J. Klotz v. Moon Twp. Board of Supervisors ( 2015 )


Menu:
  •                  IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jeffrey Klotz,                          :
    Appellant      :
    :
    v.                  :
    :
    Moon Township Board of                  :   No. 2263 C.D. 2014
    Supervisors                             :
    :
    Jeffrey Klotz                           :
    :
    v.                  :
    :
    Moon Township Board of                  :
    Supervisors,                            :   No. 2322 C.D. 2014
    Appellant         :   Submitted September 11, 2015
    BEFORE:      HONORABLE DAN PELLEGRINI, President Judge
    HONORABLE MARY HANNAH LEAVITT, Judge
    HONORABLE ANNE E. COVEY, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                 FILED: December 30, 2015
    Moon Township (Township) Police Officer Jeffrey Klotz (Klotz)
    appeals from the Allegheny County Common Pleas Court’s (trial court) October 2,
    2014 order dismissing Klotz’s appeal and affirming the Township Board of
    Supervisor’s (Board) decision.    The Board cross-appeals from the trial court’s
    December 9, 2014 order granting Klotz leave to file a nunc pro tunc appeal. Klotz
    presents three issues for this Court’s review: (1) whether the trial court erred in
    considering a hearsay statement; (2) whether the trial court erred in concluding that
    substantial evidence supported Klotz’s misconduct; and (3) whether the trial court
    erred in concluding that the conduct witnessed by Township Police Sergeant Jeffrey
    Smith supported Klotz’s employment termination. The Board’s sole issue before the
    Court is whether this Court has jurisdiction over Klotz’s untimely-filed appeal.
    On July 8, 2013, Klotz was charged with simple assault for an incident
    that allegedly occurred on July 7, 2013. On July 11, 2013, Klotz appeared before
    Township Police Chief Leo McCarthy and Township Police Captain Greg Seaman
    for a Loudermill hearing.1 By July 29, 2013 letter, Township Manager Jeanne Creese
    notified Klotz that he had been removed from his Township police officer position.
    Thereafter, Klotz requested a hearing under the Act of June 15, 1951, P.L. 586, as
    amended, 53 P.S. §§ 811-816, commonly known as the Police Tenure Act (Tenure
    Act). A Tenure Act hearing was held on September 30, 2013 before the Board. On
    November 20, 2013, the Board terminated Klotz’s employment. Klotz appealed from
    the Board’s decision to the trial court. By October 2, 2014 order, docketed on
    October 6, 2014, the trial court dismissed Klotz’s appeal, thereby affirming the
    Board’s decision.2
    On November 12, 2014, Klotz filed a motion for leave to file a nunc pro
    tunc appeal (Nunc Pro Tunc Motion) with the trial court.3 On December 9, 2014, the
    trial court granted Klotz’s motion. Also on December 9, 2014, Klotz appealed from
    the trial court’s October 2, 2014 order to this Court.4 On December 12, 2014, the
    1
    In Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
     (1985), the United States
    Supreme Court held that since a public employee has a property interest in his employment, under
    the United States Constitution’s Due Process Clause, he must be afforded at least notice and a
    hearing before that employment is terminated.
    2
    Thus, if Klotz wished to appeal from the trial court’s decision he was required to do so no
    later than November 5, 2014. See Pa.R.A.P. 903(a); see also Pa.R.A.P 301(a)(1).
    3
    “[A] petition to appeal nunc pro tunc may be directed to either the lower court or the
    appellate court.” Weiman v. Trahey, 
    564 A.2d 557
    , 559 (Pa. Cmwlth. 1989).
    4
    “Where, as here, the trial court takes no additional evidence, our scope of review is limited
    to determining whether the Board committed an abuse of discretion or an error of law.” Piper Grp.,
    Inc. v. Bedminster Twp. Bd. of Supervisors, 
    992 A.2d 224
    , 230 n.6 (Pa. Cmwlth. 2010).
    2
    Board appealed from the trial court’s December 9, 2014 order to this Court.5 On
    December 24, 2014, the Board filed a Motion to Quash Klotz’s appeal with this
    Court. By February 2, 2015 order (Order), this Court denied the Board’s Motion to
    Quash and directed the Board to “raise the propriety of the trial court’s grant of nunc
    pro tunc relief in the brief in support of its cross-appeal.” Order at 1 (italics added).
    The Order further consolidated the cross-appeals. As the impropriety of the nunc pro
    tunc appeal would obviate the need to address the merits of Klotz’s appeal, we first
    address the Board’s issue, i.e., whether this Court has jurisdiction over Klotz’s
    untimely-filed appeal.
    As a general rule, an appeal nunc pro tunc will be granted
    in civil cases only where the appeal was untimely filed due
    to fraud or a breakdown in the court’s operations.
    However, that standard has been relaxed where a litigant’s
    right to appeal has been lost due to ‘extraordinary
    circumstances.’ Each case, however, is limited to the
