[J-15-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

LEO J. DOLAN, JR. AND CHERIE M. 

DOLAN, H/W

v.

HURD MILLWORK COMPANY, INC., 

BENTLEY HOMES, LTD., GARVIN 

MITCHELL CORPORATION, CHADWELL 

ASSOCIATES, L.P., CHADWELL 

REALTY, INC., HARRISON COMMUNITY 

ASSOCIATION

APPEAL OF: LEO J. DOLAN, JR.

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No. 51 MAP 2017

Appeal from the Order of the Superior 

Court at No. 2951 EDA 2015 dated 

February 17, 2017 Vacating the 

Judgment of the Delaware County 

Court of Common Pleas, Civil 

Division, entered August 26, 2015 at 

No. 2005-005801 and Remanding for 

New Trial.

ARGUED: May 16, 2018

OPINION

JUSTICE MUNDY DECIDED: October 17, 2018

In this appeal by permission we consider the proper role of an appellate court when 

reviewing a non-jury decision where it deems the trial court’s opinion pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(a) inadequate, but the trial judge is no 

longer available to provide a supplemental opinion.

In 1999, Appellant Leo Dolan, Jr. and Cherie M. Dolan1 entered into an agreement 

of sale with Bentley Homes, Ltd., Garvin Mitchell Corporation, Chadwell Associates, L.P., 

Chadwell Realty, Inc. and Harrison Community Association (hereinafter “Bentley”) for a 

 

1 Appellant and Cherie M. Dolan were divorced while this matter was pending in the trial 

court. Ms. Dolan is not a party to this appeal.
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new custom house at the purchase price of $1,941,669.00. Settlement took place on 

November 10, 2000. Hurd Millwork Company, Inc. (Hurd) provided many of the windows 

used in the construction of Appellant’s home. Within a year, the house developed 

substantial defects, including air and water leaks around the windows.

On April 5, 2001, Hurd filed an action against Bentley for unpaid invoices related 

to the construction of Appellant’s home and other homes in the same development. 

Bentley filed a counterclaim against Hurd for providing defective windows. In October 

2002, Bentley and Hurd entered into a settlement containing admissions that numerous 

homes in the development suffered from extensive defects and leaks.

During the pendency of the litigation between Hurd and Bentley, Appellant 

experienced additional problems with his home including severe leaks, rotted wood and 

issues with a stucco wall. Bentley made some repairs to the home, but the leaks 

continued to worsen. Appellant hired a civil engineer to assess the home and determine 

what repairs were required to fix the problems with the house. The repairs and associated 

costs amounted to $826,695.99.

On May 24, 2005, Appellant filed a writ of summons against Bentley and Hurd. On 

September 6, 2005, Appellant filed a complaint against Bentley raising the following 

claims: (1) negligence; (2) breach of express and implied warranty; (3) negligent 

misrepresentation; (4) fraud and/or intentional misrepresentation; and (5) violations of the 

Unfair Trade Practice and Consumer Protection Law (UTPCPL). The complaint sought 

punitive damages against Bentley. The complaint also raised the following claims against 

Hurd: (1) breach of express and implied warranty; (2) negligence; and (3) products 

liability. On November 4, 2005, Bentley filed preliminary objections, which the court 

overruled on February 2, 2006. Bentley then filed an answer, new matter and cross-claim 
[J-15-2018] - 3

against Hurd on March 1, 2006. Bentley’s cross-claim alleged Hurd was solely or jointly 

liable for Appellant’s injuries.

On March 2, 2006, Hurd filed an answer to Bentley’s cross-claim. Hurd then filed 

a separate answer and new matter to Appellant’s complaint on March 13, 2006, and a 

cross-claim against Bentley, which alleged that Bentley was solely or jointly liable for 

Appellant’s injuries. Bentley filed an answer to Hurd’s cross-claim on March 14, 2006. 

Bentley filed joinder complaints against other parties involved in the construction of 

Appellant’s home. Following settlement discussions, the joined defendants were 

dismissed from the case, and a settlement agreement was reached between Appellant 

and Hurd.

The case proceeded to a non-jury trial before Judge James F. Proud on January 

6, 2015.2 Prior to the commencement of testimony, Appellant and Bentley agreed to the 

defective nature of the Hurd windows used in the construction of Appellant’s house. 

