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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HARRY J. LAFFERTY, MICHAEL D.

KIRN, ROBERT T. KIRN, JOHN J.

ROEDELL, JOHN M. FERRIS, ROBERT : F. FERRIS, & FACOWEE ACRES, LLC. : v.

THOMAS D. FERRIS

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2024 MDA 2018

Appellant

Appeal from the Order Entered November 28, 2018

In the Court of Common Pleas of Susquehanna County Civil Division at

No(s): 2008-1941 CP

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED: JULY 22, 2019

Thomas D. Ferris (Ferris) appeals from the November 28, 2018 order

entered in the Court of Common Pleas of Susquehanna County. After careful

review, we vacate.

In August 1998, Ferris and Appellees/Defendants created Facowee

Acres, LLC (Facowee Acres), a limited liability company. On October 4, 1998,

Ferris and his brother, Robert Ferris (Robert) (collectively, Brothers), executed

an agreement of sale for a 100 -acre parcel of land in Susquehanna County

(Property), with the intent that the land would be used as a hunting lodge for

members of Facowee Acres. Appellees and Ferris (collectively, Members)

comprised the membership of Facowee Acres. In December 1998, the

Brothers executed a mortgage on the Property; the property was deeded to

Former Justice specially assigned to the Superior Court.
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them as tenants -in -common. Each of the members of Facowee Acres orally

agreed to pay, over time, the mortgage and other related costs for the

Property. Upon payment in full by the Members, the Brothers would transfer

the Property to the members, who would then transfer the Property to

Facowee Acres.

In 2004, Ferris purchased a 4.4 -acre parcel adjacent to the Property

(Adjacent Property) in his own name. The members of Facowee Acres agreed

to reimburse Ferris the full purchase price of the Adjacent Property. Ferris

subsequently transferred title to the Adjacent Property to himself and his

brother, Robert. Over the years, Facowee Acres members used the Property

and Adjacent Property for hunting. Improvements were also made on the

Property. In October 2004, the deed to the Property and the deed to the

Adjacent Property were consolidated into one deed.'

In 2007, Ferris told the Members that he wanted to sell back his interest

in Facowee Acres. However, Ferris refused to convey the properties to the

Members, in accordance with their prior oral agreement. Further, without the

consent of the other members of Facowee Acres, the Brothers used the

Property and the Adjacent Property as collateral for a $125,000 equity line of

credit for their own benefit. Additionally, in August 2008, for an up -front

1- Over time, payments made by the Members were deposited into a bank

account owned by Robert. Expenses for the properties, including real estate

taxes and maintenance expenses, were paid from that account. All of the

Members, excluding Ferris, paid their respective shares of the mortgage and

related expenses. Lafferty v. Ferris, Nos. 1131 & 1619 MDA 2016 (Pa.

Super. filed Sept. 21, 2017), at 3.

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payment of $28,500, the Brothers executed a natural gas lease with

Chesapeake Appalachia, LLC (Chesapeake) for the Property and Adjacent

Property.

On December 23, 2008, Appellees initiated the instant action in equity

against Ferris seeking reformation of the deed to include their names; the

complaint also included counts for unjust enrichment, promissory estoppel,

and breach of contract. The complaint alleged that "[t]he members of

Facowee Acres, including but not limited to, defendant Thomas D. Ferris,

intended and agreed that subsequent to the purchase of the Property, the

Deed to Robert F. Ferris and Thomas D. Ferris would be reformed to reflect

the names of all of the members of Facowee Acres as owners of the Property."

Complaint, 12/23/08, at ¶ 21. Ferris filed an answer and counterclaim

averring that he is not a member of Facowee Acres, denying any oral

agreements existed in relation to reforming the deed to reflect Facowee Acres

as the true owner of the properties, and seeking "a fair and equitable partition

of the [Property and the Adjacent Property]." Ferris Counterclaim, 4/3/09, at

8.

Following a non -jury trial, the court entered an order determining that

an enforceable oral agreement existed between Ferris and Appellees.

