J-A25009-19

                              2020 PA Super 196

JASON AND SARA ADAMS                              IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellants

                     v.

ERIE INSURANCE COMPANY, ERIE
INSURANCE EXCHANGE, AND ALEX R.
SZELES, INC. (SETTLED PARTY)

                          Appellees                   No. 954 MDA 2018


                Appeal from the Order Entered May 15, 2018
              In the Court of Common Pleas of Dauphin County
                   Civil Division at No: 2011-CV-06782-CV

BEFORE: STABILE, J., MCLAUGHLIN, J. and MUSMANNO, J.

OPINION BY STABILE, J.:                             FILED AUGUST 14, 2020

      Appellants, Jason and Sara Adams, appeal from a judgment entered in

favor of Erie Insurance Exchange in two consolidated actions (“Action I” and

“Action II”) for breach of contract and for bad faith under 42 Pa.C.S.A. § 8371.

We quash this appeal due to the lack of a final, appealable judgment in either

action.

      On June 11, 2010, Appellants’ home incurred water loss damage due to

a burst pipe while Appellants were away on vacation. At the time of the loss,

Appellants’ home was insured under a Home Protector Ultracover Insurance

Policy issued by Erie Insurance Exchange, Policy Number Q57 1409485 A (“the

Policy”). In July 2011, unhappy with the processing of their claim, Appellants

filed a lawsuit for breach of contract and bad faith against Erie Insurance

Company and contractor Alex R. Szeles, Inc. (Action I). Appellants ultimately
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settled with Szeles, leaving Erie Insurance Company as the sole defendant in

Action I.

       Defense counsel informed Appellants’ attorney that Erie Insurance

Exchange issued Appellants’ insurance policy, not Erie Insurance Company.

N.T., 1/5/17, at 483 (testimony of Appellant Jason Adams).         Thereafter,

Appellants filed a lawsuit against Erie Insurance Exchange in the same court

at a separate docket number for the same claims raised in Action I, breach of

contract and bad faith (Action II).

       On October 22, 2015, the trial court ordered Actions I and II

consolidated for discovery and trial. The consolidated actions proceeded to a

non-jury trial over several days in late 2016 and early 2017. At the conclusion

of trial, defense counsel argued that Erie Insurance Company “has nothing do

with this policy or this claim, [because] the policy was issued by the Erie

Insurance Exchange.” N.T., 1/25/17, at 995.

       On January 4, 2018, the trial court issued a memorandum rejecting

Appellants’ claims for breach of contract and bad faith. The memorandum

defined Erie Insurance Exchange as “Erie,” Memorandum, 1/4/18, Background

Fact 3, and referred to “Erie” throughout the text. The court did not mention

Erie Insurance Company in the body of the memorandum.1 Along with the

memorandum, the court issued an order stating that “based on the

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1 The memorandum referred to “Erie Insurance” twice but never “Erie
Insurance Company.”


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memorandum, the [decision] is in favor of defendant Erie on all counts.”

Order, 1/4/18. On both the memorandum and order, the captions for both

Actions I and II were typed, but the caption for Action II was crossed out by

hand, presumably by the court.

      On January 16, 2018, Appellants filed a post-trial motion listing the

captions of both Actions I and II and seeking judgment non obstante veredicto

(JNOV) in both actions. Appellants asserted that the trial court’s January 4,

2018 decision “[found] against [Appellants] as to all causes of action against

Erie Insurance Company and Erie Insurance Exchange.” Post-Trial Motions, ¶

3.

      On May 15, 2018, the trial court entered an order in Action I, but not

Action II, denying Appellants’ post-trial motions “upon consideration of

Plaintiff’s Motion for Post-Trial Relief and Defendant’s response thereto . . .”

Order, 5/5/18.     The order did not itself enter judgment or direct the

prothonotary to do so.

      On June 8, 2018, Appellants filed a notice of appeal from the May 15,

2018 order. Instead of filing two notices of appeal, one in Action I and one in

Action II, Appellants filed a single notice of appeal naming Erie Insurance

Company, Erie Insurance Exchange and Szeles as defendants and listing the

docket numbers for both Actions I and II.

