J-A19007-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN FIRELY AND HOLLY FIRELY, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

RALPH B. WARNER, IV, DANIEL 

GLENNON AND ROBERT SEVILLE, 

TRUSTEES FOR ADAM WARNER,

Appellants No. 3415 EDA 2016

Appeal from the Judgment Entered December 9, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 09-32019

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

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 26, 2017

Appellants, Ralph B. Warner, Daniel Glennon and Robert Seville, 

Trustees for Adam Warner, appeal from the judgment entered on December 

9, 2016, against Appellants and in favor of Appellees, John Firely and Holly 

Firely, in the amount of $70,000.00.1 After careful review, we affirm. 

____________________________________________

1 Appellants purport to appeal from the October 3, 2016 order denying their 

post-trial motion. Ordinarily, an appeal properly lies from the entry of 

judgment, not from the order denying post-trial motions. See Johnston 

the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511 (Pa. Super. 

1995). Nevertheless, a final judgment entered during pendency of an 

appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull 

Equipment and Supply, Co., 787 A.2d 1050, 1052 n.1 (Pa. Super. 2001). 

Here, Appellants filed a notice of appeal prematurely on October 25, 2016, 

prior to the entry of judgment. However, the record reflects that judgment 

was entered on December 9, 2016. In accordance with the Pennsylvania 

Rules of Appellate Procedure, we treat Appellants’ notice of appeal as if it 

(Footnote Continued Next Page)
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The trial court provided the following summary of the relevant facts 

and procedural history of this case in its Pa.R.A.P. 1925(a) opinion: 

[O]n November 7, 2008, [Appellees] offered to purchase the 

subject property from the above-captioned [Appellants], for the 

purchase price of $700,000.00. In furtherance thereof, 

[Appellees] placed $70,000[.00] in escrow as a deposit. Both 

parties were represented by realtors. 

On December 3, 2008, [Appellees] signed the Agreement 

of Sale [(“Agreement”)]; [Appellants] executed the same on 

December 9, 2008. 

On December 13, 2008, [Appellees] initiated and executed 

the Agreement with the addenda, and forwarded, via e-mail, a 

fully executed copy of the Agreement to [Appellees’] realtor that 

same day. The Agreement ... at issue is a standard agreement 

of sale for real estate, approved and recommended by the 

Pennsylvania Association of Realtors. 

The aforementioned Agreement required a fifteen (15) day 

water and sewer inspection contingency period. The “start date” 

for inspections began on December 14, 2008. At trial, the 

parties disputed how to calculate the fifteen (15) days from that 

date. 

[Appellees’] contractor inspected the well and septic 

systems and indicated that the septic system was unsatisfactory, 

and that the well water did not meet established portability 

standards. 

Therefore, on December 29, 2008, [Appellees’] realtor, 

Kristin Smith [(“Ms. Smith”)], e-mailed [Appellants’] realtor, 

Thomas McCabe [(“Mr. McCabe”)], and indicated that neither the 

well nor the septic systems passed inspection, and that 

[Appellees] were not willing to go forward with the purchase 

unless [Appellants] were willing to negotiate the septic issue. 

(Footnote Continued) _______________________

were filed after the entry of judgment and on the date thereof. See 

Pa.R.A.P. 905(a)(5). Hence, the instant appeal is properly before this Court. 
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On January 2, 2009, [Mr. McCabe] e-mailed [Ms. Smith] 

and indicated that [Appellants] were not willing to repair the 

septic system. On January 6, 2009, [Appellees] signed a Notice 

of Termination of Agreement of Sale and Agreement of Sale 

Release and Distribution of Deposit Money. At that point, 

[Appellants] did not sign the release. Instead[,] the parties’ 

realtors continued to negotiate up until February 4, 2009, in an 

attempt to purchase the subject property. 

Ultimately, the parties failed to come to an agreement, and 

[Appellees] did not purchase the property. [Appellants] refused 

to return [Appellees’] deposit monies. 

On October 15, 2009, [Appellees] filed suit against 

[Appellants,] seeking back their $70,000.00 deposit under the 

Agreement. 

On December 21, 2009, [Appellants] filed an answer, new 

matter[,] and counterclaim to [Appellees’] complaint. The 

counterclaim sought a declaratory judgment that [Appellees] 

breached the agreement and were in default (count I); specific 

performance to retain the deposit monies under the agreement 

(count II); mitigated damages on the sale to the third party 

(count III); and, incidental and consequential damages caused 

by the property being vacant when the deal terminated (count 

IV). The trial court precluded [Appellants] from pursing [sic] 

count IV for incidental and consequential damages at trial. 

