J. A12033/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE MIXX LLC,                        :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :
                                        :
ALBERT H. WOMELSDORF;                   :
CLARA J. WOMELSDORF;                    :
AND ALL UNKNOWN HEIRS                   :
2055 AMBER STREET                       :         No. 3284 EDA 2017
PHILADELPHIA, PA 19125                  :
OPA/BRT: 311132500                      :


              Appeal from the Order Entered August 25, 2017,
            in the Court of Common Pleas of Philadelphia County
                Civil Division at No. 1025 January Term, 2017


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED AUGUST 24, 2018

     In the Mixx LLC appeals the August 25, 2017 order of the Court of

Common Pleas of Philadelphia County that denied appellant’s petition for the

appointment of a conservator and vacated the lis pendens placed on the

property located at 620 S. 52nd Street, Philadelphia, Pennsylvania, pursuant

to the Abandoned and Blighted Property Conservatorship Act (“Act”), 68 P.S.

§§ 1101-1111. After careful review, we affirm.

     The trial court summarized the factual and procedural history as follows:

           Before this Court is a Petition for Appointment of a
           Conservator (“Petition”) filed by [appellant] under the
           [Act].   [Appellant] owns property at 2088 East
           Cumberland Street in Philadelphia. [Appellant] seeks
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          the appointment of a conservator in relation to a
          property located at 2055 Amber Street in Philadelphia
          (“Property”). The named Respondents are “Albert H.
          Womelsdorf, Clara J. Womelsdorf, and all unknown
          heirs.” Thomas Wickham, Jr. . . . has responded to
          the Petition contending that he acquired his ownership
          interest less than six months before the Petition was
          filed.

          A hearing was scheduled to determine whether the
          conditions for conservatorship have been met,
          whether a conservator should be appointed, who
          should be appointed as conservator and/or whether
          other appropriate relief should be granted.

          The parties stipulated to certain facts. As to Property
          title, the Property was purchased by Albert and
          Clara Womelsdorf in 1950. Albert Womelsdorf died in
          1961 and Clara Womelsdorf died in 1981.
          Thomas Wickham, Sr. (Wickham, Sr.), father of
          [Thomas Wickham, Jr.] and grandchild of Albert and
          Clara Womelsdorf, resided in the Property from 1944
          until his own passing on September 3, 2016. Since
          the death of Clara Womelsdorf in 1981, Wickham, Sr.,
          paid all utility and tax bills for the Property. On or
          about March 2016, upon becoming extremely ill,
          Wickham, Sr., transferred the address on the
          Property’s bills to his son, [Thomas] Wickham, Jr.
          Thereafter, Wickham, Sr., died testate, naming
          [Thomas] Wickham, Jr., as his sole heir.

          However, as the parties have stipulated, upon his
          father’s death, [Thomas] Wickham, Jr., was not the
          only potential heir of Albert and Clara Womelsdorf.
          They had two daughters, Alberta and Edna, both of
          whom are since deceased.            Alberta married
          John Wickham, with whom she had two children—
          John Wickham, Jr., and Thomas Wickham, Sr., the
          aforementioned father of [Thomas Wickham, Jr.]
          John Wickham, Jr., died in March of 2016, leaving his
          estate to his wife, Anna Wickham. [John Wickham
          died in 1936].      Subsequently, Alberta Wickham
          married Robert T. Parker, with whom she had four
          children—Charles Parker, Karen Parker D’Alessandro,


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          Ronald Parker, and David Parker. David Parker died,
          leaving his estate to his wife Diane. Alberta and
          Robert Parker’s three remaining children are living.
          Edna Womelsdorf married James P. White, who is now
          deceased. The couple had two children, Patricia White
          Benhayon and James White, Jr., both of whom are
          living.

          That being said, there were seven potential heirs to
          the Property, besides Thomas Wickham, Jr., namely
          Anna Wickham, Charles T. Parker, Karen Parker
          D’Alessandro,     Diane    Parker,    Ronald     Parker,
          Patricia White Benhayon, and James White, Jr.
          Subsequent to the filing of this Petition, all other
          potential heirs disclaimed any interest to the Property,
          noting that it was, and continues to be, their belief
          that Clara Womelsdorf gave the Property to
          Wickham, Sr.

