T.J. Greco & G Net Commco., Inc. v. City of Wilkes-Barre & Red. Auth. of City of Wilkes-Barre ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas J. Greco and :
G Net Commco., Inc., :
Appellants :
:
v. :
:
City of Wilkes-Barre and :
Redevelopment Authority of : No. 1425 C.D. 2019
City of Wilkes-Barre : Argued: February 9, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 2, 2021
Thomas J. Greco and G Net Commco., Inc. (collectively, Greco) appeal
from the Luzerne County Common Pleas Court’s (trial court) September 9, 2019
order sustaining the City of Wilkes-Barre’s (City) preliminary objection based on
untimeliness (Preliminary Objection) to Greco’s Petition for the Appointment of a
Board of Viewers (Petition). Greco presents four issues for this Court’s review: (1)
whether Greco preserved any issues on appeal by timely serving the trial court with
its Concise Statement of Errors Complained of on Appeal pursuant to Pennsylvania
Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b) Statement), but not filing
its Rule 1925(b) Statement of record; (2) whether the trial court abused its discretion
and committed an error of law by granting the Preliminary Objection based on the
determination that the applicable statute of limitations was 21 years from an effective
date of May 1986, when the facts pled by Greco were uncontroverted and the record
established that Greco did not take possession of the land until October 4, 2002, and
had no rights of any action until said time; (3) whether the trial court abused its
discretion and committed an error of law by failing to recognize that there were two
separate unlawful takings at two separate times and the Petition was timely filed
relative to both takings; and (4) whether the trial court abused its discretion and
committed an error of law by limiting the right to recovery to the previous owners
at the time of the taking, when in fact: there was no formal declaration of taking
relative to the subject parcel, manholes and vault; the previous owner had no notice;
and Greco, subsequent to taking ownership and possession, timely commenced an
action after becoming aware of the taking. After review, this Court quashes the
appeal.
Background
On October 3, 2008, Greco filed a Praecipe for a Writ of Summons
against the City and the City’s Redevelopment Authority (Redevelopment
Authority) (collectively, Appellees) with the Luzerne County Common Pleas Court
(Common Pleas).1 On September 27, 2018, due to over two years of inactivity,
Common Pleas sent a Notice of Proposed Termination of Case to Greco and the
Appellees giving the parties until November 15, 2018, to file a Statement of
Intention to Proceed to avoid dismissal of the case. On November 13, 2018, Greco
filed a Statement of Intention to Proceed.
On May 7, 2019, Greco filed the Petition. On June 5, 2019, the City
filed preliminary objections to the Petition, including, inter alia, the Preliminary
Objection alleging the Petition’s untimeliness. On June 26, 2019, Greco filed an
Answer thereto. On September 9, 2019, the trial court granted the Preliminary
1
The Luzerne County Common Pleas Court is defined as Common Pleas to distinguish it
from the trial court, which ruled on the instant Preliminary Objection.
2
Objection. On September 17, 2019, Greco filed a Petition for Reconsideration,
which the trial court denied the same day. On October 7, 2019, Greco appealed to
this Court. On October 17, 2019, the trial court issued an order directing Greco to
file and serve a Rule 1925(b) Statement. On November 6, 2019, Greco hand
delivered a copy of its Rule 1925(b) Statement to the trial court judge. However,
Greco never filed a copy of its Rule 1925(b) Statement with the trial court’s
prothonotary.
On February 18, 2020, the trial court issued its opinion pursuant to Rule
1925(a) (Rule 1925(a) opinion) stating that Greco’s Rule 1925(b) “Statement was
required to be filed on or before November 8, 2019. Any filings at this time would
be untimely under the Rules of Appellate Procedure and thus the appeal fails.” Trial
Ct. February 18, 2020 Op. at 8. By March 5, 2020 Order, this Court directed the
parties “to address in their principal briefs on the merits or other appropriate motion
whether [Greco] preserved any issues on appeal in light of [its] apparent failure to
file a [Rule 1925(b)] Statement.” March 5, 2020 Order. On March 6, 2020, Greco
filed its Rule 1925(b) Statement with this Court. By March 13, 2020 Order, this
Court directed that Greco’s Rule 1925(b) Statement be “stricken as unauthorized
under the Pennsylvania Rules of Appellate Procedure.” March 13, 2020 Order.