In May of 2013, [Appellants] sold their property for 

$425,000.00[,] to a third party. In the interim, [Appellants] had 

negotiated with several other potential buyers, and had entered 

into several agreements of sale, which never came to fruition. 

[Appellants] also leased the property for a portion of time prior 

to sale. 

On September 29, 2016, after a bench trial on the matter, 

the trial court found in favor of [Appellees] and against 

[Appellants], and awarded [Appellees] their $70,000.00 deposit 

back. With reference to [Appellants’] counterclaim, the trial 

court found against [Appellants]. 

On November 28, 2016, the trial court denied [Appellants’] 

motion for post-trial relief. 
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Trial Court Opinion (“TCO”), 1/24/17, at 1-3 (citations to record and 

unnecessary capitalization omitted). 

On October 25, 2016, Appellants filed a timely notice of appeal, 

followed by a timely, court-ordered Rule 1925(b) concise statement of errors 

complained of on appeal. Appellants present the following issues for our 

review: 

A. Whether Appellants’ [c]oncise [s]tatement of [e]rrors 

[c]omplained of on [a]ppeal [c]omplies with Pa.R.A.P. 

1925(b) in order to permit this appeal?

B. Whether the trial court erred as a matter of law and/or 

abused its discretion when its determination is not supported 

by competent evidence in the record? 

Appellants’ Brief at 4. 

To begin, we must determine whether Appellants’ Rule 1925(b) 

statement complies with the Pennsylvania Rules of Appellate Procedure. 

Whenever a trial court orders an appellant to file a concise 

statement of matters complained of on appeal pursuant to Rule 

1925(b), the appellant must comply in a timely matter. 

Commonwealth v. Castillo, ... 888 A.2d 775, 780 (Pa. 2005); 

see also Lineberger v. Wyeth, 894 A.2d 141, 148 n.4 (Pa. 

Super. 2006) (noting that principles surrounding application of 

Rule 1925(b) enunciated in criminal cases apply equally to civil 

cases). Failure to comply with a Rule 1925(b) order will result in 

waiver of all issues raised on appeal. Castillo, ... 888 A.2d at 

780; Lineberger, supra at 148. Furthermore, any issue not 

raised in an appellant’s Rule 1925(b) statement will be deemed 

waived for purposes of appellate review. Lineberger, supra at 

148. 

***

[T]his Court has also addressed the issue of Rule 1925(b) 

statements that are vague and/or overly broad. We have 

consistently held that a Rule 1925(b) statement is not in 
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compliance with the Rules of Appellate Procedure if it is so vague 

and broad that it does not identify the specific questions raised 

on appeal. See, e.g., Wells v. Cendant Mobility Financial 

Corp., 913 A.2d 929, 932-34 (Pa. Super. 2006); Lineberger, 

supra at 148-49. 

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa. Super. 2007) 

(emphasis added in original). 

Here, the trial court requests that this appeal “be quashed as a 

violation of [Rule] 1925(b)(4)(ii),” based on its contention that Appellants’ 

Rule 1925(b) statement contains only generic allegations of error and in no 

way specifies how the trial court erred. TCO at 4. We agree that the errors 

set forth in Appellants’ Rule 1925(b) statement are vague. However, before 

we conclude that this appeal should be quashed, we must examine the 

record to determine whether the trial court provided a basis for its ruling. 

This Court has previously stated, 

unless one knows the basis for a court’s order, there is no way 

to specifically challenge its rationale....

When one seeking to appeal has no basis in the record to discern 

the basis for the order being challenged, Pa.R.A.P. 1925(b) must 

not be employed as a trap to defeat appellate review, requiring 

specifically stated challenges to the resolution of issues before 

there has been any revelation as to how the issues have been 

resolved.

Hess, 925 A.2d at 804 (quoting Ryan v. Johnson, 564 A.2d 1237, 1239 

(Pa. 1989)). 

As we elaborated in Hess, 

[w]hen the reasons for a trial court’s ruling are vague or not 

discernable from the record, then an appellant may be forced to 

file a vague Rule 1925(b) statement, and it would be unjust to 

consider such filing a violation of the Rule.... [U]nder these 
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limited circumstances ... it is not appropriate to find waiver or to 

dismiss the appeal based on a vague Rule 1925(b) statement. 