    unique and compelling factual circumstances of that
    particular case.
    The courts of this Commonwealth have addressed the issue
    of whether extraordinary circumstances existed such that
    allowance of an appeal nunc pro tunc was appropriate on
    numerous occasions. See [Commonwealth v.] Stock[, 
    679 A.2d 760
     (Pa. 1996)] (appeal nunc pro tunc was
    appropriate in criminal context where litigant requested
    attorney to file appeal; however, attorney failed to file
    timely appeal); Cook v. Unemployment [Comp.] [Bd.] of
    Review, . . . 
    671 A.2d 1130
     ([Pa.] 1996) (appeal nunc pro
    tunc was appropriate where hospitalization of litigant
    during the running of the appeals period resulted in the
    non-negligent late filing of appeal); Bass v.
    Commonwealth, . . . 
    401 A.2d 1133
     ([Pa.] 1979) (appeal
    nunc pro tunc was appropriate to avoid a litigant’s loss of
    5
    “Where the trial court permits an untimely appeal to be filed nunc pro tunc, our review is
    limited to determining whether the trial court abused its discretion or committed an error of law.”
    Puckett v. Dep’t of Transp., Bureau of Driver Licensing, 
    804 A.2d 140
    , 143 n.6 (Pa. Cmwlth.
    2002).
    3
    her day in court where the failure of a litigant’s attorney
    to file a timely appeal was non-negligent and the delay
    was minimal); Walker v. Unemployment [Comp.] [Bd.] of
    Review, . . . 
    461 A.2d 346
     ([Pa. Cmwlth.] 1983) (appeal
    nunc pro tunc was appropriate where post office failed
    to forward referee’s decision resulting in untimely filing
    of appeal). While the holdings in those cases expand the
    general rule for granting an appeal nunc pro tunc, implicit
    in each of those holdings is a finding that the litigant
    himself [or his attorney] did not act in a negligent
    manner.
    Puckett v. Dep’t of Transp., Bureau of Driver Licensing, 
    804 A.2d 140
    , 143 (Pa.
    Cmwlth. 2002) (some citations omitted; emphasis added).
    Here, the trial court dismissed Klotz’s appeal by October 2, 2014 order
    which was docketed on October 6, 2014. By letter dated October 6, 2014, the trial
    court sent a copy of the October 2, 2014 order to Klotz’s legal counsel (Counsel)
    which Counsel received on October 7, 2014.           Counsel maintains he is a sole
    practitioner who, four days after the date of the trial court’s order and one day before
    receiving notice of the order, began an all-consuming federal criminal trial that lasted
    close to two weeks. See Klotz Br. in Opposition to Motion to Quash. Counsel
    acknowledges that he made a mistake and used the date of the letter (four days after
    the date of the order) as the date from which he noted his appeal deadline on his
    calendar. When Counsel prepared the Notice of Appeal for filing, he realized he was
    a day or two late and consequently filed his nunc pro tunc motion. 
    Id.
    Although Counsel contends that his notice of appeal was late because he
    used the date of the letter, as opposed to the date of the order, to determine his
    deadline to file Klotz’s appeal, that assertion adds no weight to his argument. The
    order, although dated October 2, 2014, was not docketed until October 6, 2014, the
    date of the letter. “[T]he notice of appeal . . . shall be filed within 30 days after the
    entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a) (emphasis
    added). Thus, if Counsel used the date of the letter to determine his deadline, he
    4
    would have used the correct date, November 5, 2014, as his deadline. Further,
    Counsel never filed a notice of appeal, but rather, filed his Nunc Pro Tunc Motion on
    November 12, 2014.
    The trial court incorrectly stated that the appeal deadline was
    “November 3, 2014,” and that Klotz’ notice of appeal was filed on “November 9,
    2014.” Trial Ct. Op. at 12. Moreover, the trial court improperly opined:
    The reason for said delay, as expressed by [C]ounsel in his
    [Nunc Pro Tunc Motion] for Leave, admittedly sounds in
    negligence. As correctly stated by the Township, the
    negligence of an attorney to file an appeal timely is not
    justification for additional time to file, rather only
    ‘unforeseeable and unavoidable events” may be cited to for
    such delay ([s]ee, Criss v. Rice, 
    781 A.2d 1156
    , 1160 (Pa.
    2001)). Nor, did this writer find a ‘fraud or some
    breakdown in the court’s operation’ warranting special
    relief ([s]ee, Nixon v. Nixon, 
    198 A.2d 154
     (Pa. 1938)).
    At the time of said ruling, this writer was confident that the
    Township would prevail on the merits. This [c]ourt further
    believes that judicial economy is best served by allowing an
    appeal on the merits, otherwise an additional lawsuit for
    legal malpractice will likely follow. This [c]ourt prefers
    issues as serious as a man’s career and livelihood to be
    resolved on the merits. For those reasons this writer chose
    to grant Klotz the right to file an appeal Nunc Pro Tunc.
    