Accordingly, on January 11, 2016, the court entered an order dismissing

Ferris's counterclaim and directing the Brothers execute a special warranty

deed conveying title to the Property and the Adjacent Property to Appellees

and Ferris, in their respective proportionate shares. Ferris was also ordered

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to pay any unpaid principal and interest in connection with the mortgage

within 30 days of the order, and the county prothonotary was directed to

"release all monies, principal and accumulated interest escrowed pursuant to

Court Order relating to this matter to Facowee Acres, LLC, Robert F. Ferris and

Thomas D. Ferris within (30) days of this Order." Order, 1/11/16, at ¶ 3.2

Finally, the order designated the respective interests of the parties with regard

to the special warranty deed and the oil and gas lease as follows: Lafferty

(1/9th); M. Kim (1/9th, -); Roedell (1/9th); John J. Ferris (1/9th); Ferris (1/9th);

R. Kim (1/9th); and Robert F. Ferris (3/9th).

On January 20, 2016, Ferris filed a post -trial motion for a new trial,

raising 40 claims of trial court error. On May 31, 2016, Appellees filed a

praecipe to enter judgment. See Pa.R.C.P. 227.4(b).3 On June 27, 2016, the

trial court entered an order denying Ferris's post -trial motions. On July 13,

2 The January 11, 2016 order also ordered the Brothers to "assign all their

stated interest in an oil and gas lease regarding the subject properties, leased

to Chesapeake Appalachia, L.L.C.[,] its successors and assigns, to the

grantees of the special warranty deed called for in paragraph 1 of this order

in their respective shares." Order, 1/11/16, at ¶ 4.

3 Unlike the Rules of Criminal Procedure which require a court to act within

120 days of the filing of the post -trial motion or it will be deemed denied by

operation of law, see Pa.R.Crim.P. 720(B)(3), the rules of civil procedure do

not provide a similar automatic mechanism. Rather, a party is required to

praecipe for entry of judgment to move the case forward where the court has

not decided the motion within 120 days after its filing.

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2016, Ferris filed a notice of appeal4 from the June 27, 2016 order.5 On August

18, 2016, while Ferris's appeal was pending, Appellees filed a motion to

enforce the trial court's January 11, 2016 order. In the motion, Appellees

alleged that "[g]iven the [c]ourt's decision recognizing the respective interest

of the Plaintiffs and the Defendant in the subject real estate . . ., distribution

of the monies, principal and accumulated interest escrowed to only Facowee

Acres, LLC, Robert F. Ferris and Thomas D. Ferris would be inconsistent with

the Order which recognizes the interests of Plaintiffs and Defendant[.]"

Plaintiffs' Motion to Enforce, 8/18/16, at '11 19. On August 23, 2016, the trial

court entered an order granting Appellees' motion to enforce.

On September 9, 2016, the court held a hearing on Appellees' motion

to enforce the judgment. At the hearing, Appellees' counsel again argued that

the court's January 11, 2016 order incorrectly directed that the monies be

distributed to three entities/people, rather than the full seven Facowee Acres

members. N.T. Motion to Enforce Hearing, 9/9/16, at 14. On September 16,

2016, the court entered an order again granting Appellees' motion to enforce,

but also modifying its January 11, 2016 order by requiring a general warranty

4 Lafferty v. Ferris, 1131 MDA 2016 (Pa. Super. filed July 13, 2016).

5 Appellees prematurely filed a notice of appeal on May 3, 2016, prior to the

disposition of Ferris's post -trial motions. Our Court quashed that appeal. See

Lafferty v. Ferris, No. 712 MDA 2016 (Pa. Super. filed June 14, 2016).

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deed be executed to transfer title of the property and adjacent property to

Facowee Acres. Ferris filed a notice of appeal6 from the August 23, 2016 and

September 16, 2016 orders. Our Court consolidated Ferris's two separate

appeals for ease of disposition. See Lafferty v. Ferris, Nos. 1131 & 1619

MDA 2016 (Pa. Super. filed Sept. 21, 2017) (unpublished memorandum).

On September 21, 2017, our Court concluded that the trial court lacked

jurisdiction to enter the August 23, 2016 and September 16, 2016 orders

where the trial court did not expressly grant reconsideration within 30 days

following its June 27, 2016 order denying Ferris's post -trial motion, and where

Ferris had already filed a notice of appeal divesting the trial court of

jurisdiction.7 Accordingly, we determined that the orders were void and

vacated them. Id. Appellees filed an unsuccessful motion for reargument in

this Court and unsuccessful petition for allowance of appeal with the Supreme

Court of Pennsylvania. See Lafferty v. Ferris, No. 878 MAL 2017 (Pa. filed

May 15, 2018) (order denying petition for allowance of appeal).