Id. (emphasis added in original and internal citations omitted). 

After careful review of the record, we discern that the trial court failed 

to provide any rationale for its decision. Neither the record nor the order 

itself is informative in this regard, and the court did not file a memorandum 

in support of its decision. Accordingly, we conclude that the issues raised by 

Appellants on appeal are not waived for failure to file a sufficiently specific 

Rule 1925(b) statement. Moreover, the trial court’s Rule 1925(a) opinion 

provides a detailed explanation of its rationale for the ruling which is the 

subject of this appeal. Thus, our ability to conduct meaningful and effective 

appellate review is not impeded. We now turn to the merits of this appeal. 

It has been well established that: 

Our appellate role in cases arising from non-jury trial verdicts is 

to determine whether the findings of the trial court are 

supported by competent evidence and whether the trial court 

committed error in any application of the law. The findings of 

fact of the trial judge must be given the same weight and effect 

on appeal as the verdict of a jury. We consider the evidence in a 

light most favorable to the verdict winner. We will reverse the 

trial court only if its findings of fact are not supported by 

competent evidence in the record or if its findings are premised 

on an error of law. However, where the issue ... concerns a 

question of law, our scope of review is plenary. 

The trial court’s conclusions of law on appeal originating from a 

non-jury trial are not binding on an appellate court because it is 

the appellate court’s duty to determine if the trial court correctly 

applied the law to the facts of the case. 

Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa. 

Super. 2007) (internal citations and quotation marks omitted). 
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Appellants claim that the trial court’s ruling in favor of Appellees is not 

supported by competent evidence in the record. Specifically, Appellants 

allege that Appellees failed to timely exercise their right to terminate the 

Agreement within the allotted contingency period and, therefore, were 

required to purchase the Property from Appellants in accordance with the 

terms of the Agreement. In the alternative, Appellants argue that even if 

Appellees’ alleged notice of intent to terminate the Agreement is deemed 

timely, the notice was not in the proper format. Hence, Appellants conclude 

that Appellees would still be bound to complete the sale as provided by the 

terms of the Agreement. See Appellants’ Brief at 18, 22. 

In order to address Appellants’ claim, we first examine the relevant 

portions of the underlying Agreement. The contract clearly reflects that 

Appellees elected a fifteen (15) day contingency period to allow for property, 

water, and sewer inspections. See Agreement, 12/13/08, at 4-6 ¶¶ 11-15.2 

These contingencies are governed by “Option 1” under Paragraph 10 of the 

Agreement, which further provides:

10. Inspection Contingency Options

The inspection contingencies elected by Buyer in Paragraphs 11-

15 are controlled by the Options set forth below. The time 

periods stated in those options will apply to all inspection 

____________________________________________

2 Paragraphs 11 through 15 of the Agreement expressly provide that each 

elected contingency period is fifteen (15) days from the execution date, if 

not otherwise specified. No alternative time frame for the elected 

contingencies was specified in the contract by the parties. Id. 
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contingencies in paragraphs 11-15 unless otherwise stated by 

this Agreement. 

Option 1. Within the Contingency Period as stated in Paragraphs 

11-15, Buyer will:

1. Accept the Property with the information stated in 

the report(s) and agree to the Release and/or 

Releases in Paragraph 27 of this Agreement, OR

2. If Buyer is not satisfied with the information stated 

in the report(s), terminate this Agreement by written 

notice to the Seller, with all deposit monies returned 

to the Buyer according to the terms of paragraph 20 

of this Agreement, OR

3. Enter into a mutually acceptable written agreement 

with Seller providing for any repairs or 

improvements to the Property and/or any credit to 

Buyer at settlement, as acceptable to the mortgage 

lender(s), if any. 

If Buyer and Seller do not reach a written agreement 

during the specified Contingency Period, and Buyer 

does not terminate this Agreement by written notice 

to Seller within that time, Buyer will accept the 

Property and agree to the RELEASE in paragraph 27 

of this Agreement. 

Id. at 4 ¶10. 

In addition, paragraph 5 of the Agreement states, in relevant part:

5. DATES/TIMES OF THE ESSENCE

(A) The settlement date and all other dates and 

times referred to for the performance of any of the 

obligations of this Agreement are of the essence and 

are binding. 

