J-S21003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AB RHODES, LLC

v.

SHARON E. DICK AND LARRY DICK, 

HUSBAND AND WIFE 

Appellants

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1683 WDA 2016

Appeal from the Judgment Entered on October 19, 2016

In the Court of Common Pleas of Mercer County Civil Division at No(s): 

2015-1332

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED JULY 10, 2018

Appellants, Sharon E. Dick and Larry Dick, husband and wife, appeal 

from the judgment entered on October 19, 2016, in favor of A B Rhodes, LLC

(“A B Rhodes”) and against Appellants, in the amount of $1,861,627.00. We 

affirm.

The trial court ably explained the underlying facts and procedural 

posture of this case:

This matter generally arises out of the purchase and 

proposed development of commercial property wherein [A B 

Rhodes] planned to erect a destination winery including a 

dining and banquet facility near Interstate 79 and the Grove 

City Outlet Malls in Mercer County. Appellants [] were 

obligated to make certain improvements to the property at 

their expense within certain deadlines. Appellants failed to 

take the necessary action[,] which resulted in [A B Rhodes] 

filing a lawsuit seeking damages for [Appellants’] failure to 

make the necessary improvements, and for [A B Rhodes’] 

loss of profits.
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Essentially, the parties entered into a real estate sales 

agreement on November 7, 2013[,] wherein [A B Rhodes] 

purchased approximately 10 acres of commercial unimproved 

property from [Appellants] for $250,000.00 subject to certain 

escrow provisions. The property, however, had no access 

road [and] no service by utilities including storm water, 

sanitary sewer, water, gas[, or] electric. The initial complaint

sought over $600,000.00 in damages.

Appellants failed to file a timely answer or other appropriate 

pleading to the complaint and took no further action when 

given a [ten-]day notice of [A B Rhodes’] intent to take a 

default judgment[. This] result[ed] in a default judgment 

being entered against [Appellants] on February 25, 2016 for 

$600,000.00. [43 days] later, [Appellants] filed a petition to 

open the judgment[; this petition was denied on] May 5, 

2016. That order was not appealed.

[Several months later, Appellants] filed a motion challenging 

the assessment of damages by the prothonotary[. The trial 

court granted Appellants’ motion on] September 30, 2016 

[and, in so doing,] set[] aside the default assessment of 

damages of $600,000.00[. The trial court] schedul[ed] an 

evidentiary hearing on the issue of damages only. However,

the judgment in favor of [A B Rhodes] on the liability issue 

remained unchallenged.

The [trial] court conducted an evidentiary hearing for the 

assessment of damages in this matter on October 6 and 17, 

2016[,] at which time three witnesses testified on behalf of 

[A B Rhodes] and [Appellants] elected to call no witnesses. 

The [trial] court rendered its [decision on] October 18, 

2016[,] assessing damages against [Appellants] and in favor 

of [A B Rhodes] in the amount of $1,861,627.00. [Judgment 

was then entered on October 19, 2016.]

Trial Court Opinion, 4/21/17, at 1-2 (some internal capitalization omitted).

Appellants did not file a post-trial motion. Instead, Appellants filed a 

notice of appeal on November 3, 2016. Appellants raise five claims on appeal:
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[1.] Whether the trial court erred in accepting Bryan Rhodes 

as an expert witness where his experience and education 

were insufficient to establish him as such[?]

[2.] Whether the trial court erred in admitting a business 

plan/economics report authored by an out of court declarant 

who did not testify at trial where the document was offered 

for the truth of the matter asserted therein and no exception

to the hearsay rule applied[?]

[3.] Whether the trial court erred in awarding damages to 

[A B Rhodes] which had already been recovered in a separate 

action[?]

[4.] Whether the trial court erred in its award of damages 

where [A B Rhodes] failed to mitigate damages[?]

[5.] Whether the trial court erred in awarding [A B Rhodes] 

damages for lost profits where said damages were 

speculative in nature as [A B Rhodes’] business was a startup business[?]

Appellants’ Brief at 4.

All of Appellants’ claims on appeal are waived, as Appellants failed to 

file a post-trial motion in this case. 

Pennsylvania Rule of Civil Procedure 227.1 provides, in pertinent part:

(c) Post-trial motions shall be filed within ten days after

. . .

(2) notice of nonsuit or the filing of the decision in the 

case of a trial without jury.

Pa.R.C.P. 227.1(c) (emphasis added).

This Court has emphasized the mandatory nature of post-trial motions 

under Pa.R.C.P. 227.1 as follows:
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The Pennsylvania Supreme Court has stated that the filing of 

post-trial motions is mandatory if a litigant wishes to 

preserve issues for appellate review. See L.B. Foster Co. v. 

