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D.L. Forrey & Associates, Inc. v. Fuel City Truck Stop, Inc.

Superior Court of Pennsylvania

June 11, 2013


Appeal from the Order entered October 1, 2012, in the Court of Common Pleas of Perry County, Civil Division, at No: CV-2009-106.




Fuel City Truck Stop, Inc., ("Appellant"), appeals from the trial court's order denying Appellant's motion for leave to file post-trial motions nunc pro tunc. We affirm, and deny as moot the motion of D.L. Forrey & Associates, Inc.'s ("D.L.") to quash this appeal.

We glean the following procedural history and facts from our review of the record. On January 28, 2009, D.L. initiated a breach of contract action against Appellant. See generally Complaint, 1/28/09. D.L. averred that "[o]n or about November 18, 2005, [Appellant's Vice President], entered into a Listing Contract Exclusive Right to Sell Commercial Property…with [D.L.] to market for sale [Appellant's] real property located [in]…Perry County, Pennsylvania[.]" Id. at 1. The listing contract provided a list price of $2, 100, 000 for Appellant's property, "or any other price and terms agreeable" to Appellant, along with an 8% broker's fee, payable to D.L., of the "gross sales price at closing." Id. Additionally, paragraph 6 of the listing contract provided that Appellant "will pay Broker's Fee if negotiations that are pending at the Ending Date of [the listing contract]…result in a sale." Id. at 2. D.L. averred that it "procured a ready, willing and able buyer" for Appellant's property "at the list price, " which Appellant rejected. Id. at 1-2. Appellant "instead sold the property to…Perry Petroleum Place, Inc., ["Perry"], …[with whom Appellant] had also been negotiating with during the time period of the Listing Contract." Id. at 2. According to D.L., Appellant "had pending negotiations with [Perry]…at the expiration of the Listing Contract." D.L. demanded $168, 000 plus interest and costs for Appellant's breach of the listing contract. Id.

Appellant filed an answer and new matter on June 2, 2009, to which D.L. replied on June 22, 2009. The trial court conducted a non-jury trial on April 10, 2012. The trial court entered an order "award[ing] judgment against [Appellant] and in favor of [D.L.]" for $144, 000. Order, 4/11/12, at 1. At the conclusion of the non-jury trial, the trial court indicated to Appellant, "your attorney can advise you of any appellate right that you would have. You would have 30 days to file—you can actually file any post-trial motions and also 30 days to file an appeal to the Superior Court." N.T., 4/10/12, at 193.

Appellant did not file any post-trial motions. Post-trial motions fall under the purview of Pa.R.C.P. 227.1(c), which 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 a jury.

Pa.R.C.P. 227.1(c)(2).

On May 8, 2012, Appellant filed a notice of appeal. On May 14, 2012, D.L. praeciped and secured a final judgment against Appellant. On July 18, 2012, this Court dismissed Appellant's appeal for failing to file post-trial motions. Order, 7/18/12, at 1. On August 1, 2012, Appellant applied for reconsideration of our Court's dismissal of the appeal. On August 7, 2012, we denied Appellant's application for reconsideration, and indicated that the order was "entered without prejudice to appellant's right to request leave from the trial court to file post-trial motions nunc pro tunc." Order, 8/7/12, at 1.

On August 20, 2012, Appellant sought leave to file post-trial motions nunc pro tunc. As summarized by Appellant, "[a]mong other things, the Motion for Leave to File Post-Trial Motions argued that due to the language of the [trial c]ourt's April 10, 2012 Order, [Appellant's] trial counsel reasonably concluded that he was required to file an immediate appeal from the Order rather than file post-trial motions in order to preserve [Appellant's] right to appeal the decision." Appellant's Brief at 7. The trial court heard oral arguments on Appellant's motion on September 29, 2012, and issued an order denying nunc pro tunc relief on October 1, 2012. On October 23, 2012, Appellant filed a timely notice of appeal. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Did the trial court misapprehend its equitable powers when it denied the Appellant's Motion For Leave to File Post-Trial Motions, Nunc Pro Tunc?
2. Under the circumstances of this case, did the trial court abuse its discretion in denying the Appellant's Motion for Leave to File ...

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