J-A21013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FAN XIAN, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OI YEE HUNG AND CHING K. WONG,

Appellants No. 2510 EDA 2015

Appeal from the Judgment Entered October 26, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): December Term 2013, No. 2207

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 17, 2016

Appellants, Oi Yee Hung and Ching K. Wong, appeal from the 

judgment entered on October 26, 2015,1after the trial court’s denial of 

Appellants’ motion for post-trial relief, in which they requested that the court 

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1 Appellants purport to appeal from the July 10, 2015 order denying their 

post-trial motion. However, “[a]n appeal from the denial of post-trial 

motions is interlocutory and not a final appealable order.” Sagamore 

Estates Property Owners Ass’n v. Sklar, 81 A.3d 981, 983 n.3 (Pa. 

Super. 2013) (citation omitted). “An appeal to this Court can only lie from 

judgments entered subsequent to the trial court’s disposition of post-verdict 

motions....” Vance v. 46 and 2, Inc., 920 A.2d 202, 205 n.2 (Pa. Super. 

2007) (citation omitted). Accordingly, we directed Appellants, by per curiam

order dated October 15, 2015, to praecipe the trial court prothonotary to 

enter judgment, and to file with the prothonotary of the Superior Court 

within ten days a certified copy of the trial court docket reflecting the entry 

of the judgment. The record reflects that Appellants have timely complied, 

and judgment was entered on October 26, 2015.
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vacate its findings in favor of Appellee, Fan Xian. After careful review, we 

affirm. 

The relevant facts and procedural history of this case were 

summarized by the trial court in the following portion of its Pa.R.A.P. 

1925(a) opinion:

On December 17, 2013, [Appellee] commenced the instant 

action against [Appellants] by writ of summons. On January 21, 

2014, [Appellee] filed his complaint against [Appellants] 

asserting counts for breach of contract; fraud; conversion; 

interference with a contractual relationship; and unjust 

enrichment. Therein, [Appellee] averred that on or about 

December 10, 2012, he and [Appellants] “entered into a 

commercial lease/purchase agreement in reference to the real 

property known as 1701-1717 North 2nd Street, Philadelphia, PA 

19122 (the “Lease Purchase Agreement”).” “Under Paragraph 

36 of the Lease Purchase Agreement,” [Appellee] asserted he 

“was granted an option to purchase the property and 

[Appellants] agreed to automatically accept his request to 

purchase the property pursuant to the terms stipulated under 

Paragraph 36 of the Lease Purchase Agreement.” 

In terms of exercising the option, [Appellee] asserted he 

exercised the option on or about August 6, 2013, which was 

acknowledged and accepted by [Appellants’] counsel on August 

27, 2013, but thereafter [Appellants] failed to cooperate in good 

faith to consummate the transaction. Rather, [Appellee] 

asserted on January 13, 2014, [Appellants] “wrongfully 

terminated the Lease Purchase Agreement by asserting that 

[Appellee] had not paid rent in December and January when in 

fact [Appellee] did pay the rent in December and the January 

rent was not yet due....” 

...

[Appellee] attached a copy of the lease agreement to [his] 

complaint. The lease, dated December 12, 2012, provided that 

one year after the commencement of the lease, monthly 

installments of rent were due “on the fifteenth (15th) day of each 

month.” The lease also provided at Paragraph 36, titled 
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“OPTION TO PURCHASE,” that [Appellee]: “shall have a first 

right option to purchase the property from [Appellants] during 

this lease. [Appellants] shall automatically accept the requested 

option to agree to the sale pursuant to the terms below and shall 

not have any basis for refusing the request from [Appellee]. 

On December 10, 2014, [Appellants] filed an answer to the 

complaint along with new matter and counterclaim. The first 

page of this filing contained a notice to defend rather than a 

notice to plead. 

...