          To that end, the evidence established that after his
          father’s    death    on     September      3,     2016,
          [Thomas] Wickham, Jr., believing his father was the
          sole owner of the Property, visited and examined the
          Property, analyzing how best to resurrect it from a
          blighted state. [Thomas] Wickham, Jr., determined
          that he would raze the structure, secure the premises,
          and then determine whether to sell the Property or
          enter into a joint venture to build upon the lot. In
          September 2016, [Thomas] Wickham, Jr., entered
          into an agreement with DD Fox Construction, LLC, to
          demolish the building on the Property, remove the
          debris, and complete potential stuccoing necessary on
          the adjacent property. At that point in time, the
          architect assigned to the project discovered that title
          to the Property remained in the names of Albert and
          Clara        Womelsdorf,          and         informed
          [Thomas] Wickham, Jr., that due to the title, a permit
          could not be pulled.       Until this point in time,
          Thomas Wickham, Jr., was not aware that his father’s
          name was not on the deed.

          Immediately after discovering the deed issue,
          Thomas Wickham, Jr., went to great lengths to correct
          the deed and consulted legal counsel to rectify the


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            matter. He began the process to secure his name on
            the deed to the Property. He also began the work
            necessary to remediate the blighted conditions. This
            Petition was filed in January 2017, less than six
            months from the death of Wickham, Sr.

            With the parties in agreement that the Property meets
            the definition of “blighted,” as set forth in the Act, and
            the parties having stipulated to the relevant facts
            preceding this action, the sole remaining issue is
            whether the current owner, [Thomas] Wickham, Jr.,
            acquired the Property within six months of the filing
            of the Petition. This Court granted the parties leave
            to submit memoranda as to the issue of “whether the
            current owner acquired the Property at issue within
            six months of the filing of the Petition as set forth
            under 68 P.S. § 1105(d)(4).”

Trial court opinion, 8/28/17 at 1-41 (footnote omitted, emphasis in original).

      By order filed August 28, 2017, the trial court denied the petition for

appointment of a conservator and vacated the lis pendens filed on the

Property.

      On September 27, 2017, appellant filed a notice of appeal to this court.

On October 18, 2017, the trial court filed an addendum to opinion that

indicated that the basis for the trial court’s decision was in the opinion that

accompanied the order dismissing the petition and attached a copy of the

opinion to the addendum. Although appellant includes a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) in its brief and




1 The pages in the trial court opinion are unnumbered. We have numbered
the pages in sequence.


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reproduced record, the trial court did not request that appellant do so, and

the statement is not part of the certified record before this court.

      Appellant raises the following questions for this court’s review:

            1.    Did the trial court error [sic] by finding that the
                  alleged owner “present[ed] sufficient evidence
                  that he has acquired the property within the
                  preceding six months” of the filing of the
                  Petition for the Appointment of a
                  Conservator        pursuant      to     68     P.S.
                  § 1105(d)(4)?

            2.    Did the trial court error [sic] by finding that an
                  “owner” as defined by 68 P.S. § 1103 includes
                  heirs with no ownership interest of public
                  record?

            3.    Did the trial court error [sic] by applying the
                  familial exception specified in 68 P.S.
                  § 1105(d)(4) to this matter?       This section
                  provides in relevant part: “The evidence shall
                  not include instances where the prior owner is a
                  member of the immediate family of the current
                  owner, unless the transfer of title results from
                  the death of the prior owner.”          68 P.S.
                  § 1105(d)(4).

Appellant’s brief at 6 (emphasis in original).

      Before addressing the merits of this appeal, we must determine whether

appellant properly preserved its issues for review.            See Tucker v.

R.M. Tours, 939 A.2d 343, 348 (Pa.Super. 2007), affirmed, 977 A.2d 1170

(Pa. 2009), citing Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006),

cert. denied, 549 U.S. 1171 (2007) (stating “[appellate courts] may

sua sponte determine whether issues have been properly preserved for

appeal”).


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      The Pennsylvania Rules of Civil Procedure set out the requirements for

post-trial relief and state:

            Rule 227.1 Post-Trial Relief

            ....

            (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
                         a jury.

