OPINION BY GANTMAN, P.J.
Appeal from the Order Entered July 18, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): February Term, 2016 No. 1599 BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J. OPINION BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court. --------
Appellant, G & G Investors, LLC, appeals from the order entered in the Philadelphia County Court of Common Pleas, denying Appellant's petition for a conservator of real property owned by Appellee, Phillips Simmons Real Estate Holdings, LLC 1262 Point Breeze Avenue Philadelphia, PA 19146 OPA/BRT: 871167750. We affirm.
The relevant facts and procedural history of this case are as follows. Appellee owns an unoccupied building in Philadelphia, Pennsylvania ("Property"). On February 10, 2016, Appellant filed a petition pursuant to the Abandoned and Blighted Property Conservatorship Act, 68 P.S. § 1101, et seq. ("Act 135"), seeking to be appointed conservator of the Property. The court dismissed Appellant's petition without prejudice for procedural defects on March 11, 2016. On March 17, 2016, Appellant filed an amended petition for appointment of conservator. The court issued an order on March 21, 2016, to show cause and scheduled a hearing on Appellant's amended petition. On April 19, 2016, Appellant filed a petition for authorization to inspect the Property's interior. Appellee filed an answer and new matter to the amended petition, and Appellant filed a reply to new matter.
On July 13, 2016, the court conducted a proceeding, at which both parties gave opening statements and presented testimony and other evidence, including photographs of the Property. The trial court opinion summarized the hearing as follows.
[Appellant] first offered testimony from David Feldman who was qualified as an expert as a realtor licensed in Pennsylvania and as a licensed architect. Mr. Feldman testified that he inspected the exterior of the Property and found certain deficiencies such as the building's "brick work appears to be pulling away from the building" ([N.T. Hearing, 7/13/16, at] 21); the boarded second-floor window was installed improperly, resulting in "a very large opening for [both] birds to get in and rain" ([
Id. at] 25); looking through the windows of the first floor he saw debris and mouse or rat droppings. ([
Id. at] 26-27). Mr. Feldman later qualified his testimony, stating he was not certain that what he saw were animal droppings. ([
Id. at] 41). The photos of the Property presented by [Appellant] and identified by Mr. Feldman did not reflect an exterior of an "abandoned and blighted" property.
Lastly, Mr. Feldman testified that the condition of the Property has a negative effect on neighbors. By his own admission, Mr. Feldman drew his conclusion based on "generalities" and did not speak to any neighbors on the block or the surrounding area. ([ Id. at] 31). He did not
testify as to the specific effect the alleged conditions of this Property had on the surrounding neighborhood, such as reduction in value, or inability to obtain insurance.
[Appellant]'s second witness was Mariano Mattei. Mr. Mattei's father owns [real property] located next to and abutting the Property at issue. His property is being renovated for use as a pizza shop but was not in operation as of the hearing. Mr. Mattei testified that [he] believed his property sustained water damage due to the conditions of the Property in question. However, when asked "what facts do you have to establish that the water you're testifying to today comes from [the Property]", Mr. Mattei admitted, "I have no facts." ([ Id. at] 56). ...
[Appellant]'s third witness was Anthony Gioielli, co-owner of [Appellant]. Mr. Gioielli testified that he'd seen the back door to the Property unsecured. ([ Id. at] 62). Although Mr. Gioielli identified a photo of the back door which appeared to be open1, Mr. Mattei stated he never saw the back door open as it was in the photo. ([ Id. at] 53). [Mr. Gioielli] further testified that he had seen people throw trash into the gated front entrance ([ Id. at] 63), however none of the photos offered into evidence by [Appellant] reflected trash in the area in question. The front of the Property appeared secured with gates covering large glass display windows. Th[e Property] appeared to be a corner commercial [p]roperty with glass display windows on both sides of the corner front entrance. Finally, Mr. Gioielli admitted that he had approached [Appellee] prior to filing this action and offered to buy the Property. ([ Id. at] 68). Mr. Gioielli testified that he owned properties in [the] area, he was an investor that "flipped" properties and that this Property had affected his investment properties. He was not specific as to how these properties were affected.
1 Exhibit P-1H shows the back door to the Property open. The integrity of the door is not compromised, and there appears to be a lock-box attached to the doorknob. There is no indication from the photo that the Property is subject to unauthorized entry.