On May 11, 2020, Greco filed with this Court an Application for Leave
to File its Rule 1925(b) Statement Nunc Pro Tunc (Application). On May 14, 2020,
Greco refiled its Application.2 On May 18, 2020, this Court remanded the matter to
the trial court for the filing and disposition of the Application. The trial court held
a hearing on July 6, 2020. On August 12, 2020, the trial court granted Greco’s
Application and permitted Greco to file a Rule 1925(b) Statement Nunc Pro Tunc.
2
It appears Greco refiled its Application because the first filing did not include a cover
letter or proof of service.
3
The trial court issued a Rule 1925(a) opinion on September 25, 2020, stating that it
granted the Application under Rule 1925(b)(2), because the fact that Counsel
thought her secretary filed the Rule 1925(b) Statement was a non-negligent
circumstance which caused the non-filing. The trial court also addressed the merits
of the appeal in its Rule 1925(a) opinion.
Discussion
Preliminarily, this Court must address whether the trial court properly
granted Greco’s Application.3 The trial court opined:
[Rule] 1925 carves out an exception to the general rule by
allowing ‘in extraordinary circumstances . . . the filing of
a [Rule 1925(b)] Statement or amended or supplemental
[Rule 1925(b)] Statement nunc pro tunc.’ Pa.R.A.P.
1925(b)(2). This narrow exception has over time been
expanded to allow for appeals nunc pro tunc in cases
where the untimely filing was a result of non-negligent
circumstances on the part of appellant’s counsel or their
agent. See Bass v. Commonwealth, 401 A.2d 1133, 1135
(Pa. 1979). In such cases, the [a]ppellant must prove that:
(1) the appellant’s notice of appeal was filed late
as a result of non-negligent circumstances,
either as they relate to the appellant or the
appellant’s counsel; (2) the appellant filed the
notice of appeal shortly after the expiration date;
and (3) the appellee was not prejudiced by the
delay.
See [i]d. at 1135-36.
3
Greco and the City filed their briefs with this Court before the trial court granted Greco’s
Application and filed its Rule 1925(a) opinion. Although the Redevelopment Authority filed its
brief with this Court after the trial court’s ruling on Greco’s Application and Rule 1925(a) opinion
were filed, the Redevelopment Authority nonetheless did not address the trial court’s granting of
the Application or reasons therefor in its brief.
4
Trial Ct. September 25, 2020 Op. at 7 (emphasis added). The trial court thereafter
concluded:
After conducting an evidentiary hearing on July 6, 2020,
it is clear from the testimony of [Greco’s Counsel’s
(Counsel)] part-time assistant, Dania Amico Merrick ([]
[]Ms. Merrick[]) that there was a mistake as to the
failure to file the [Rule 1925(b) Statement] timely. The
testimony indicated that both [Counsel] and Ms. Merrick
were under the impression that the other had filed the
[Rule 1925(b) Statement]. After being made aware,
[Counsel] rectified her mistake by immediately filing the
[Rule 1925(b) Statement] with the prothonotary on March
10, 2020, and served a copy on [Appellees] and this Court.
Additionally, Ms. Merrick provided testimony regarding
new policies and remedial measures put in place to prevent
such a situation from occurring in the future. Such
testimony highlights the non-negligent nature of the
error and assures this Court that such an error is less likely
to occur again.
Id. at 8-9 (emphasis added).
The standard for nunc pro tunc relief is the same for filing a Rule
1925(b) Statement, as it is for the filing of an appeal.4 The Pennsylvania Supreme
4
The Rule 1925(b)(2) note expressly provides, in pertinent part:
In general, nunc pro tunc relief is allowed only when there has been
a breakdown in the process constituting extraordinary
circumstances. See, e.g., In re Canvass of Absentee Ballots of Nov.
4, 2003 Gen. Election, 843 A.2d 1223, 1234 (Pa. 2004) (‘We have
held that fraud or the wrongful or negligent act of a court official
may be a proper reason for holding that a statutory appeal period
does not run and that the wrong may be corrected by means of a
petition filed nunc pro tunc.’)[.] Courts have also allowed nunc
pro tunc relief when ‘non-negligent circumstances, either as they
relate to appellant or his counsel’ occasion delay. McKeown v.
Bailey, 731 A.2d 628, 630 (Pa. Super. 1999).
Pa.R.A.P. 1925(b)(2) Note (emphasis added).