[Appellee] did not file a reply to [Appellants’] new matter 

and counterclaim, and on June 10[,] 2015, the case proceeded 

to [a] bench trial before this court. At the trial, but prior to 

testimony being presented, [Appellants] raised for the first time 

the issue of [Appellee’s] failing to file a reply to [their] new 

matter and counterclaim, and suggested all of the allegations 

therein should be deemed admitted. The trial proceeded and 

[Appellants] ... again raised the issue in closings. At that time, 

defense counsel argued [Appellants] were not seeking a default 

judgment, but that every allegation in the new matter and 

counterclaim be deemed admitted. [Appellants] argued based 

on those admissions a judgment in their favor for possession of 

the property, for termination of the lease, and for rent and legal 

fees, and [that] a judgment in their favor for all of [Appellee’s] 

claims should be entered. 

Following the conclusion of the trial, this court issued 

findings of fact and conclusions of law from the bench, which 

were filed of record with the prothonotary on June 11, 2015. 

This court found the testimony of the attorney who represented 

[Appellee] in exercising the option very credible. This court 

found that the lease was unambiguous, and the option was 

clearly exercised, but [Appellants] failed to act in good faith to 

carry out that transaction. The court ordered [Appellants] [to] 

sell the property to [Appellee] for $800,000 per the terms of 

their agreement. The court also ordered [Appellee], who was 

still occupying the property, [to] pay [Appellants] rent of $500 

per month for April 2014 to the time of trial, at a total of $6,550. 

Trial Court Opinion (TCO), 11/6/15, at 1-5 (citations to the record and some 

internal brackets omitted). 
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On June 18, 2015, Appellants filed a timely motion for post-trial relief, 

in which they requested that the trial court vacate its findings in favor of 

Appellee. Appellants further sought relief in their favor in the amount of 

$6,500 for back rent, $12,500 in legal fees, and sought possession of the 

subject real property. After hearing oral argument on the motion, the trial 

court denied Appellants’ request for relief. 

On August 6, 2015, Appellants filed a notice of appeal, followed by a 

timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal.2 Appellants now present the following two issues 

for our review: 

1. Did the trial court incorrectly den[y] Appellants’ request that 

all of Appellants’ averments in the counterclaim and new 

matter be admitted as a result of Appellee’s failure to respond 

to the pleadings, irrespective of whether a notice to defend or 

notice to plead was attached to Appellants’ answer with 

counterclaim and new matter? 

2. Did the trial court incorrectly deny Appellants’ motion to 

dismiss Appellee’s complaint as a result of Appellee’s failure 

to respond to Appellee’s new matter and counterclaim, thus, 

allowing Appellee opportunities to defend against allegations 

of breach of a commercial lease agreement and possession of 

the real estate in question? 

Appellants’ Brief at 6 (unnecessary capitalization omitted). 

____________________________________________

2 We recognize that Appellants set forth seven issues within their Rule 

1925(b) statement; however, the trial court found that all of Appellants’ 

claims were waived except for the two issues raised herein. TCO at 9. 
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Initially, we are constrained to find that Appellants’ claims are waived 

due to their failure to ensure that the transcript from the July 9, 2015 

hearing on their post-trial motion for relief (hereinafter “July 9, 2015 hearing 

transcript”) was included in the record. “This Court cannot meaningfully 

review claims raised on appeal unless we are provided with a full and 

complete certified record.” Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. 

Super. 2006).3 Moreover, the law is unequivocal that it is Appellants’ 

responsibility to ensure that the certified record is complete in the sense that 

it contains all of the necessary materials for this Court to perform its duty. 

Id. Appellants have a duty under Pa.R.A.P. 1911, to order and pay for any 

transcript necessary to permit the resolution of the issues raised on appeal. 

Pa.R.A.P. 1911(a); see also Commonwealth v. Williams, 715 A.2d 1101, 

1105 (Pa. Super. 1998) (stating “Rule 1911 requires appellants to order all 

transcripts necessary for their appeals”). 

In the instant case, the certified record contains only the June 10, 

2015 trial transcript. However, the July 9, 2015 hearing transcript is 

essential for our meaningful review of Appellants’ claims, as the crux of the 

issues on appeal centers on Appellee’s failure to respond to the averments in 

Appellants’ new matter and counterclaim and the consequences thereof. 