Appellant then presented evidence supporting his claims against Bentley. Bentley did not 

present any evidence to rebut Appellant’s claims. At the conclusion of trial, the court took 

the matter under advisement. The parties filed proposed findings of fact and conclusions 

of law on May 20, 2015. On June 18, 2015, the court entered a general verdict in favor 

of Appellant and awarded him $500,000 in damages. 

On June 26, 2015, Bentley filed a motion for post-trial relief, and Appellant filed a 

motion for delay damages on June 30, 2015. On August, 19, 2015, the court denied 

 

2 Appellant asserts that Bentley waived its cross-claim against Hurd. In support of this 

contention he cites to a letter from Bentley’s counsel to Judge Proud dated December 1, 

2014, stating that the Bentley entities “do not intent [sic] to present claims against any 

third parties at trial.” Appellant’s Brief, at 8. Bentley did not present any evidence 

regarding a cross-claim against Hurd, and the trial court made no mention of a crossclaim in its verdict.
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Bentley’s motion for post-trial relief. On August 21, 2015, the court granted Appellant’s 

motion for delay damages and molded the verdict to $748,287.67.

Bentley filed a timely appeal to the Superior Court. The trial court did not order the 

filing of a concise statement of errors complained of on appeal, and none was filed. On 

October 21, 2015, Judge Proud issued a three-page opinion stating, inter alia, that the 

verdict was against Appellees “jointly and severally.” Trial Ct. Op., 10/21/15, at 1. The 

opinion stated that “[t]he evidence in this case was overwhelmingly in favor of [Appellant]. 

In fact, [Bentley] presented no evidence whatsoever as either defendants or cross-party 

plaintiffs.” Id. at 1-2. The court continued that “[t]he verdict made a general finding as to 

liability and disposed of all claims presented.” Id. at 2. The opinion notes that Appellant’s 

negligence claims were not barred by the gist of the action doctrine “because such claims 

were based on the breach of the social duty imposed by the law of torts and not a breach 

of a duty created by the underlying contract.” Id. The court also concluded that the award 

of delay damages was appropriate.

In its brief to the Superior Court, Bentley raised the following statement of 

questions involved:

1. Whether a party is precluded as a matter of law from 

obtaining damages for negligence where that claim is barred 

by the gist of the action doctrine, the economic loss doctrine, 

and the statute of limitations.

2. Whether a plaintiff is precluded as a matter of law from 

obtaining damages for breach of express and implied 

warranties where those claims cannot be maintained against 

the named defendants, are barred by the statute of limitations, 

plaintiffs failed to present evidence of the terms of the express 

warranties at trial, and plaintiffs failed to give the opportunity 

to repair or notice of the defects for which the party now seeks 

an award of damages.

3. Whether a party is precluded as a matter of law from 

obtaining damages for negligent misrepresentation and 
[J-15-2018] - 5

fraud/intentional misrepresentation where those claims are 

barred by the gist of the action doctrine, the economic loss 

doctrine, and the statute of limitations.

4. Whether a party is precluded as a matter of law from 

obtaining an award of punitive damages where Pennsylvania 

law does not recognize an independent cause of action for 

punitive damages and none of the claims can support a claim 

for punitive damages.

5. Whether a party is precluded as a matter of law from 

obtaining damages under the [UTPCPL] where that claim can 

be maintained, if at all, only against the seller and the 

fraudulent or deceptive conduct upon which the claim is based 

occurred, if at all, after the purchase of the real property at 

issue.

6. Whether a party is precluded as a matter of law from 

obtaining an award of damages where by the party’s own 

admission, the party failed to mitigate its damages and 

rendered it impossible for the Court to determine the proper 

amount of damages to award a party.

7. Whether a party is precluded as a matter of law from 

obtaining an award of damages for breach of contract where 

the party never [pled] such a claim, did not seek leave at trial 

to amend to include such a claim, and any such claim is 

barred by the statute of limitations.

8. Whether a defendant is entitled to an award of 

indemnification and/or contribution against a co-defendant 

where the evidence is clear that the co-defendant’s conduct 

caused the injury to the plaintiff and the basis of the 

defendant’s liability to the plaintiff is due to the co-defendant’s 

conduct.

9. Whether a party is precluded as a matter of law from 

obtaining delay damages where the underlying action is 

based upon the contractual relationship of the parties to the 

litigation and delay damages are not available in contract 

actions.

