J-A19012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    R. DAVID MITCHELL AND SHERRI P.            :   IN THE SUPERIOR COURT OF
    MITCHELL, H/W                              :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MEGILL HOMES, INC., MISTY                  :
    MEADOWS HOMES, INC., AND                   :   No. 3158 EDA 2018
    WAYNE C. MEGILL                            :
                                               :
                       Appellants              :

               Appeal from the Judgment Entered October 1, 2018
                In the Court of Common Pleas of Chester County
                       Civil Division at No(s): 2015-04560

    R. DAVID MITCHELL AND SHERRI P.            :   IN THE SUPERIOR COURT OF
    MITCHELL, H/W                              :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 3202 EDA 2018
    MEGILL HOMES, INC., MISTY                  :
    MEADOWS HOMES, INC., AND                   :
    WAYNE C. MEGILL                            :

               Appeal from the Judgment Entered October 1, 2018
                In the Court of Common Pleas of Chester County
                   Civil Division at No(s): No.2015-04560-CT


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 06, 2019




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        Misty Meadows Homes, Inc., a real estate development company,

purchased and developed a parcel of land in New London Township, Chester

County, Pennsylvania. It contracted with a builder, Megill Homes, Inc., to

construct homes on the land. After construction was completed, in 2004,

David and Sherri Mitchell purchased one of these homes from Misty Meadows.

        In 2014, the Mitchells listed their home for sale. The buyers conducted

a routine inspection and discovered water infiltration and damage to the

home. Because of the damage, the Mitchells reduced the sales price from

$500,000 to $350,000. Thereafter, the Mitchells initiated this action, asserting

claims against both Misty Meadows and Megill Homes for breach of contract,

breach of express warranty, breach of implied warranty of habitability, breach

of implied warranty of reasonable workmanship, and violations of the

Pennsylvania Unfair Trade Practice and Consumer Protection Law.

        The case proceeded to a bifurcated trial, with a jury hearing the common

law claims, and the trial court hearing the UTPCPL statutory claim. At the close

of the jury trial, the trial court entered nonsuit with respect to the Mitchells’

claims against Megill Homes, and the implied warranty of habitability and

express warranty claims against Misty Meadows. The jury then found that

Misty Meadows had breached the implied warranty of reasonable workmanship

and agreement of sale, and awarded damages of $150,000. The court

conducted a two-day bench trial, after which, on April 27, 2018,1 it issued an
____________________________________________


1   The order was docketed on April 30, 2018. See Pa.R.A.P. 108(b).


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order determining that Misty Meadows had violated the UTPCPL, and awarded

additional attorneys’ fees and costs.

          On May 9, 2018, the Mitchells filed a motion for removal of nonsuit and

reconsideration of the court’s orders. Before the trial court ruled on their

motion, the Mitchells filed a notice of appeal (1631 EDA 2018). On August 27,

2018, this Court quashed the appeal sua sponte, concluding that a final

judgment had not been entered on the docket. In its order quashing the

appeal, this Court also denied a petition for remand that the Mitchells had

filed.2

          After their appeal was quashed, the Mitchells filed a motion for leave to

file an amended motion for post-trial relief.3 The trial court denied the

Mitchells’s motion, stating:

          Since the application filed by the [Mitchells’] to the Superior Court
          to remand and permit this court to consider post-trial motions has
          been denied, this court believes it does not have jurisdiction to
          consider the [Mitchells’] various reasons to grant them post-trial
          relief.

Order, 8/31/18.




____________________________________________


2 The Mitchells’ petition for remand requested that this Court retain jurisdiction
over the appeal, but remand for the trial court to consider the motion for post-
trial relief.

3  This motion assumes that the motion filed on May 9, 2018 was not timely
filed, and sought leave to file the motion nunc pro tunc, so that it may be
considered timely and considered on the merits.

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      On October 1, 2018, the Mitchells filed a praecipe for entry of judgment,

which the prothonotary entered that same day. The parties’ appeal and cross-

appeal were timely filed.

      Before addressing the merits of the issues raised, we must determine

whether this appeal is properly before us.

      Initially, we consider whether the Mitchells’ motion for removal of

nonsuit and reconsideration of the court’s orders constituted a post-trial

motion.