[Appellee]'s first witness was Lionel Simmons, co-owner of [Appellee]. Mr. Simmons testified that [in] 2009 he
obtained a permit from the City of Philadelphia to make repairs on the Property and started work on new stairs, and repair and replacements of joists. ([
Id. at] 76). He admitted that at some point he stopped work due [to] a legal dispute that arose with a co-owner which could have clouded the title. Mr. Simmons testified that currently the Property is "gutted out", with the electric and plumbing removed. ([
Id. at] 77). [Appellee] introduced photographs of the interior to show the status of the Property renovations and were consistent with [Mr. Simmons'] description that the Property had been "gutted out." ...
[Appellee]'s second witness was Christopher Sample, chief of staff to District Councilmember Kenyatta Johnson. Mr. Sample confirmed that the Councilman's office had not received any complaints about the Property, which is located in his district.
At the conclusion of testimony, [Appellee] moved to dismiss the action due to [Appellant]'s failure to satisfy the requirements of [Section] 1105 of [Act 135]. [Appellant] requested that the court first allow an interior inspection of the Property pursuant to [its] Petition to Inspect. The court denied [Appellant]'s request and granted [Appellee]'s oral [m]otion to dismiss or deny the [p]etition.
(Trial Court Opinion, filed December 28, 2016, at 2-4, unpaginated).
On July 14, 2016, the court issued an order denying Appellant's amended petition, with notice to the parties on July 18, 2016. Appellant filed no post-trial motion. Appellant did file a timely notice of appeal on August 17, 2016. The court ordered Appellant on August 19, 2016, to file a concise statement of errors complained of appeal per Pa.R.A.P. 1925(b); Appellant timely complied on September 9, 2016.
Appellant raises three issues for our review.
[WHETHER] THE TRIAL COURT ERRED AS A MATTER OF
LAW BY DENYING APPELLANT'S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION OF THE PENDING PETITION ACTION PURSUANT TO 68 P.S. [§] 1101
ET SEQ., [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO VERMIN OR DEBRIS IN THE PREMISES AND AFTER HEARING IT DETERMINED THAT TWO OF THREE REQUIRED CRITERIA WERE MET[?]
[WHETHER] THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT'S PETITION FOR PROPERTY INSPECTION BECAUSE THE PETITION AND BRIEF CLEARLY STATED THAT THE DISCOVERY REQUESTED WAS NECESSARY FOR A DETERMINATION OF THE PENDING PETITION ACTION PURSUANT TO 68 P.S. [§] 1101, ET SEQ., [APPELLEE] AVERRED THAT REHABILITATION HAS TAKEN PLACE DURING THE PREVIOUS 12 MONTHS AND THAT THERE WERE NO VERMIN OR DEBRIS IN THE PREMISES AND AFTER HEARING IT DETERMINED THAT TWO OF THE THREE CRITERIA WERE MET[?]
[WHETHER] THE TRIAL COURT ERRED IN THAT ITS ORDER WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AVERRED IN THE PETITION FOR CONSERVATORSHIP PURSUANT TO 68 P.S. [§] 1101, ET SEQ., SUBSEQUENT FILINGS AND AT THE HEARING HELD BY THE COURT BECAUSE THE PREMISES MET THE CRITERIA OF 68 P.S. [§] 1105(D)(5) AS [APPELLANT] PRESENTED EVIDENCE THAT THE PREMISES MET AT LEAST THREE OF THE [BLIGHT] CRITERIA [UNDER 68 P.S. [§]1105(D)(5)?]
(Appellant's Brief at 8-9) (internal footnote omitted).
As a prefatory matter, we must determine whether Appellant properly preserved its issues for review. See Tucker v. R.M. Tours , 939 A.2d 343, 346 (Pa.Super. 2007), aff'd, 602 Pa. 147, 977 A.2d 1170 (2009) (citing Commonwealth v. Wholaver , 588 Pa. 218, 903 A.2d 1178 (2006), cert. denied, 549 U.S. 1171, 127 S.Ct. 1131, 166 L.Ed.2d 900 (2007)) (stating: "This Court may sua sponte determine whether issues have been properly preserved for appeal"); Hall v. Owens Corning Fiberglass Corp., 779 A.2d 1167, 1169 (Pa.Super. 2001) (stating: "[P]ost-trial relief may not be granted unless the grounds for such relief are specified in the post-trial motion. Grounds not specified in the post-trial motion are deemed waived") (internal citations omitted); Borough of Harveys Lake v. Heck , 719 A.2d 378, 380 (Pa.Cmwlth. 1998) (stating party's failure to file post-verdict motions constitutes waiver of all issues on appeal; whether appellant has preserved any issue for appeal can be raised sua sponte by reviewing court).