Lane Enterprises, Inc., 710 A.2d 55 (Pa. 1998) (“Pa.R.C.P. 

227.1 requires parties to file post-trial motions in order to 

preserve issues for appeal. If an issue has not been raised in 

a post-trial motion, it is waived for appeal purposes.”)

In Lane Enterprises, Inc. v. L.B. Foster Co., 700 A.2d 465, 

469-470 (Pa. Super. 1997), after a nonjury trial in a breach 

of contract action, the trial court issued an opinion disposing 

of issues the parties raised in trial memoranda. Following the 

trial court's decision, instead of filing post-trial motions, the 

appellant, Foster, filed a praecipe to enter judgment and a 

notice of appeal. A panel of this Court reviewed the merits 

of the appeal despite the lack of post-trial motions. Id. In a 

one-paragraph per curiam order, the Pennsylvania Supreme 

Court reversed this Court and reiterated the importance of 

post-trial motions. See Lane Enterprises, Inc., 710 A.2d 

at 54 and L.B. Foster Co., 710 A.2d at 55.

In other decisions applying Pa.R.C.P. 227.1 in actions at law, 

our Court has consistently quashed appeals from orders or 

verdicts following nonjury trials when no post-trial motions 

were filed. See e.g. Baughman v. State Farm Mut. Auto. 

Ins. Co., 656 A.2d 931 (Pa. Super. 1995) (quashing an 

appeal taken directly from an order, captioned as a

judgment, which was entered after a nonjury trial); Krystal 

Development Corp. v. Rose, 704 A.2d 1102, 1103 (Pa. 

Super. 1997) (without post-trial motions after a nonjury trial, 

there are no issues preserved for appellate review). The 

importance of filing post-trial motions cannot be 

overemphasized. “[T]his is not blind insistence on a mere 

technicality since post-trial motions serve an important 

function in adjudicatory process in that they afford the trial 

court in the first instance the opportunity to correct asserted 

trial error and also clearly and narrowly frame issues for 

appellate review.” Fernandes v. Warminster Mun. Auth.,

442 A.2d 1174, 1175 (Pa. Super. 1982). Even when a litigant 

files post-trial motions but fails to raise a certain issue, that 

issue is deemed waived for purposes of appellate review. 

See Hall v. Owens Corning Fiberglass Corp., 779 A.2d 

1167, 1169 (Pa. Super. 2001) (where a claim was not 
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specified in the post-trial motions, the issue was not 

preserved and is, therefore, waived).

Diamond Reo Truck Co. v. Mid-Pac. Indus., Inc., 806 A.2d 423, 428 (Pa. 

Super. 2002) (internal footnote and some internal citations omitted). 

In this matter, at the October 6 and 17, 2016 hearing, the trial court 

heard testimony from three witnesses and accepted multiple exhibits. 

Consequently, though perhaps not docketed or titled as such, the October 6 

and 17, 2016 proceeding was a nonjury trial from which Appellants were

obligated to file a post-trial motion. Id.; Pa.R.C.P. 227.1(c)(2); see also

Pa.R.C.P. 1037(b)(1) (“(b) The prothonotary, on praecipe of the plaintiff, shall

enter judgment against the defendant for failure to file within the required 

time a pleading to a complaint which contains a notice to defend or . . . for 

any relief admitted to be due by the defendant's pleadings. (1) The 

prothonotary shall assess damages for the amount to which the plaintiff is 

entitled if it is a sum certain or which can be made certain by computation, 

but if it is not, the damages shall be assessed at a trial at which the issues 

shall be limited to the amount of the damages”) (emphasis added); see also

Appellants’ Brief at 6 (acknowledging that the underlying proceeding was “a 

trial limited to the issue of damages”). Appellants filed no such post-trial 

motion, rendering all appealable issues arising from the judgment waived and 
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foreclosing our consideration of the matter.1 Consequently, we are 

constrained to affirm.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2018

____________________________________________

1

 We note our awareness of the Supreme Court of Pennsylvania’s decision in 

Newman Development Group v. Genuardi’s Family Markets, 52 A.3d 

1233 (Pa. 2012), holding that, under the circumstances of that matter, our 

Court had improperly found the appellant’s issues waived for failure to file 

post-trial motions. Newman Development Group, however, is 

distinguishable from this case because, in that matter, the trial court order 

appealed from was an order on remand that the trial court entered without a 

proceeding constituting a “trial.” Id. at 1251. In this matter, the case is not 

on remand, and the trial court’s acceptance of testimony and evidence at the 

October 6 and 17, 2016 hearing plainly constituted a nonjury trial. Therefore, 

pursuant to long established Pennsylvania law, Appellants were obligated to 

file a post-trial motion to preserve their issues for appeal. 
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