      On July 27, 2018, this Court notified the parties that final judgment was

not entered on the trial court docket and ordered Appellants to file a praecipe

for entry of judgment in the trial court. On July 31, 2018, Appellants filed a

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praecipe in the trial court listing Action I’s caption but entering judgment in

favor of Erie Insurance Exchange, the defendant in Action II. Appellants did

not enter judgment in favor of Erie Insurance Company.

      Appellants raise two issues in their appellate brief:

      1. Did the Trial Court Commit an Error of Law and Abuse of
      Discretion in Finding in Favor of Defendant?

      2. Did the Trial Court Commit an Error of Law In Permitting John
      Smith to Testify as [t]o Hearsay Evidence in [t]he Erie Insurance
      Log?

Appellants’ Brief at 5.

      Before considering these issues, we must determine whether we have

jurisdiction over this appeal. “The appealability of an order directly implicates

the jurisdiction of the court asked to review the order.” Commonwealth v.

Sabula, 46 A.3d 1287, 1290 (Pa. Super. 2012). “[S]ince we lack jurisdiction

over an unappealable order it is incumbent on us to determine, sua sponte

when necessary, whether the appeal is taken from an appealable order.”

A.J.B. v. A.G.B., 180 A.3d 1263, 1270 (Pa. Super. 2018).

      Although the trial court consolidated Actions I and II for discovery and

trial, we must separately analyze each action’s appealability.        When two

actions are consolidated for purposes of discovery and trial, “complete

consolidation (or merger or fusion of actions) [still] does not occur absent a

complete identity of parties and claims; separate actions lacking such overlap

retain their separate identities and require distinct judgments; [and] these



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principles pertain equally to appealability determinations.”    Malanchuk v.

Tsimura, 137 A.3d 1283, 1288 (Pa. 2016).2 Pursuant to Malanchuk, Actions

I and II require “distinct judgment[s],” id., because the defendant in Action

I, Erie Insurance Company, is different from the defendant in Action II, Erie

Insurance Exchange. Thus, the appealability of Action I does not determine

the appealability of Action II.

       There is no final, appealable judgment in Action I as to Erie Insurance

Company, because (1) Appellants never entered judgment against Erie

Insurance Company, and (2) even more fundamentally, the court never

entered a decision as to Erie Insurance Company.        In the captions of the

January 4, 2018 memorandum and order, Action II was crossed out while

Action I remained intact. Viewed in isolation, the captions indicate that the

court decided Appellants’ claims in Action I against Erie Insurance Company.



____________________________________________


2 In Malanchuk, the plaintiff, a carpenter, fell from scaffolding and suffered
injury at a residence where he was working. He commenced a civil action
against the owner of the premises (“Case I”), and he later commenced a
separate action against another worker (“Case II”).              The trial court
consolidated the two actions for purposes of discovery, arbitration and, if
necessary, trial. After discovery, both the owner of the premises and the other
worker filed motions for summary judgment. In Case II, the court granted
the other worker’s motion in its entirety. In Case I, the court only granted
partial summary judgment to the owner, so Case I continued to move towards
trial. The plaintiff filed an appeal in Case I to this Court, and we quashed the
appeal. Our Supreme Court reversed, reasoning that complete consolidation
did not occur because the parties in Cases I and II were not identical, and
therefore the grant of summary judgment to the worker in Case I was final
and appealable. Id., 137 A.3d at 1289.


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In reality, the opposite is true. The body of the memorandum only resolved

Appellants’ claims against “defendant Erie,” which the memorandum defined

as Erie Insurance Exchange.      Similarly, the order only found in favor of

“defendant Erie,” or Erie Insurance Exchange. Absent a decision as to Erie

Insurance Company, the right to enter judgment as to Erie Insurance

Company never ripened. Slusser v. Laputka, Bayless, Ecker & Cohn, P.C.,

9 A.3d 1200, 1205-06 (Pa. Super. 2010) (praecipe to enter judgment was

premature, and judgment was not final for purposes of appeal, where certain

claims of plaintiff were still awaiting bench trial, thus the entirety of claims

had not been disposed of by nonsuit or judge’s decision).

      In Action II, there is no final, appealable judgment as to Erie Insurance

Exchange.     Although the trial court entered a decision in favor of Erie

Insurance Exchange and against Appellants, this decision was not finally

reduced to judgment.