(B) For purposes of this Agreement, the number of 

days will be counted from the date of execution, 

excluding the day this Agreement was executed and 

including the last day of the time period. The 

Execution Date of this Agreement is the date when 

Buyer and Seller have indicated full acceptance of 
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this Agreement by signing and/or initialing it. All 

changes to this Agreement should be initialed and 

dated. 

Id. at 2 ¶5. 

Additionally, paragraph 29 of the Agreement grants Appellants the 

option to retain the $70,000.00 deposit in escrow, in the event that 

Appellees breach any terms or conditions of the contract. See id. at 9 ¶29. 

In accordance with paragraph 30, all deposit monies must be returned to 

Appellees in the event that Appellees terminate the Agreement pursuant to 

any right granted therein, and the Agreement will be void. Id. at ¶30.

In the instant matter, the trial court determined that the evidence 

produced at trial established Appellees were entitled to the return of their 

$70,000.00 deposit, pursuant to paragraph 30 of the Agreement. After 

careful review, we discern sufficient evidence in the record to support the 

court’s findings. 

First, the trial court explained: 

Under the Agreement, [Appellees] had fifteen (15) days 

from the date of the contract execution to accept the information 

in the inspections and proceed with the sale or to obtain a 

written agreement from the [Appellants] to provide for any 

necessary repairs/credit at settlement. If neither of these 

events occurred during the fifteen (15) day period, then 

[Appellees] accepted the property and could not recoup the 

deposit.

The evidence showed that [Appellees] initialed the last 

changes to the Agreement and forwarded the same to 

[Appellants’] agent, [Mr.] McCabe, on December 13, 2008. 

On December 15, 2008, [Appellants’] agent, [Mr.] McCabe, 

sent an e-mail to [Appellant, Mr. Warner,] stating, “[t]he 

finalized contract was received by e-mail on Saturday[,] 
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December 13, 2008. The start date for all buyer property 

inspections is December 14, 2008.

[”]

 [Appellees’] agent, 

[Ms.] Smith, testified at trial that based on this e-mail, she 

believed [Appellees] had from the day after the 14th, 

December 15, 2008, through December 29, 2008, to 

provide notice on the inspections.[3] 

Moreover, in an e-mail dated January 2, 2009, from 

[Appellant, Mr. Warner,] to [Mr.] McCabe, [Mr.] Warner, too, 

acknowledged that the last day for termination was December 

29, 2008. [Mr.] Warner wrote, “Please notify the buyers we will 

not remediate the septic system issues or any other issues. The 

sales price and contingency concessions we have already made 

were to allow for these types of issues. As you wrote, the buyer 

should not be able to terminate the agreement of sale at this 

time based on inspections since the deadline for termination 

based on inspections (Dec 29) has passed. We do not plan 

on re-inspecting the septic system.” 

TCO at 7-8 (citations to the record omitted) (emphasis added). 

In reaching its decision, the trial court relied on Appellees’ expert 

report, as well as the testimony of Appellees and their realtor, Ms. Smith. 

Id. at 6. The court also indicated that it was not persuaded by Mr. McCabe’s 

testimony, and that it found much of Mr. Warner’s testimony to be 

irrelevant. Id. It is well-established that:

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. Assessments of credibility 

and conflicts in evidence are for the trial court to resolve; this 

Court is not permitted to reexamine the weight and credibility 

____________________________________________

3 On redirect examination, Ms. Smith stated that she often uses the terms 

“start date” and “execution date” interchangeably. She further revealed that 

when Mr. McCabe stated by email that the “start date was December 14th,” 

she considered that to be a revised execution date. See N.T. Trial, 9/29/16, 

at 83-84. 
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determinations or substitute our judgments for those of the 

factfinder. The test is not whether this Court would have 

reached the same result on the evidence presented, but rather, 

after due consideration of the evidence the trial court found 

credible, whether the trial court could have reasonably reached 

its conclusion. 

Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916 (Pa. Super. 

2017). 

The following portion of the report issued by Appellees’ expert, Ellen B. 

Renish, was reproduced by the trial court in support of its finding that 

Appellees provided timely notice of termination, in accordance with the 

Agreement: 

The date of December 14, 2008, was indicated as the 

execution of the Agreement.... This would provide the start date 

of inspection and reply period as December 15, 2008, through 

December 29, 2008 by [Appellees] to [Appellant]. This would 

indicate that [Appellees,] through their agent[, Ms. Smith,] 

responded timely to the inspections and indicated that they 

would be terminating in the event [Appellants] were not willing 

to negotiate the septic repairs/replacement. 