    Id.
     (italics added). While the trial court acknowledged the law, it clearly did not
    follow it. The trial court’s reasoning shows the incongruence of the well-established
    rule of law and the trial court’s decision. Accordingly, the trial court improvidently
    granted the Nunc Pro Tunc Motion.
    Klotz does not contend any incapacitation such that he could not have
    filed a timely appeal or any non-negligent action on the part of a third person, i.e., his
    attorney, such that made filing a timely appeal impossible. Instead, Klotz argues that
    his appeal from the trial court’s order was untimely due to his attorney’s workload.
    5
    Because Counsel inadvertently wrote down the wrong date for filing and was in the
    middle of trying a federal case, he negligently failed to timely file Klotz’s appeal.
    While we sympathize with both Klotz and his attorney,6 because Klotz and/or his
    attorney were not in any way incapacitated from filing an appeal from the trial court’s
    order, we cannot say that extraordinary circumstances existed such that an appeal
    nunc pro tunc was appropriate.
    “Because no extraordinary circumstances existed to cause [Klotz’s]
    untimely filing of his appeal, the trial court erred in granting his appeal nunc pro
    tunc, and, therefore, [this Court] is without jurisdiction to hear the appeal.” Puckett,
    
    804 A.2d at 144
    . Accordingly, the trial court’s order granting Klotz’s nunc pro tunc
    appeal is reversed, and Klotz’s appeal is dismissed.7
    ___________________________
    ANNE E. COVEY, Judge
    6
    Counsel “points out that he is 67 years old, has practiced law for 43 years, and during that
    period, has always had a ‘busy caseload’ and never missed a filing deadline.” Klotz Br. in
    Opposition to Motion to Quash at 2.
    7
    Notwithstanding, if the appeal was timely filed, we would affirm the trial court’s order.
    6
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Jeffrey Klotz,                           :
    Appellant      :
    :
    v.                    :
    :
    Moon Township Board of                   :   No. 2263 C.D. 2014
    Supervisors                              :
    :
    Jeffrey Klotz                            :
    :
    v.                    :
    :
    Moon Township Board of                   :
    Supervisors,                             :   No. 2322 C.D. 2014
    Appellant          :
    ORDER
    AND NOW, this 30th day of December, 2015, the Allegheny County
    Common Pleas Court’s (trial court) December 9, 2014 order is reversed and Jeffrey
    Klotz’s appeal from the trial court’s October 2, 2014 order is dismissed.
    ___________________________
    ANNE E. COVEY, Judge
    

Document Info

Docket Number: 2263 and 2322 C.D. 2014

Judges: Covey, J.

Filed Date: 12/30/2015

Precedential Status: Precedential

Modified Date: 12/30/2015