Bentley’s Superior Court Brief, 2951 EDA 2015, at 5-7.
[J-15-2018] - 6

On January 13, 2017, a panel of the Superior Court issued a memorandum 

decision noting that the trial court opinion was inadequate to allow effective appellate 

review. The court stated:

“The purpose of Rule 1925(a) is to give the appellate court a 

reasoned basis for the trial court’s decision and to require a 

trial court to consider thoroughly decisions regarding post-trial 

motions.” Gibbs v. Herman, 714 A.2d 422, 435 (Pa. Super, 

1998). “Ordinarily, the remedy for non-compliance with [Rule] 

1925(a) is a remand to the trial court with directions that an 

opinion be prepared and returned to the appellate court.” 

Cooke v. Equitable Life Assurance [Soc’y] of the United 

States, 732 A.2d 723, 727 (Pa. Super. 1999).

Dolan v. Hurd, No. 2951, unpublished memorandum at 7 (Pa. Super. filed 1/13/17). 

Accordingly, the Superior Court remanded to the trial court for a supplemental opinion 

addressing six specific issues.3 The panel retained jurisdiction.

On January 25, 2017, President Judge Chad F. Kenney of the Delaware County 

Court of Common Pleas sent a Response to Remand to the Superior Court explaining 

that Judge Proud had retired. President Judge Kenney noted that because the issues on 

remand could only be addressed by Judge Proud, he was returning the record to the 

Superior Court and would await further instruction on how to proceed.

 

3 The Superior Court noted:

The court’s supplemental opinion must (1) state which of [Dolan’s] claims 

warranted relief; (2) provide a detailed explanation for why the court ruled 

in favor of [Dolan] on those claims; (3) explain what type of damages it 

awarded [Dolan]; (4) specify the amount of each type of damages awarded; 

(5) state whether the court found in favor of or against [Bentley] on their 

cross-claim against Hurd; and (6) provide a detailed explanation for the 

court’s denial of each issue raised in [Bentley’s] motion for post-trial relief.

Dolan, supra at 7 (emphasis in original).
[J-15-2018] - 7

On February 17, 2017, the panel issued a memorandum noting that without further 

explanation from the trial court it was unable to address the issues raised on appeal. It 

held, “[t]herefore, the best resolution of this appeal is to vacate the judgment and remand 

for a new trial on liability and damages.” Super. Ct. Op., 2/17/17, at 9. In a footnote the 

Court stated, “[t]he unforeseen circumstances surrounding the resolution of this appeal 

put the parties in a unique position that could inspire and motivate a settlement.” Id. at 

n.2.

We granted allowance of appeal to consider the appropriate role of the appellate 

court under these circumstances and to determine the scope and standard of review to 

apply if the appellate court is required to reach the merits of the trial court’s decision.

Appellant and Bentley agree that the Superior Court erred by remanding the case 

for a new trial rather than performing an independent review of the record. They both 

recognize the relevance of this Court’s decision in Armbruster v. Horowitz, 813 A.2d 698 

(Pa. 2002), but disagree as to whether Armbruster controls the instant matter or merely 

informs our disposition.

The relevant background of Armbruster is as follows. In January 1995, Charles 

Armbruster brought a malpractice action against his dentist, Dr. David Horowitz. The 

matter proceeded to trial before the Court of Common Pleas of Lackawanna County, and 

on November 20, 1997, the jury returned a defense verdict finding that Dr. Horowitz was 

negligent, but that his negligence was not a substantial factor in bringing about 

Armbruster’s harm. On December 1, 1997, Armbruster filed a timely post-trial motion 

asserting that the jury verdict was against the weight of the evidence. Following the 

issuance of orders regarding the transcription of notes of testimony, no activity took place 

on the docket until the trial judge resigned from the bench on October 26, 1998 to assume 

the position of federal district court judge. On October 28, 1998, Dr. Horowitz filed an 
[J-15-2018] - 8

answer to the post-trial motion and a praecipe for judgment on the jury verdict because 

more than 120 days had elapsed since the filing of the post-trial motion. See Pa.R.C.P. 

227.4. On October 29, 1998, the prothonotary entered judgment and Armbruster filed an 

appeal to the Superior Court, again alleging that the verdict was contrary to the weight of 

the evidence. 