5
Court has explained what constitutes non-negligent circumstances in order for the
exception to apply, as follows:
The exception for allowance of an appeal nunc pro tunc
in non-negligent circumstances is meant to apply only in
unique and compelling cases in which the appellant has
clearly established that she attempted to file an appeal,
but unforeseeable and unavoidable events precluded
her from actually doing so. See Cook [v. Unemployment
Comp. Bd. of Rev.], 671 A.2d [1130,] 1132 [(Pa. 1996)];
Perry v. Unemployment Comp. Bd. of Rev[.], . . . 459 A.2d
1342, 1343 ([Pa. Cmwlth.] 1983) ([the] fact that [the] law
clerk’s car broke down while he was on route to the post
office, precluding him from getting to the post office
before closing time, was a non-negligent happenstance for
granting appeal nunc pro tunc); Tony Grande, Inc. v.
Workmen’s Comp. Appeal Bd. (Rodriquez), . . . 455 A.2d
299, 300 ([Pa. Cmwlth.] 1983) (hospitalization of
appellant’s attorney for unexpected and serious cardiac
problems ten days into twenty day appeal period was
reason to allow appeal nunc pro tunc); Walker v.
Unemployment Comp. Bd. of Rev[.], . . . 461 A.2d 346, 347
([Pa. Cmwlth.] 1983) (U[nited] S[tates] Postal Service’s
failure to forward notice of referee’s decision to
appellant’s address, as appellant had requested,
warranted appeal nunc pro tunc). But cf. In re In the
Interest of C.K., . . . 535 A.2d 634, 639 ([Pa. Super.] 1987)
(appeal nunc pro tunc denied where counsel was absent
from office and did not learn of appellant’s desire to
appeal before expiration period because counsel
negligently failed to make arrangements to look over his
professional obligations); Moring v. Dunne, . . . 493 A.2d
89, 92-93 ([Pa. Super.] 1985) (although death of
appellant’s attorney may have qualified as a non-negligent
circumstance, appellant failed to prove that he
attempted to appeal on time but was precluded from
doing so as a result of receiving late notice of his
attorney’s death).
Criss v. Wise, 781 A.2d 1156, 1160 (Pa. 2001) (emphasis added).
Here, Greco did not establish that Counsel or her assistant attempted to
file the Rule 1925(b) Statement, and unforeseeable and unavoidable events
6
precluded either from actually doing so, only that each had thought the other had
filed it. “The delay in filing was not the result of exceptional circumstances; rather,
it was due to a mistake.” Noweck v. Dep’t of Transp., Bureau of Driver Licensing
(Pa. Cmwlth. No. 1991 C.D. 2016, filed October 23, 2017), slip op. at 6;5 see also
Moyd v. Cook-Artis (Pa. Cmwlth. No. 1453 C.D. 2008, filed February 10, 2009).6
“Thus, we hold that the [trial c]ourt erred in finding that [Greco was] entitled to [file
its Rule 1925(b) Statement] nunc pro tunc under the circumstances presented in this
case.” Criss, 781 A.2d at 1160.
Having determined that the trial court improperly granted the nunc pro
tunc filing of Greco’s Rule 1925(b) Statement, this Court must now determine
whether Greco preserved any issues on appeal by timely serving the trial court judge
with its Rule 1925(b) Statement, but not filing the Rule 1925(b) Statement with the
trial court prothonotary. Greco argues that Rule 1925(b)(2) permits the filing of a
Rule 1925(b) Statement nunc pro tunc to prevent a manifest injustice. Greco asserts
that a manifest injustice would result if Greco was precluded from proceeding based
on an extraordinary technical procedural violation. Appellees rejoin, in their
respective briefs, that the trial court properly concluded in its February 18, 2020
opinion that Greco had waived all issues for this Court’s review by failing to file of
record a Rule 1925(b) Statement within 21 days of the date of its order as directed.
“[I]n determining whether an appellant has waived [its] issues on
appeal based on non-compliance with [Rule 1925(b)], it is the trial court’s order that
triggers an appellant’s obligation under the rule, and, therefore, we look first to the
5
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §
69.414(a), an unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value, but not as binding precedent. The unreported opinions cited herein are
cited for their persuasive value.
6
The Moyd Court held: “The delay in filing the [Rule 1925(b) Statement] in this case was
not the result of exceptional circumstances but, rather, a simple mistake.” Moyd, slip op. at 6.