      Pennsylvania Rule of Civil Procedure 227.4 provides that, with one

exception not relevant here,

      the prothonotary shall, upon praecipe of a party:

      (1) enter judgment upon a nonsuit by the court, the verdict of a
      jury or the decision of a judge following a trial without jury, if

            (a) no timely post-trial motion is filed; or

            (b) one or more timely post-trial motions are filed and
            the court does not enter an order disposing of all
            motions within one hundred twenty days after the
            filing of the first motion.     A judgment entered
            pursuant to this subparagraph shall be final as to all

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              parties and all issues and shall not be subject to
              reconsideration; or

       (2) enter judgment when a court grants or denies relief but does
       not itself enter judgment or order the prothonotary to do so.

Id.

       In Action II, entry of judgment was not permissible under Rule 227.4(2).

Appellants filed post-trial motions at the consolidated caption for Actions I and

II. The trial court only purported to deny Appellants post-trial relief against

Erie Insurance Company in Action I.3 The court’s order did not include Action

II’s caption or “grant[] or den[y]” Appellants’ post-trial motions as to Erie

Insurance Exchange. Id.

       Nor did any party enter a valid judgment in Action II under Rule

227.4(1)(b), which entitles a party to file a judgment praecipe when the court

fails to dispose of all timely post-trial motions within 120 days after the filing

of the first motion. On January 16, 2018, Appellants filed timely post-trial

motions in Action II,4 but the court never decided the motion in that action.

____________________________________________


3 We use the phrase “purported to deny” because the trial court lacked
authority to decide post-trial motions as to Erie Insurance Company due to its
failure to enter a decision as to Erie Insurance Company. In a non-jury case,
a party’s right to file post-trial motions (and the court’s authority to rule on
such motions) only accrues “after . . . the filing of the decision.” Pa.R.C.P.
No. 227.1(c)(2).

4 The Rules of Civil Procedure require post-trial motions to be filed within ten
days after “the filing of the decision in the case of a trial without jury.”
Pa.R.C.P. No. 227.1(c)(2). On January 4, 2018, the court entered its decision
in Action II in favor of Erie Insurance Exchange. Twelve days later, on January



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Thus, any party had the right to praecipe for entry of judgment in Action II on

or after May 17, 2018. No party took this step. Erie Insurance Exchange did

not file a praecipe despite having the right to do so. Appellants erroneously

filed a judgment praecipe against Erie Insurance Exchange in Action I, where

Erie Insurance Exchange is not a party.

       Because no final appealable judgment was entered in Action I or II, we

must quash Appellants’ appeal for lack of jurisdiction.5

       Appeal quashed.



____________________________________________


16, 2018, Appellants filed post-trial motions in Actions I and II. These motions
were timely in Action II, because the tenth and eleventh days after the
decision, January 14 and 15, 2018, fell on a Sunday and a holiday (Martin
Luther King Jr. Day), respectively. Pa.R.C.P. No. 106(b) (“whenever the last
day of any [time period in any rule of civil procedure] shall fall on a Saturday
or Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation”). In Action I, the same post-trial motions were premature, not
timely, due to the court’s failure to enter a decision in that action.

5 Since we quash this appeal for lack of a final appealable judgment, we do
not reach the question whether quashal may have been necessary under
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), due to Appellants’
failure to file separate notices of appeal at each docket number.

Nor does it appear that our recent decisions in Commonwealth v. Jerome
Johnson, — A.3d —, 2020 WL 3869723 (Pa. Super., July 9, 2020) (en banc),
and Commonwealth v. Rebecca Johnson, — A.3d —, — WL —, 2020 Pa.
Super. 173 (Pa. Super., July 23, 2020), would obviate any Walker concern.
In both decisions, we held that quashal was not necessary, because the
defendant complied with Walker by filing a separate notice of appeal at each
docket number. The fact that each notice contained multiple docket numbers
was “of no consequence.” Jerome Johnson, 2020 WL 3869723, at *4. Here,
unlike in the Johnson cases, Appellant merely filed a single notice of appeal
identifying two consolidated cases with different defendants in each action.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2020




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