[J-15-2018]
`IN THE SUPREME COURT OF PENNSYLVANIA
`MIDDLE DISTRICT
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`SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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`v.
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`LEO J. DOLAN, JR. AND CHERIE M.
`DOLAN, H/W
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`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.
`
`No. 51 MAP 2017
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`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
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`JUSTICE MUNDY
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`DECIDED: October 17, 2018
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`OPINION
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`In this appeal by permission we consider the proper role of an appellate court when
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`reviewing a non-jury decision where it deems the trial court’s opinion pursuant to
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`Pennsylvania Rule of Appellate Procedure 1925(a) inadequate, but the trial judge is no
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`longer available to provide a supplemental opinion.
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`In 1999, Appellant Leo Dolan, Jr. and Cherie M. Dolan1 entered into an agreement
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`of sale with Bentley Homes, Ltd., Garvin Mitchell Corporation, Chadwell Associates, L.P.,
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`Chadwell Realty, Inc. and Harrison Community Association (hereinafter “Bentley”) for a
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`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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`

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`new custom house at the purchase price of $1,941,669.00. Settlement took place on
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`November 10, 2000. Hurd Millwork Company, Inc. (Hurd) provided many of the windows
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`used in the construction of Appellant’s home. Within a year, the house developed
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`substantial defects, including air and water leaks around the windows.
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`On April 5, 2001, Hurd filed an action against Bentley for unpaid invoices related
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`to the construction of Appellant’s home and other homes in the same development.
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`Bentley filed a counterclaim against Hurd for providing defective windows. In October
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`2002, Bentley and Hurd entered into a settlement containing admissions that numerous
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`homes in the development suffered from extensive defects and leaks.
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`During the pendency of the litigation between Hurd and Bentley, Appellant
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`experienced additional problems with his home including severe leaks, rotted wood and
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`issues with a stucco wall. Bentley made some repairs to the home, but the leaks
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`continued to worsen. Appellant hired a civil engineer to assess the home and determine
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`what repairs were required to fix the problems with the house. The repairs and associated
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`costs amounted to $826,695.99.
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`On May 24, 2005, Appellant filed a writ of summons against Bentley and Hurd. On
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`September 6, 2005, Appellant filed a complaint against Bentley raising the following
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`claims: (1) negligence; (2) breach of express and implied warranty; (3) negligent
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`misrepresentation; (4) fraud and/or intentional misrepresentation; and (5) violations of the
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`Unfair Trade Practice and Consumer Protection Law (UTPCPL). The complaint sought
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`punitive damages against Bentley. The complaint also raised the following claims against
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`Hurd: (1) breach of express and implied warranty; (2) negligence; and (3) products
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`liability. On November 4, 2005, Bentley filed preliminary objections, which the court
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`overruled on February 2, 2006. Bentley then filed an answer, new matter and cross-claim
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`[J-15-2018] - 2
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`against Hurd on March 1, 2006. Bentley’s cross-claim alleged Hurd was solely or jointly
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`liable for Appellant’s injuries.
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`On March 2, 2006, Hurd filed an answer to Bentley’s cross-claim. Hurd then filed
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`a separate answer and new matter to Appellant’s complaint on March 13, 2006, and a
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`cross-claim against Bentley, which alleged that Bentley was solely or jointly liable for
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`Appellant’s injuries. Bentley filed an answer to Hurd’s cross-claim on March 14, 2006.
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`Bentley filed joinder complaints against other parties involved in the construction of
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`Appellant’s home. Following settlement discussions, the joined defendants were
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`dismissed from the case, and a settlement agreement was reached between Appellant
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`and Hurd.
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`The case proceeded to a non-jury trial before Judge James F. Proud on January
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`6, 2015.2 Prior to the commencement of testimony, Appellant and Bentley agreed to the
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`defective nature of the Hurd windows used in the construction of Appellant’s house.
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`Appellant then presented evidence supporting his claims against Bentley. Bentley did not
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`present any evidence to rebut Appellant’s claims. At the conclusion of trial, the court took
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`the matter under advisement. The parties filed proposed findings of fact and conclusions
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`of law on May 20, 2015. On June 18, 2015, the court entered a general verdict in favor
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`of Appellant and awarded him $500,000 in damages.