____________________________________________

3

“The certified record consists of the ‘original papers and exhibits filed in the 

lower court, the transcript of proceedings, if any, and a certified copy of the 

docket entries prepared by the clerk of the lower court.’” Preston, 904 A.2d 

at 7. 
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The trial court expressly ordered the parties to be prepared to address these 

very issues at the July 9, 2015 argument on Appellants’ post-trial motion for 

relief. Hence, we are unable to adequately resolve this matter without 

reviewing the transcript from that hearing. 

The issue of the missing transcript was raised at the oral argument 

before this Court on August 9, 2016. It is Appellants’ burden to ensure that 

the certified record is complete; however, since that time, it appears that 

they have not made any effort to supplement the record.4 In the event that 

the appellant fails to conform to the rules, “[i]t is not proper for ... the 

Superior Court to order transcripts nor is it the responsibility of the appellate 

courts to obtain the necessary transcripts.” Preston, 904 A.2d at 7 

(internal citations omitted). Therefore, based on the omission of the July 9, 

2015 transcript, we deem Appellants’ claims waived.

Nevertheless, even if Appellants’ claims had not been waived, we 

would conclude that the issues are meritless. As we have previously stated: 

Our standard of review in equity matters is limited to 

determining whether the trial court committed an error of law or 

an abuse of discretion. The scope of review of a final decree in 

equity is limited and will not be disturbed unless it is 

unsupported by the evidence or demonstrably capricious.

____________________________________________

4

Pennsylvania Rule of Appellate Procedure 1931(d) directs the clerk of the 

trial court to provide the appellant with a copy of the list of record 

documents. Pa.R.A.P. 1931(d). If the appellant discovers that any 

documents have been omitted from the certified record, Rule 1926 sets forth 

the process to obtain a supplemental certified record to correct any 

omissions. Pa.R.A.P. 1926(b)(2).
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Coldren v. Peterman, 763 A.2d 905, 907-908 (Pa. Super. 2000). 

Moreover, we note that an appellate court is bound by the trial court’s 

findings of fact in an appeal stemming from a non-jury trial, unless those 

findings are not based on competent evidence. L.B. Foster Co. v. Charles 

Caracciolo Steel & Metal Yard, Inc., 777 A.2d 1090, 1092 (Pa. Super. 

2001). 

It is not the role of an appellate court to pass on the credibility 

of witnesses or to act as the trier of fact. In a non-jury trial, the 

factfinder is free to believe all, part, or none of the evidence, and 

the Superior Court will not disturb the trial court’s credibility 

determinations. Nonetheless, the trial court’s conclusions of law 

are not binding on an appellate court. This is so because it is 

the appellate court’s duty to determine whether the trial court 

correctly applied the law to the facts.

Id. at 1092-1093. 

Here, Appellants assert that Appellee’s failure to reply to their new 

matter and counterclaim should be deemed as an admission of the 

averments set forth therein, and consequently, that Appellee’s complaint 

should have been dismissed. Appellants’ Brief at 7-9. In response to 

Appellants’ motion for post-trial relief in which these same issues were 

raised, Appellee justified his lack of a response by noting that Appellants 

improperly attached a notice to defend to their new matter and 

counterclaim, rather than a proper notice to plead.5 Appellee relied on this 

____________________________________________

5

In accordance with the Pennsylvania Rules of Civil Procedure, no 

responsive pleading is required to be filed unless the preceding pleading 

contains a notice to defend or a notice to plead in compliance with the forms 

(Footnote Continued Next Page)
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error in denying that he was required to file a responsive pleading. 

Appellee’s Reply to Appellants’ Motion for Post-Trial Relief at 1-2. 