[Appellants’] Agent[, Mr. McCabe,] did not respond to 

this request from [Appellees’] Agent until January 6, 

2009. Their response indicated that they would not negotiate 

on the cost of repairs to the septic system and that they 

accepted a purchase price lower than the list price with the 

thought that repairs would be the responsibility of [Appellees]. 

The termination of the Agreement ... was provided by 

[Appellees’] Agent on December 29, 2008 by email[;] however, 

this was not acknowledged by [Appellants] or [Appellants’] 

Agent. Subsequent to this email response, an additional written 

termination dated January 6, 2009, and signed by [Appellees] 

was provided to [Appellants’] Agent confirming the previous 

email termination. 

[Appellants] did not attempt to negotiate repairs as 

requested by [Appellees] after receiving the reply to the 

inspection and notification that the septic system had failed. All 
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correspondence concerning the terms of the Agreement 

were being conveyed by the Agents of each party 

([Appellants] and [Appellees]) throughout this 

transaction. This is evidenced by emails between the 

Agents for the parties. It also appears that all changes 

that were made to the Agreement ... did not receive 

initials by all parties, but emails between the Agents for 

the respective parties were being conveyed on their 

behalf. It appears that the response time for [Appellants] 

to [Appellees] was often disregarded. It is unknown if 

the Trust made up of multiple individuals was unable to 

respond as proscribed by the Agreement ... and this 

practice was then followed throughout the course of this 

transaction.

It is clear that both parties[’] Agents had some difference 

in determining the appropriate date[s] for notification and 

communication. I believe [Appellees] did notify their 

Agent timely to respond after inspections were 

completed. It also appears that [Appellants] may not 

have been notified by their Agent timely and that may 

have been due to the nature of having to communicate 

with multiple sellers. 

TCO at 8-9 (emphasis added by trial court). 

After emphasizing the parties’ timeliness, or lack thereof regarding 

their dealings with each other, supra, the court expressed that it was 

“unwilling to impose a hyper-technical interpretation on the parties’ 

Agreement, after the fact, where the parties themselves failed to strictly 

abide by the contract terms during the process.” Id. at 9 (emphasis 

added by trial court). Our courts have held that even where an agreement 

of sale makes time of the essence, this provision may be waived by conduct 

of the parties. See DiGiuseppe v. DiGiuseppe, 96 A.2d 874, 875 (Pa. 

1953) (citing Cohn v. Weiss, 51 A.2d 740, 742 (Pa. 1947)); see also 
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Davis v. Northridge Development Associates, 622 A.2d 381, 386 (Pa. 

Super. 1993). 

Moreover, the trial court rejected Appellants’ claim that Ms. Smith’s 

December 29, 2008 email, stating that Appellees no longer wished to 

proceed with the sale unless Appellants were willing to negotiate on the 

septic system issue, was invalid due to improper format. 

[Appellants] failed to provide any support for this argument 

other than [Mr.] McCabe’s conclusory statement. The court was 

not directed to any language in the Agreement indicating that a 

buyer must terminate with a specific form, nor did either expert 

indicate that notice of termination had to be in a specific format. 

TCO at 9 (citations to record omitted). 

Finally, regarding Appellants’ Counterclaim, the trial court found in 

favor of Appellees, stating that Appellants had “simply failed to meet their 

burden of proof to establish that any loss on the ultimate sales price was 

attributable to [Appellees].” TCO at 9. The court elaborated: 

The testimony was clear that the housing market took a sharp 

downturn in 2008 after the Agreement at issue terminated, a 

situation obviously out of [Appellees’] control. Also, after the 

termination, [Appellants] placed the house back on the market 

for a substantially higher price than they had accepted from 

[Appellees]. Finally, the Sellers had numerous deals fall through 

regarding the property at issue for some time post-termination. 

[Appellees] could not be held responsible for any losses from 

situations of which they played no role. 

Id. at 9-10 (citations to record omitted). The trial court’s finding is wellsupported by the record. 
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Based on the foregoing, we discern no error of law by the trial court. 

Accordingly, we affirm the judgment entered in favor of Appellees. 

 Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/2017