Appellees again orally moved to modify the trial court's January 11,

2016 order. After considering the parties' briefs on the issue, on November

28, 2018, the court granted the motion to modify, amending the third

paragraph of the January 11, 2016 order "to [now] direct that the

6 Lafferty v. Ferris, No. 1619 MDA 2016 (Pa. Super. filed Sept. 30, 2016).

Appellees filed a motion for reconsideration on August 18, 2016, titling it a

"Motion to Enforce." Again, this motion was over five months late and filed

while an appeal was pending. Accordingly, it does not cure the trial court's

lack of jurisdiction to modify the January 11, 2016 order.

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Susquehanna County Prothonotary release all natural gas royalty monies,

principal and interest, escrowed pursuant to court order to the parties

according to their respective interests as set forth in paragraph 7 of the

[court's] January 7, 2016 order." Trial Court Order, 11/28/18, at 411 2. On

December 17, 2018, Ferris filed a motion to reconsider that was denied two

days later. Ferris filed timely notice of appeal and court -ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

On appeal, Ferris raises the following issues for our consideration:

(1) Did the trial court commit reversible error[] by granting a

modification of its order entered January 11, 2016[,] when

the trial court had already granted in substance the same

exact modification by orders of court entered on August 23,

2016 and September 16, 2016[,] and when the Superior

Court of Pennsylvania vacated the trial court's orders of

August 23, 2016[,] and September 16, 2016[,] after the

Superior Court determined that the trial court did not have

jurisdiction to make the subject modification?

(2) Did the trial court commit reversible error[] by granting a

modification of its order entered on January 11, 2016[,]

after [the] judgment [became] final and when no timely

motion for post -trial relief or for reconsideration was filed

seeking modification as ordered by the trial court in its order

entered on November 28, 2018, and there were no

circumstances present in this case that would amount to

sufficient cause to trigger application of the exceptional

circumstances/extraordinary cause doctrine?

Did the trial court commit reversible error[] by granting a

modification of its order entered on January 11, 2016[,]

when the trial court had already granted in substance the

same exact modification by orders of court entered on

August 23, 2016 and September 16, 2016[,] and when the

propriety of the trial court's attempted modification was

extensively litigated at the trial court level, before the

Superior Court of Pennsylvania[] and the Supreme Court of

(3)

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Pennsylvania, and the modification was determined to be

improper by both appellate courts?

Appellant's Brief, at 3-4.

In his brief, Ferris claims that the trial court improperly modified its

January 11, 2016 order where the court lacked jurisdiction to alter the order,

as no timely post -trial motion or motion for reconsideration was filed and

granted. We agree.

Throughout the course of post -trial proceedings, Appellees have

repeatedly asserted that the trial court's January 11, 2016 order erroneously

directed that the payment of escrowed natural gas royalty monies be divided

evenly among Facowee Acres, LLC, Robert Ferris and Thomas Ferris8 rather

than to all members, consistent with their specific interest in the proceeds. In

an attempt to address this concern, the trial court modified its original January

11, 2016 order on August 23, 2016, September 16, 2016, and again on

November 28, 2018.

It is well -established that a court may modify or rescind any order within

30 days after its entry, if no appeal has been taken. See Pa.R.A.P. 1701; 42

Pa.C.S. § 5505. However, a trial court may not ordinarily modify an order

beyond the thirtieth day after its entry, except as otherwise provided by law.

8 In the original January 2016 order, paragraph 3 reads:

3. The Susquehanna Prothonotary release all monies, principal

and accumulated interest escrowed pursuant to Court Order

relating to this matter to Facowee Acres, LLC, Robert F. Ferris and

Thomas D. Ferris within (30) days of this Order.

Trial Court Order, 1/7/16.

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Pursuant to Pa.R.A.P. 1701:

(a) General rule. Except as otherwise prescribed by these rules,

after an appeal is taken or review of a quasijudicial order is

sought, the trial court or other government unit may no longer

proceed further in the matter.

(b) Authority of a trial court or agency after appeal. After an

appeal is taken or review of a quasijudicial order is sought, the

trial court or other government unit may:

(1) Take such action as may be necessary to preserve the

status quo, correct formal errors in papers relating to

the matter, cause the record to be transcribed, approved,

filed and transmitted, grant leave to appeal in forma

pauperis, grant supersedeas, and take other action

permitted or required by these rules or otherwise ancillary

to the appeal or petition for review proceeding.

(2) Enforce any order entered in the matter, unless the

effect of the order has been superseded as prescribed in this

chapter.