      Pennsylvania Rule of Civil Procedure 227.1 sets forth the requirements

concerning post-trial motions.

      Rule 227.1. Post-Trial Relief

      (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.

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

Pa.R.C.P. 227.1 (a), (c).



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       This Court has considered a motion for reconsideration to be the

functional equivalent of a post-trial motion where, despite the caption of the

motion requesting reconsideration, the content of the motion requests post-

trial relief in accordance with Pa.R.C.P. 227.1. See Liles v. Balmer, 653 A.2d

1237, 1240 n.5 (Pa. Super. 1994).4

       Here, the Mitchells filed their motion within ten days of the court’s

decision in the UTPCPL non-jury trial. With respect to the content of the

motion, it seeks removal of nonsuit, an explicit ground for post-trial relief

under 227.1(a)(3), and seeks a new trial on the issue of habitability of the

home. Consequently, although the Mitchells referred to their motion as a

motion for reconsideration, the content of the motion requests post-trial relief

in accordance with Rule 227.1. Accordingly, the motion is the functional

equivalent of a timely filed post-trial motion.

       Additionally, we note that Misty Meadows filed its post-trial motion

sixteen days after the court entered its decision on the UTPCPL claim, but

seven days after the Mitchells’ post-trial motion. “If a party has filed a timely

post-trial motion, any other party may file a post-trial motion within ten days

after the filing of the first post-trial motion.” Pa.R.C.P. 227.1(c)(2). Therefore,

Misty Meadows’ post-trial motion was timely filed as well.

____________________________________________


4 Furthermore, we note that Misty Meadows relied on the Mitchells’ motion
being a post-trial motion to establish timeliness for their own post-trial motion.
Misty Meadows filed its post-trial motion seven days after the Mitchells’
motion, but sixteen days after the court entered its decision on the UTPCPL
claim.

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      Because the parties timely filed post-trial motions, we must next

ascertain whether the motions were disposed of prior to judgment being

entered.

      Appellants must file post-trial motions pursuant to Pa.R.C.P. 227.1
      in order to preserve their issues for appeal. Once a post-trial
      motion is timely filed, judgment cannot be entered until the trial
      court enters an order disposing of the motion or the motion is
      denied by operation of law one hundred and twenty days after the
      filing of the motion.

Melani v. Nw. Eng’g, Inc., 909 A.2d 404, 405 (Pa. Super. 2006) (citations

omitted).

      Pennsylvania Rule of Civil Procedure 227.4 provides that upon praecipe

of a party, the prothonotary shall:

      (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

                                      *     *   *

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

Pa.R.C.P. 227.4(1)(b).

      In Melani, this Court found that the appellants filed a timely post-trial

motion; however, they filed their notice of appeal before the motion was

decided and judgment entered. The Court concluded that because the appeal

was from an interlocutory order, the appeal did not divest the trial court of

jurisdiction to act on the post-trial motion. See Melani, 909 A.2d at 406.

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      Here, similarly, the Mitchells filed their first notice of appeal before their

post-trial motion had been ruled on and judgment entered. This Court quashed

the appeal and remanded to the trial court. The Mitchells’ application to

remand while this Court retained jurisdiction was denied. Since the trial court’s

decision on the post-trial motions was more than a mere ministerial act, it was

inappropriate for this Court to retain jurisdiction while the court considered

the motions. Indeed, under Melani, we had no jurisdiction to retain.

      However, rather than deciding the merits of the Mitchells’ motion, the

trial court stated that it “believes it does not have jurisdiction to consider the

[Mitchells’] various reasons to grant post-trial relief.” Order, 8/31/19. The

prothonotary then, upon praecipe of the Mitchells, entered final judgment.

      The Mitchells’ initial appeal to this court did not divest the trial court of

jurisdiction because it was from an interlocutory order. The trial court did have

jurisdiction to consider both the Mitchells’ and Misty Meadows’ timely post-

trial motions. Accordingly, we vacate the judgment entered on October 1,

2018, and remand to the trial court in accordance with this memorandum. The

120 day period set forth in Pa.R.Civ.P. 227.4(1)(b) will commence on the date

of this order.

      Judgment     vacated.    Case    remanded      in   accordance    with   this

memorandum. Jurisdiction relinquished.




                                       -7-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/19




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