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`On June 26, 2015, Bentley filed a motion for post-trial relief, and Appellant filed a
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`motion for delay damages on June 30, 2015. On August, 19, 2015, the court denied
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`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 cross-
`claim in its verdict.
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`[J-15-2018] - 3
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`Bentley’s motion for post-trial relief. On August 21, 2015, the court granted Appellant’s
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`motion for delay damages and molded the verdict to $748,287.67.
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`Bentley filed a timely appeal to the Superior Court. The trial court did not order the
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`filing of a concise statement of errors complained of on appeal, and none was filed. On
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`October 21, 2015, Judge Proud issued a three-page opinion stating, inter alia, that the
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`verdict was against Appellees “jointly and severally.” Trial Ct. Op., 10/21/15, at 1. The
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`opinion stated that “[t]he evidence in this case was overwhelmingly in favor of [Appellant].
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`In fact, [Bentley] presented no evidence whatsoever as either defendants or cross-party
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`plaintiffs.” Id. at 1-2. The court continued that “[t]he verdict made a general finding as to
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`liability and disposed of all claims presented.” Id. at 2. The opinion notes that Appellant’s
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`negligence claims were not barred by the gist of the action doctrine “because such claims
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`were based on the breach of the social duty imposed by the law of torts and not a breach
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`of a duty created by the underlying contract.” Id. The court also concluded that the award
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`of delay damages was appropriate.
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`In its brief to the Superior Court, Bentley raised the following statement of
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`questions involved:
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`Whether a party is precluded as a matter of law from
`1.
`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.
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`Whether a plaintiff is precluded as a matter of law from
`2.
`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.
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`Whether a party is precluded as a matter of law from
`3.
`obtaining damages for negligent misrepresentation and
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`[J-15-2018] - 4
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`fraud/intentional misrepresentation where those claims are
`barred by the gist of the action doctrine, the economic loss
`doctrine, and the statute of limitations.
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`Whether a party is precluded as a matter of law from
`4.
`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.
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`Whether a party is precluded as a matter of law from
`5.
`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.
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`Whether a party is precluded as a matter of law from
`6.
`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.
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`Whether a party is precluded as a matter of law from
`7.
`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.
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`Whether a defendant is entitled to an award of
`8.
`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.
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`Whether a party is precluded as a matter of law from
`9.
`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.
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`Bentley’s Superior Court Brief, 2951 EDA 2015, at 5-7.
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`[J-15-2018] - 5
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`On January 13, 2017, a panel of the Superior Court issued a memorandum
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`decision noting that the trial court opinion was inadequate to allow effective appellate
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`review. The court stated:
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`“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).
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`Dolan v. Hurd, No. 2951, unpublished memorandum at 7 (Pa. Super. filed 1/13/17).
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`Accordingly, the Superior Court remanded to the trial court for a supplemental opinion
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`addressing six specific issues.3 The panel retained jurisdiction.
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`On January 25, 2017, President Judge Chad F. Kenney of the Delaware County
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`Court of Common Pleas sent a Response to Remand to the Superior Court explaining
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`that Judge Proud had retired. President Judge Kenney noted that because the issues on
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`remand could only be addressed by Judge Proud, he was returning the record to the
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`Superior Court and would await further instruction on how to proceed.
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`3 The Superior Court noted:
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`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.
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`Dolan, supra at 7 (emphasis in original).
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`[J-15-2018] - 6
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`On February 17, 2017, the panel issued a memorandum noting that without further
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`explanation from the trial court it was unable to address the issues raised on appeal. It
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`held, “[t]herefore, the best resolution of this appeal is to vacate the judgment and remand
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`for a new trial on liability and damages.” Super. Ct. Op., 2/17/17, at 9. In a footnote the
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`Court stated, “[t]he unforeseen circumstances surrounding the resolution of this appeal
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`put the parties in a unique position that could inspire and motivate a settlement.” Id. at
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`n.2.
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`We granted allowance of appeal to consider the appropriate role of the appellate
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`court under these circumstances and to determine the scope and standard of review to
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`apply if the appellate court is required to reach the merits of the trial court’s decision.