On appeal, the Superior Court held that in the exceptional circumstance of a judge 

leaving the bench without ruling on a post-trial weight of the evidence claim, an appellate 

court could review the claim. Turning to the merits, the majority held that no relief was 

warranted. This Court granted allocatur “to determine the proper role of an appellate 

court in reviewing a preserved weight of the evidence claim where the trial judge did not 

pass on the question and is no longer available to pass on it.” Armbruster, 813 A.2d at 

702. In affirming the Superior Court, we stated:

If we were to conclude that an appellate court is totally barred 

from entertaining a weight claim in the first instance, then, in 

a situation such as the case sub judice, where the actual trial 

judge is unavailable to rule upon the claim, we would be left 

to choose between two extreme and unpalatable courses: (1) 

a rule automatically requiring the grant of a new trial for any 

properly preserved weight claim; or (2) a rule rendering such 

claims automatically unavailable to the parties in these 

instances. The former course would be extremely disruptive 

to the integrity of verdicts and to the judicial process. As we 

have noted above, there is some obvious tension between the 

broad, settled, exclusive role of the fact-finder in assessing 

credibility and the limited power of trial judges, in narrowly 

circumscribed circumstances, to overturn those assessments 

when the judicial conscience is not merely disappointed, or 

uncomfortable, but “shocked.” To automatically require a new 

trial in all instances where the trial judge becomes unavailable 

to rule upon a post-verdict challenge to the weight of the 

evidence reverses the presumption that credibility is for the 

fact-finder, makes the extraordinary the ordinary, and wrongly

intrudes upon the jury function.

. . .
[J-15-2018] - 9

The second extreme course-i.e., a rule that appellate courts 

cannot pass upon a weight claim in the first instance where 

the trial judge is unavailable, and thus the claim cannot be 

pursued on appeal-is not a fair accommodation of the 

competing interests either. Litigants should not, through no 

fault of their own, have the arsenal of appellate claims 

available to them diminished due to factors entirely beyond 

their control.

Given the obvious deficiencies in either of the extreme 

courses, we agree with the Superior Court majority below that, 

where a properly preserved weight of the evidence claim is 

raised on appeal and the judge who presided at trial failed to 

rule on the claim and is now permanently unavailable to do 

so, the claim must be reviewed by the appellate tribunal in the 

first instance.

Id. at 704-05 (emphasis in original).

The Superior Court has issued several decisions relying on Armbruster that 

Appellant asserts are inconsistent with the court’s resolution of the instant matter. In 

Hartner v. Home Depot USA, Inc., 836 A.2d 924 (Pa. Super. 2003), a jury awarded the 

plaintiff $1,000,000 for knee injuries she sustained while pushing a shopping cart in a 

parking lot and hitting a raised manhole covered by water.4 Home Depot filed post-trial 

motions which were assigned to the trial judge who retired before ruling on them. A newly 

assigned judge set a hearing, prior to which the plaintiff filed a praecipe for judgment 

pursuant to Pa.R.C.P. 227.4(1)(b) because no decision had been rendered within 120 

days of the filing of post-trial motions. Although the trial court lost jurisdiction due to the 

entry of judgment, the newly assigned trial judge prepared an opinion pursuant to 

Pa.R.A.P. 1925(b), which the Superior Court deemed advisory. The court rejected Home 

Depot’s argument that the entry of judgment under Rule 227.4(1)(b) denied it due process 

by preventing a “proper and complete ruling” by the trial court. Hartner, 836 A.2d at 927. 

 

4 The verdict was reduced to $950,000 because the jury found the plaintiff five percent 

negligent.
[J-15-2018] - 10

However, the Superior Court noted that the newly appointed judge would not have had 

the benefit of hearing the evidence, and that pursuant to Armbruster the Superior Court

could review the record and “provide as proper and as complete a ruling as the 

‘substituted’ trial judge could have provided.” Id. at 928. The Superior Court proceeded 

to consider Home Depot’s weight of the evidence claim, determined that the award of 

$1,000,000 shocked its conscience, and remanded for a new trial on damages only. 

In Estate of Smaling, 80 A.3d 485 (Pa. Super. 2013), the orphans’ court issued an 

opinion and order denying a widow’s petition seeking to probate an after-discovered will. 