We discern that the trial court adequately addressed and disposed of 

Appellants’ claims in its July 9, 2015 order, where it stated: 

[E]ven in the presence “of the necessary notice to plead[,]” “the 

plaintiff need only reply to factual allegations in the counterclaim 

or new matter, and the plaintiff is under no obligation to respond 

to legal conclusions that may have been pled by the defendant,” 

and only properly pleaded facts in the new matter or 

counterclaim are to be deemed admitted where the plaintiff fails 

to reply to the defendant’s new matter or counterclaim. See 6 

Standard Pennsylvania Practice 2d § 30.12. Moreover, when a 

fact has been put at issue by the complaint and answer, there is 

no need to respond to it if it is also included in new matter or 

counterclaims. See Watson v. Green, 231 Pa. Super. 115, 118 

(1974). [“

]New matter and counterclaims properly contain 

averments of facts only if they are extrinsic to facts averred in 

the complaint.” Id. (emphasis added [by the trial court]). 

Trial Court Order, 7/9/15, at 1. The court then went on to explain:

Here, [Appellee] alleged in his complaint that: 

 19. Under Paragraph 4 of the lease, [Appellee] is 

obligated to pay monthly rent to [Appellants] 

commencing December 15, 2013 in the amount of 

$500.00 and the fifteenth day of each month 

thereafter.

 20. [Appellee] tendered the first payment of rent to 

[Appellees] in accordance with the Lease Purchase 

Agreement.

(Footnote Continued) _______________________

set forth under Rules 1018.1 and 1361, respectively. Pa.R.C.P. 1026(a). 

Rule 1018.1 sets forth the proper form of a notice to defend, which requires 

a response to a complaint. Pa.R.C.P. 1018.1. Rule 1361 provides the 

proper form of a notice to plead, which requires a response to all other 

pleadings subsequent to the complaint. Pa.R.C.P. 1361. 
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 21. On January 13, 2014, [Appellants] wrongfully 

terminated the Lease Purchase Agreement by 

asserting that [Appellee] had not paid rent in 

December and January when [Appellee] did pay the 

rent in December and the January rent was not yet 

due. 

In response, [Appellants] alleged in their answer that: 

 19. It is admitted that pursuant to the commercial 

lease agreement, [Appellee] is obligated to pay 

monthly rent in the amount of $500.00 per month. 

By way of further answer, [Appellee] had failed and 

refused to do so.

 20. It is specifically denied that any lease purchase 

agreement exists and strict proof to the contrary is 

demanded thereof. 

 21. Denied, on the contrary, [Appellants] properly 

terminated the commercial lease agreement, and 

therefore the option to purchase, and strict proof to 

the contrary is demanded.

Arguably, by virtue of their failure to specifically deny the factual 

averments in Paragraphs 20 and 21, it is [Appellants] whom 

should be deemed to have admitted that [Appellee] tendered 

December’s rent in accordance with the lease and that January’s 

rent was not yet due when they terminated the lease. But in 

any event, there was no need for [Appellee] to respond to 

averments [in Appellants’ counterclaim and new matter] such as 

“[i]n breach of the terms of the commercial lease agreement, 

[Appellee] has failed to pay rent for the period December 10, 

2013 through and including December 2014[,]” because the 

matter was clearly placed into issue by the complaint and 

answer. And as such, there is no basis to grant [Appellants’] 

motion for post-trial relief and deny [Appellee] specific 

performance.

Moreover, by the time [Appellee] had actually stopped paying 

rent in this case, [Appellants] had already materially breached 

the lease by their actions and inactions in terms of the option to 

purchase provision, which also provided that its terms and 

conditions “shall supercede [sic] any terms elsewhere in the 

agreement that is in conflict with these conditions[,]” (emphasis 

added [by trial court]), and by wrongfully terminating it. 
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Suspending payment of rent under such circumstances did not 

defeat [Appellee’s] right to specific performance and [Appellants] 

were more than made whole by the award of $6,500. 

Id. at 2 (internal citations and some quotation marks omitted). After careful 

review, we conclude that the court’s factual determinations are wellsupported by the record, and we would discern no abuse of discretion. 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016