(3) Grant reconsideration of the order which is the

subject of the appeal or petition, if:

(i) an application for reconsideration of the order is

filed in the trial court or other government unit within

the time provided or prescribed by law; and

(ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these

rules for the filing of a notice of appeal or petition for

review of a quasijudicial order with respect to such order, or

within any shorter time provided or prescribed by law for

the granting of reconsideration.

Pa.R.A.P. 1701 (emphasis added).

Courts have interpreted the above -bolded language of Rule 1701(b)(1)

to include corrections that are technical, non -substantive amendments to an

order that have no effect on the appeal or petition for review and cannot

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prompt a new appealable issue. Pennsylvania Industrial Energy Coalition

v. Pennsylvania Public Utility Commission, 653 A.2d 1336, 1344 (Pa.

Cmwlth. 1995). See Fish v. Gosnell, 463 A.2d 1042, 1052 (Pa. Super. 1983)

(court's molding of verdict on thirty-sixth day after entry of judgment to reflect

pre -award interest under Pa.R.C.P. 238 was proper correction of formal error

under Rule 1701; court's action did not require exercise of discretion,

computation was clerical matter based on face of record, and no fact finding

required); see also Manack v. Sandlin, 812 A.2d 676 (Pa. Super. 2002)

(trial court had authority under Rule 1701 to change date of non -jury trial and

verdict on order to reflect correct date after thirty days elapsed from entry of

original order and where appeal had been filed). The Note to Rule 1701 further

explains that subsection (b)(1) is intended to "set[] forth an obvious power of

the lower court . . . under these rules to take actions to preserve the status

quo and to clarify or correct an order or verdict. The power to clarify or correct

does not extend to substantive modifications." Pa.R.A.P. 1701, Note to

Subdivision (b)(1) (citing examples of permissible actions under Rule

1701(b)(1) as "non -substantive technical amendments to an order, changes

in the form of a decree, and, modification of a verdict to add prejudgment

interest").

Here, Appellees failed to challenge the subject language in the court's

January 11, 2016 order in a timely motion to reconsider after filing their notice

of appeal. Moreover, the requested modification is more than a mere

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correction or clarification, but rather amounts to a substantive alteration.

Thus, the trial court lacked jurisdiction to modify the order under Rule 1701.

In addition to Rule 1701, section 5505 of our Judicial Code also sets

forth rules regarding modification of orders. Section 5505 states:

Except as otherwise provided or prescribed by law, a court upon

notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any

term of court, if no appeal from such order has been taken or

allowed.

42 Pa.C.S.A. § 5505. Despite the general prohibition to modify orders after

the appeal period has expired, courts have permitted modification under

section 5505 in the following circumstances: extrinsic fraud; lack of

jurisdiction over subject matter; fatal defect apparent on face of record; or

some other evidence of "extraordinary cause justifying intervention by the

court." ISN Bank v. Rajaratnam, 83 A.3d 170, 172 (Pa. Super. 2013).

Extraordinary cause has been defined as "an oversight or action on the part

of the court or the judicial process which operates to deny the losing party

knowledge of the entry of final judgment so that the commencement of the

running of the appeal time is not known to the losing party." Luckenbaugh

v. Shearer, 523 A.2d 399, 401 (Pa. Super. 1987).

There is nothing to support a finding of extrinsic fraud, lack of subject

matter jurisdiction, or a fatal defect apparent on the face of the record in the

instant case. Moreover, there is no extraordinary cause to justify the court's

intervention. Thus, like our prior Superior Court panel concluded, the trial
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court was without jurisdiction to modify its January 11, 2016 order.

Accordingly, we find the November 28, 2018 order void and must vacate it.9

Order vacated. Jurisdiction relinquished.

Judgment Entered.

1--7 Jseph D. Seletyn,

Prothonotary

Date: 7/22/2019

9 The law of the case doctrine further supports our decision today. In

Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995), our Supreme Court

stated:

Departure from either the law of the case doctrine or the

coordinate jurisdiction rule is allowed only in exceptional

circumstances such as where there has been an intervening

change in the controlling law, a substantial change in the facts or

evidence giving rise to the dispute in the matter, or where the

prior holding was clearly erroneous and would create a manifest

injustice if followed.

Id. at 1332. Instantly, there was no intervening change in the law or any

change in the facts or evidence in the case since our Court's decision in

September 2017. Moreover, our Court's prior holding was not erroneous.

Id. Thus, we are precluded from altering the determination of a prior panel

of our appellate court.

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