The Pennsylvania Rules of Civil Procedure set out the requirements for post-trial relief and state in pertinent part:
Rule 227.1. Post-Trial Relief
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(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 file 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.C.P. 227.1(c)(1)-(2) and
Note (emphasis added). Generally, following a trial, an appellant must file post-trial motions to preserve issues for appellate review; issues not raised in post-trial motions are waived.
Chalkey v. Roush ,
757 A.2d 972, 975 (Pa.Super. 2000) (
en banc),
aff'd, 569 Pa. 462, 805 A.2d 491 (2002). Our Supreme Court has held "that pursuant to Rule 227.1..., parties are required to file post-trial motions from a trial court's order following a trial in both actions at law and in equity in order to properly preserve issues that they wish to raise on appeal...."
Chalkey v. Roush ,
569 Pa. 462, 463-64, 805 A.2d 491, 492 (2002).
Parties to a proceeding that does not amount to a trial, however, need not file post-trial motions to preserve issues for appeal. Pa.R.C.P. 227.1(c)(1)-(2) and Note. Pennsylvania courts look to the substance of an action, rather than the form of a petitioner's initial pleading, to determine whether an action falls within the scope of Rule 227.1. Motorists Mut. Ins. Co. v. Pinkerton , 574 Pa. 333, 343 n. 6, 830 A.2d 958, 964 n. 6 (2003) (applying Rule 227.1 to action petitioner initiated through "Petition for Declaratory Judgment," where case did not proceed under "rules of petition practice"; explaining substance of action, not label petitioner gives initial pleading, dictates whether Rule 227.1 applies).
To determine whether an appellant must file post-trial motions following an in-court proceeding, we consider whether, under the circumstances of the action: (i) the plain language of Rule 227.1 makes clear a post-trial motion is necessary; (ii) case law provides a post-trial motion is necessary, even if Rule 227.1 is silent on the subject; and (iii) practicing attorneys would reasonably expect a post-trial motion to be necessary. Newman Development Group of Pottstown , LLC v. Genuardi's Family Markets , 617 Pa. 265, 289-90, 52 A.3d 1233, 1248 (2012). Case law requires a post-trial motion following a proceeding, where the court heard new testimony and received new evidence, which the court relied upon when it issued its decision. See id. at 294-95, 52 A.3d at 1251 (stating: "a...proceeding...that relies on an existing record is not a trial...."); Vautar v. First Nat. Bank of Pennsylvania , 133 A.3d 6, 11-12 (Pa.Super. 2016) (providing where parties took no new testimony and introduced no evidence and court issued verdict based solely on evaluation of existing record, proceedings did not amount to trial and post-trial motions were unnecessary); City of Philadelphia v. New Life Evangelistic Church , 114 A.3d 472, 478 (Pa.Cmwlth. 2015) (discussing Newman , supra and stating: "[T]he Supreme Court...signaled that a hearing that bears the hallmarks of a trial by requiring or admitting, or...offering a party the opportunity to present additional evidence, does constitute a 'trial' for the purposes of [Rule] 227.1") (emphasis in original).
Instantly, Appellant initiated this case by filing a petition for appointment of a conservator pursuant to Act 135. The trial court conducted a hearing on Appellant's petition, during which the parties offered exhibits into evidence and collectively examined and cross-examined five witnesses. The parties introduced evidence and elicited witness testimony for the first time at the hearing. Although Rule 227.1 is silent concerning post-trial motions following an Act 135 hearing, the record establishes the court relied upon the July 13, 2016 hearing testimony and documentary evidence when it denied Appellant relief. See Newman , supra ; Pa.R.A.P. 227.1(c). Therefore, case law makes clear, and practicing attorneys would reasonably expect, post-trial motions were necessary following the July 13, 2016 hearing. See Newman , supra ; Vautar , supra. Thus, the hearing on Appellant's petition constituted a trial for purposes of Rule 227.1. See Newman , supra ; Vautar , supra ; Pa.R.A.P. 227.1(c). After the court denied Appellant's petition, however, Appellant filed a timely notice of appeal but failed to file any post-trial motion. Accordingly, Appellant waived its issues on appeal. See id.
Moreover, even if properly preserved, Appellant's issues on appeal would not warrant relief. The relevant standard of review is as follows:
Our review in a non-jury case is limited to whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. We must
grant the court's findings of fact the same weight and effect as the verdict of a jury and, accordingly, may disturb the non-jury verdict only if the court's findings are unsupported by competent evidence or the court committed legal error that affected the outcome of the trial. It is not the role of an appellate court to pass on the credibility of witnesses; hence we will not substitute our judgment for that of the fact[-]finder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion.
