence, this provision may be waived by conduct

of the parties.   See DiGiuseppe v. DiGiuseppe, 96 A.2d 874, 875 (Pa.

1953) (citing Cohn v. Weiss, 51 A.2d 740, 742 (Pa. 1947)); see also




                                   - 12 -
J-A19007-17



Davis v. Northridge Development Associates, 622 A.2d 381, 386 (Pa.

Super. 1993).

      Moreover, the trial court rejected Appellants’ claim that Ms. Smith’s

December 29, 2008 email, stating that Appellees no longer wished to

proceed with the sale unless Appellants were willing to negotiate on the

septic system issue, was invalid due to improper format.

      [Appellants] failed to provide any support for this argument
      other than [Mr.] McCabe’s conclusory statement. The court was
      not directed to any language in the Agreement indicating that a
      buyer must terminate with a specific form, nor did either expert
      indicate that notice of termination had to be in a specific format.

TCO at 9 (citations to record omitted).

      Finally, regarding Appellants’ Counterclaim, the trial court found in

favor of Appellees, stating that Appellants had “simply failed to meet their

burden of proof to establish that any loss on the ultimate sales price was

attributable to [Appellees].” TCO at 9. The court elaborated:

      The testimony was clear that the housing market took a sharp
      downturn in 2008 after the Agreement at issue terminated, a
      situation obviously out of [Appellees’] control. Also, after the
      termination, [Appellants] placed the house back on the market
      for a substantially higher price than they had accepted from
      [Appellees]. Finally, the Sellers had numerous deals fall through
      regarding the property at issue for some time post-termination.
      [Appellees] could not be held responsible for any losses from
      situations of which they played no role.

Id. at 9-10 (citations to record omitted).   The trial court’s finding is well-

supported by the record.




                                    - 13 -
J-A19007-17



     Based on the foregoing, we discern no error of law by the trial court.

Accordingly, we affirm the judgment entered in favor of Appellees.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2017




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