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` Appellant and Bentley agree that the Superior Court erred by remanding the case
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`for a new trial rather than performing an independent review of the record. They both
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`recognize the relevance of this Court’s decision in Armbruster v. Horowitz, 813 A.2d 698
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`(Pa. 2002), but disagree as to whether Armbruster controls the instant matter or merely
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`informs our disposition.
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`The relevant background of Armbruster is as follows. In January 1995, Charles
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`Armbruster brought a malpractice action against his dentist, Dr. David Horowitz. The
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`matter proceeded to trial before the Court of Common Pleas of Lackawanna County, and
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`on November 20, 1997, the jury returned a defense verdict finding that Dr. Horowitz was
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`negligent, but that his negligence was not a substantial factor in bringing about
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`Armbruster’s harm. On December 1, 1997, Armbruster filed a timely post-trial motion
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`asserting that the jury verdict was against the weight of the evidence. Following the
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`issuance of orders regarding the transcription of notes of testimony, no activity took place
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`on the docket until the trial judge resigned from the bench on October 26, 1998 to assume
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`the position of federal district court judge. On October 28, 1998, Dr. Horowitz filed an
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`[J-15-2018] - 7
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`answer to the post-trial motion and a praecipe for judgment on the jury verdict because
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`more than 120 days had elapsed since the filing of the post-trial motion. See Pa.R.C.P.
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`227.4. On October 29, 1998, the prothonotary entered judgment and Armbruster filed an
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`appeal to the Superior Court, again alleging that the verdict was contrary to the weight of
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`the evidence.
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`On appeal, the Superior Court held that in the exceptional circumstance of a judge
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`leaving the bench without ruling on a post-trial weight of the evidence claim, an appellate
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`court could review the claim. Turning to the merits, the majority held that no relief was
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`warranted. This Court granted allocatur “to determine the proper role of an appellate
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`court in reviewing a preserved weight of the evidence claim where the trial judge did not
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`pass on the question and is no longer available to pass on it.” Armbruster, 813 A.2d at
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`702. In affirming the Superior Court, we stated:
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`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.
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`. . .
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`[J-15-2018] - 8
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`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.
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`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.
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`Id. at 704-05 (emphasis in original).
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`The Superior Court has issued several decisions relying on Armbruster that
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`Appellant asserts are inconsistent with the court’s resolution of the instant matter. In
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`Hartner v. Home Depot USA, Inc., 836 A.2d 924 (Pa. Super. 2003), a jury awarded the
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`plaintiff $1,000,000 for knee injuries she sustained while pushing a shopping cart in a
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`parking lot and hitting a raised manhole covered by water.4 Home Depot filed post-trial
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`motions which were assigned to the trial judge who retired before ruling on them. A newly
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`assigned judge set a hearing, prior to which the plaintiff filed a praecipe for judgment
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`pursuant to Pa.R.C.P. 227.4(1)(b) because no decision had been rendered within 120
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`days of the filing of post-trial motions. Although the trial court lost jurisdiction due to the
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`entry of judgment, the newly assigned trial judge prepared an opinion pursuant to
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`Pa.R.A.P. 1925(b), which the Superior Court deemed advisory. The court rejected Home
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`Depot’s argument that the entry of judgment under Rule 227.4(1)(b) denied it due process
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`by preventing a “proper and complete ruling” by the trial court. Hartner, 836 A.2d at 927.
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`4 The verdict was reduced to $950,000 because the jury found the plaintiff five percent
`negligent.
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`[J-15-2018] - 9
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`However, the Superior Court noted that the newly appointed judge would not have had
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`the benefit of hearing the evidence, and that pursuant to Armbruster the Superior Court
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`could review the record and “provide as proper and as complete a ruling as the
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`‘substituted’ trial judge could have provided.” Id. at 928. The Superior Court proceeded
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`to consider Home Depot’s weight of the evidence claim, determined that the award of
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`$1,000,000 shocked its conscience, and remanded for a new trial on damages only.
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`In Estate of Smaling, 80 A.3d 485 (Pa. Super. 2013), the orphans’ court issued an
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`opinion and order denying a widow’s petition seeking to probate an after-discovered will.