The widow filed an appeal to the Superior Court and a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal, which for the first time raised weight of the evidence 

issues. Due to the retirement of the original judge, the matter was assigned to a second 

judge who issued a Rule 1925(a) statement that did not address the issues raised in the 

Rule 1925(a) statement. Instead, the second judge attached to his Rule 1925(a) 

statement a copy of the original judge’s opinion in support of her order. The Superior 

Court concluded that because Orphans’ Court Rule 7.1 does not require the filing of posttrial motions to preserve a claim for appeal, the widow was entitled to have her weight 

claims reviewed in the first instance. Relying on Armbruster, the Superior Court 

concluded that “because [the widow] properly preserved her weight of the evidence claim 

and [the original orphans’ court judge] is permanently unable to review it, we will do so 

here.” Smaling, 80 A.3d at 493. Following a thorough review of the record, the Superior 

Court affirmed the decree of the orphans’ court.

In Commonwealth v. Izurieta, 171 A.3d 803 (Pa. Super. 2017), a defendant was 

found guilty of several offenses following a jury trial. Because the presiding jurist left the 

bench before sentencing, a second judge was appointed to decide post-sentence 

motions, including a weight of the evidence challenge, and to impose sentencing. After 
[J-15-2018] - 11

the second judge denied the post-trial motions and imposed sentence, the defendant 

appealed to the Superior Court, which rejected a request that it vacate the defendant’s

conviction and remand for a new trial because the trial judge was unable to review his 

weight of the evidence claim. Relying on Armbruster, the court concluded that a new trial 

was inappropriate under the circumstances. However, it recognized that “the successor 

judge’s opinion should not be afforded the level of discretion given to a judge who 

presided at the trial in question. The successor judge . . . did not have the opportunity to 

observe the trial proceedings, and he is therefore in no different position, in terms of the 

‘cold’ record than this Court.” Id. at 808-09. Therefore, instead of applying a discretionary 

standard of review as an appellate court usually does when reviewing a challenge to a 

weight of the evidence decision, “our role . . . is to review the entire record and determine 

whether the successor judge correctly determined that the jury’s verdict was not against 

the weight of the evidence.” Id. at 809. Upon review of the testimony and the record, the 

Superior Court affirmed the trial court.

Appellant asserts that the instant matter:

is governed by the Armbruster rule. The fact that the Superior 

Court has alleged that the trial judge’s opinion was inadequate 

to the point where they could not provide judicial review is 

tantamount to that opinion having never been authored. This 

logical interpretation of judicial precedents evinces that in the 

present case, where the trial judge is now retired and 

unavailable, the Superior Court should have reached the 

merits of the case by reviewing the complete record in the first 

instance. 

Appellant’s Brief, at 23. Because Armbruster is limited to cases where the trial judge is 

unavailable to rule on weight of the evidence claims, Armbruster and its progeny do not 

compel broad “merits review of the case.” However, Armbruster does provide a 
[J-15-2018] - 12

framework to decide the instant matter, in which Bentley’s appeal to the Superior Court 

raises legal rather than factual issues.

In Armbruster, this Court recognized that requiring a new trial where the lower court 

failed to rule on post-trial motions raising a challenge to the weight of the evidence was 

an unfair result. Applying the reasoning of Armbruster to this case we conclude that 

where a Rule 1925(a) opinion is deemed inadequate and the trial judge is unavailable to 

provide a supplemental opinion, the appellate court should review the legal issues raised 

in the appellant’s Rule 1925(b) statement of errors complained of on appeal. As the 

Superior Court has noted, when deciding issues of law an appellate court is not required 

to defer to the conclusions of a trial court. Cooke v. Equitable Life Assurance Soc’y of 

the United States, 723 A.2d 723, 727 (Pa. Super. 1999). This is consistent with the fact 

that for questions of law, an appellate court’s standard of review is de novo and its scope 

of review is plenary. Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017). Applying this 

standard and scope, the Superior Court will be able to review the entire record and 

ultimately determine whether the trial court correctly decided the legal issues raised in 

Bentley’s appeal. 

As to any factual findings implicated in the issues raised on appeal from the nonjury 

trial, the Superior Court shall determine whether they are supported by competent 

evidence. See De Lage Landen Financial v. M.B. Management, 888 A.2d 895, 898 (Pa. 

Super. 2005).

Accordingly, the order of the Superior Court is reversed and the matter is 

remanded for disposition consistent with this opinion.

Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty and Wecht join 

the opinion.