Agostinelli v. Edwards ,
98 A.3d 695, 704 (Pa.Super. 2014),
appeal denied, 631 Pa. 734, 113 A.3d 278 (2014) (internal citations omitted).
Act 135 provides, in relevant part, as follows:
§ 1105. Appointment of conservator
(a) General rule.—The court shall act upon a petition submitted by holding a hearing within 60 days of receipt of the petition and by rendering a decision no later than 30 days after completion of the hearing.
* * *
(b) Hearing.—At the hearing, any party in interest shall be permitted to present evidence to support or contest the petition, including, but not limited to, the schedule of encumbrances.
(c) Conditions for conservatorship.—If a petition is filed under [this statute], the court may appoint a conservator if all of the following apply as of the date of filing:
(1) The building has not been legally occupied for at least the previous 12 months.
(2) The owner fails to present compelling evidence
that he has actively marketed the property during the preceding 60-day period and made a good faith effort to sell the property at a price which reflects the circumstances and market conditions.
(3) The property is not subject to a pending foreclosure action by an individual or nongovernmental entity.
(4) The current owner fails to present sufficient evidence that he has acquired the property within the preceding six months. 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, or where the current or prior owner is a corporation, partnership or other entity in which either owner or the immediate family of either owner has an interest in excess of 5%.
(5) The court finds at least three of the following:
(i) The building or physical structure is a public nuisance.
(ii) The building is in need of substantial rehabilitation and no rehabilitation has taken place during the previous 12 months.
(iii) The building is unfit for human habitation, occupancy or use.
(iv) The condition and vacancy of the building materially increase the risk of fire to the building and to adjacent properties.
(v) The building is subject to unauthorized entry leading to potential health and safety hazards and one of the following applies:
(A) The owner has failed to take reasonable and necessary measures to secure the building.
(B) The municipality has secured the building in
order to prevent such hazards after the owner has failed to do so.
(vi) The property is an attractive nuisance to children, including, but not limited to, the presence of abandoned wells, shafts, basements, excavations and unsafe structures.
(vii) The presence of vermin or the accumulation of debris, uncut vegetation or physical deterioration of the structure or grounds has created potential health and safety hazards and the owner has failed to take reasonable and necessary measures to remove the hazards.
(viii) The dilapidated appearance or other condition of the building negatively affects the economic well-being of residents and businesses in close proximity to the building, including decreases in property value and loss of business, and the owner has failed to take reasonable and necessary measures to remedy appearance or the condition.
(ix) The property is an attractive nuisance for illicit purposes, including prostitution, drug use and vagrancy.
* * *
68 P.S. § 1105(a), (c), (d).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Idee C. Fox, we conclude Appellant's issues would merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. (See Trial Court Opinion, filed December 28, 2016, at 5-9, unpaginated) (finding: (1-2) Act 135 contains no provision allowing property inspection and discovery; Act 135 requires court to schedule hearing within sixty days of filing of petition; short period between filing of petition and hearing precludes prolonged discovery; further, mere filing of Act 135 petition does not permit petitioner to access another's property without presenting testimony and/or evidence of blight and abandonment; Appellant failed to meet its burden to prove Property is blighted and abandoned under Section 1105(d) of Act 135; if court determined Appellant had established Property were "abandoned and blighted" under Act 135, then court could allow inspection by conservator to prepare and submit conservatorship plan; (3) Appellant failed to establish minimum of three blight conditions under Section 1105(d)(5) of Act 135; evidence demonstrated Property is secured, gutted-out building, with one improperly boarded window, and requires substantial rehabilitation; Property also is unfit for human habitation, occupancy, or use, because it has no electrical or water service; Appellant failed to establish, however, that Property presents "potential health and safety hazard"; speculative evidence of debris and possible vermin did not demonstrate health and safety hazard; no evidence showed how debris at doorway affects health or safety of neighbors, and Appellant presented insufficient evidence of vermin; Appellant also failed to prove dilapidated appearance or condition of Property negatively affects economic well-being of residents and businesses near Property; Appellant presented no testimony from neighbors as to effect of Property, and Appellee produced evidence that no neighbor had complained to city councilman about Property). The record supports the trial court's rationale, and we would have no need to disturb it. Accordingly, even if Appellant had properly preserved its issues on appeal, we would affirm on the basis of the trial court opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/4/18
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