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`The widow filed an appeal to the Superior Court and a Pa.R.A.P. 1925(b) statement of
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`errors complained of on appeal, which for the first time raised weight of the evidence
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`issues. Due to the retirement of the original judge, the matter was assigned to a second
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`judge who issued a Rule 1925(a) statement that did not address the issues raised in the
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`Rule 1925(a) statement. Instead, the second judge attached to his Rule 1925(a)
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`statement a copy of the original judge’s opinion in support of her order. The Superior
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`Court concluded that because Orphans’ Court Rule 7.1 does not require the filing of post-
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`trial motions to preserve a claim for appeal, the widow was entitled to have her weight
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`claims reviewed in the first instance. Relying on Armbruster, the Superior Court
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`concluded that “because [the widow] properly preserved her weight of the evidence claim
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`and [the original orphans’ court judge] is permanently unable to review it, we will do so
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`here.” Smaling, 80 A.3d at 493. Following a thorough review of the record, the Superior
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`Court affirmed the decree of the orphans’ court.
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`In Commonwealth v. Izurieta, 171 A.3d 803 (Pa. Super. 2017), a defendant was
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`found guilty of several offenses following a jury trial. Because the presiding jurist left the
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`bench before sentencing, a second judge was appointed to decide post-sentence
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`motions, including a weight of the evidence challenge, and to impose sentencing. After
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`[J-15-2018] - 10
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`the second judge denied the post-trial motions and imposed sentence, the defendant
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`appealed to the Superior Court, which rejected a request that it vacate the defendant’s
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`conviction and remand for a new trial because the trial judge was unable to review his
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`weight of the evidence claim. Relying on Armbruster, the court concluded that a new trial
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`was inappropriate under the circumstances. However, it recognized that “the successor
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`judge’s opinion should not be afforded the level of discretion given to a judge who
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`presided at the trial in question. The successor judge . . . did not have the opportunity to
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`observe the trial proceedings, and he is therefore in no different position, in terms of the
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`‘cold’ record than this Court.” Id. at 808-09. Therefore, instead of applying a discretionary
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`standard of review as an appellate court usually does when reviewing a challenge to a
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`weight of the evidence decision, “our role . . . is to review the entire record and determine
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`whether the successor judge correctly determined that the jury’s verdict was not against
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`the weight of the evidence.” Id. at 809. Upon review of the testimony and the record, the
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`Superior Court affirmed the trial court.
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`Appellant asserts that the instant matter:
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`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.
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`Appellant’s Brief, at 23. Because Armbruster is limited to cases where the trial judge is
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`unavailable to rule on weight of the evidence claims, Armbruster and its progeny do not
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`compel broad “merits review of the case.” However, Armbruster does provide a
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`framework to decide the instant matter, in which Bentley’s appeal to the Superior Court
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`raises legal rather than factual issues.
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`In Armbruster, this Court recognized that requiring a new trial where the lower court
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`failed to rule on post-trial motions raising a challenge to the weight of the evidence was
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`an unfair result. Applying the reasoning of Armbruster to this case we conclude that
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`where a Rule 1925(a) opinion is deemed inadequate and the trial judge is unavailable to
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`provide a supplemental opinion, the appellate court should review the legal issues raised
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`in the appellant’s Rule 1925(b) statement of errors complained of on appeal. As the
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`Superior Court has noted, when deciding issues of law an appellate court is not required
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`to defer to the conclusions of a trial court. Cooke v. Equitable Life Assurance Soc’y of
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`the United States, 723 A.2d 723, 727 (Pa. Super. 1999). This is consistent with the fact
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`that for questions of law, an appellate court’s standard of review is de novo and its scope
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`of review is plenary. Shinal v. Toms, 162 A.3d 429, 438 (Pa. 2017). Applying this
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`standard and scope, the Superior Court will be able to review the entire record and
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`ultimately determine whether the trial court correctly decided the legal issues raised in
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`Bentley’s appeal.
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`As to any factual findings implicated in the issues raised on appeal from the nonjury
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`trial, the Superior Court shall determine whether they are supported by competent
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`evidence. See De Lage Landen Financial v. M.B. Management, 888 A.2d 895, 898 (Pa.
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`Super. 2005).
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`Accordingly, the order of the Superior Court is reversed and the matter is
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`remanded for disposition consistent with this opinion.
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`Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty and Wecht join
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`the opinion.
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`[J-15-2018] - 12
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