                   If a party has filed a timely post-trial motion,
                   any other party may filed a post-trial motion
                   within ten days after the filing of the first
                   post-trial motion.

                         Note: A motion for post-trial relief
                         may be filed following a trial by jury
                         or a trial by a judge without a jury
                         pursuant to Rule 1038. A motion for
                         post-trial relief may not be filed to
                         orders disposing of . . . other
                         proceedings which do not constitute
                         a trial. See U.S. National Bank in
                         Johnstown v. Johnson, 506 Pa.
                         622, 487 A.2d 809 (1985).

                         A motion for post-trial relief may
                         not be filed to matters governed
                         exclusively by the rules of petition
                         practice.

            ....

Pa.R.Civ.P. 227.1(c)(1-2) and Note.



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      As the rule and accompanying note state, a post-trial motion does not

have to be filed following a proceeding that does not constitute a trial.

      In order to determine whether an appellant must file post-trial motions

following a proceeding in court, this court must consider whether (1) the plain

language of Rule 227.1 makes clear that a post-trial motion is required,

(2) case law provides that a post-trial motion is required, even if Rule 227.1

is silent on the subject, and (3) practicing attorneys would reasonably expect

that a post-trial motion was necessary. Newman Dev. Group of Pottstown,

LLC v. Genuardi’s Family Mkts., 52 A.3d 1233, 1248 (Pa. 2012).

      Recently, in G & G Investors, LLC v. Phillips Simmons Real Estate

Holdings, LLC, 183 A.3d 472 (Pa.Super. 2018), this court determined that

the petition for the appointment of a conservator pursuant to the Act was a

proceeding that required the filing of a post-trial motion where the parties

offered exhibits into evidence and examined and cross-examined witnesses

and where the trial court relied on the hearing testimony and documentary

evidence when it denied the petition. This court held that where no post-trial

motion was filed and a timely notice of appeal was filed, the issues on appeal

were waived.2




2 It appears that G & G decided an issue of first impression as to the
requirements under the petition practice of the Act.           No request for
reargument or petition for allowance of appeal has been filed. This court notes
that Attorney Richard L. Vanderslice, counsel for appellant here, also
represented G & G Investors, LLC, in G & G.


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      Similarly, here the parties presented stipulations:   that the Property

qualified as blighted under the Act; that Albert H. Womelsdorf and

Clara J. Womelsdorf were the titled owners of the Property under a deed dated

November 4, 1950, and recorded November 30, 1950; concerning the

relationship of Thomas Wickham, Sr., to the Womelsdorfs and the Property;

and that Thomas Wickham, Sr., left all of his property to Thomas Wickham, Jr.

(Notes of testimony, 5/23/17 at 4-5.) The parties also stipulated as to the

other potential heirs of Clara J. Womelsdorf and that these heirs disclaimed

any interest in the Property. (Id. at 6-9.) Thomas Wickham, Jr., included his

affidavit along with a memorandum of law that the trial court requested.

      The trial court relied at least in part on these stipulations and the

affidavit in rendering its decision. Although there were not live witnesses, as

in G & G, evidence was presented by stipulation at the hearing. If the parties

had not agreed to the stipulations, they would have had the opportunity to

present witnesses.

      Moreover, the Supreme Court of Pennsylvania in Motorists Mut. Ins.

Co. v. Pinkerton, 830 A.2d 958, 964 (Pa. 2003), held that orders following

trials on stipulated facts must be treated the same as orders following other

trials. In other words, in both situations, a party who wishes to appeal must

first file post-trial motions.   Our supreme court based its decision on the

Explanatory Comment to Rule 1038.1 of the Pennsylvania Rules of Civil

Procedure, which stated that trials based on stipulated facts follow the



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procedure of a non-jury trial with respect to the decision, post-trial practice,

and appeal. See Pa.R.Civ.P. 1038.1 (Explanatory Comment-1996).

      As in G & G, appellant filed a timely notice of appeal but failed to

preserve any issues on appeal when it did not file a post-trial motion.

Accordingly, appellant waived all issues on appeal. Assuming arguendo, that

appellant did preserve its issues on appeal, this court would still affirm based

on the well-reasoned opinion of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/24/2018




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