7
language of that order.” Berg v. Nationwide Mut. Ins. Co., Inc., 6 A.3d 1002, 1007-
08 (Pa. 2010) (plurality). In Berg, the issue before the Pennsylvania Supreme Court
was “[w]hether the [Pennsylvania] Superior Court erred in finding waiver of all
appellate issues for failing to serve the trial judge with a [Rule 1925(b) Statement],
when the trial judge’s order directing a [Rule 1925(b)] Statement to be filed, failed
to include language mandated by paragraphs (b)(3)(iii) and (iv) of [] Rule
1925(b)[.]” Berg, 6 A.3d at 1005.
The Pennsylvania Supreme Court explained:
[T]he trial court’s order instructed [the a]ppellants to ‘file
with the [c]ourt, and a copy with the trial judge, a Concise
Statement of Errors Complained of on Appeal pursuant to
[Rule] 1925(b) within twenty-one (21) days of the
issuance of this order.’ Order, 1/3/08 (emphasis added).
Despite any suggestion to the contrary, the express
language of [its] order did not instruct [the a]ppellants to
serve a copy of their [Rule] 1925(b) Statement on the trial
judge; rather, it directed [the a]ppellants to file copies of
their [Rule] 1925(b) Statement with the court and with the
trial judge. Although the instruction to file a document
with a trial judge is an oddity, we conclude [the a]ppellants
substantially complied with this directive by presenting a
copy to the prothonotary of Berks County.
Berg, 6 A.3d at 1008. The Berg Court’s holding was limited to its facts, as explained
therein:
[The Berg Court] hold[s] that the issues raised in [the
a]ppellants’ [Rule] 1925(b) Statement were not waived,
despite the fact that the statement was not personally
served on the trial judge, where personal service was
attempted by counsel and thwarted by the prothonotary,
and where the [trial] court’s Rule 1925([b]) order
specified ‘filing’ and not ‘service.’[7]
7
Indeed, the Pennsylvania Supreme Court noted:
8
Berg, 6 A.3d at 1012 (emphasis added).
Here, the trial court’s order specified:
AND NOW, this 17th day of October, 2019, the [trial
c]ourt having received a Notice of Appeal filed by
[Greco], it is hereby ORDERED and DECREED as
follows:
1) Appellant(s) shall file of record a Concise Statement
of Matters Complained of on Appeal pursuant to
[Rule] 1925(b) within twenty-one (21) days of the date
of this [o]rder and serve a copy of same upon Appellee(s)
and the [trial c]ourt, in accordance with [Rule] 1925(b)(1).
Appellant(s) may serve the [trial c]ourt at the chambers of
the [trial court judge] located on the third floor of the
Luzerne County Courthouse, by emailing a copy to
julie.berry@luzernecounty.org. or by mail addressed to
the Honorable Lesa S. Gelb, 200 North River Street,
Wilkes-Barre, PA 18711;
2) The [Rule 1925(b)] Statement shall concisely identify
each ruling or error [Greco] intend[s] to challenge with
sufficient detail, identifying all pertinent issues for the
[trial c]ourt;
3) Any issues not properly included in said [Rule
1925(b)] Statement shall be deemed waived; and,
We do not mean to suggest . . . that the trial court’s order ‘trumps
Rule 1925(b).’ See Dissenting Opinion . . . , 6 A.3d at 1018. We
simply recognize the unique position in which [the a]ppellants
were placed as a result of the trial court’s failure to adhere to the
specific requirements of Rule 1925(b), the same rule under which
the dissent concludes [the a]ppellants’ issues are waived.
Berg, 6 A.3d at 1010 n.16 (emphasis added). The Berg Court further noted: “Our decision is based,
in part . . . on [the a]ppellants’ substantial compliance with the express terms of the trial judge’s
order.” Id. at 1010 n.18.
9
4) Appellee(s) may file a response to the [Rule 1925(b)
Statement] within twenty-eight (28) days of the date of
this order.
The Clerk of Judicial Records-Prothonotary is directed to
serve notice of the entry of this [o]rder pursuant to
[Pennsylvania Rule of Civil Procedure] No. 236.
Trial Ct. October 17, 2019 Order (text emphasis added; footnote omitted).
Rule 1925(b) expressly provides, in relevant part:
Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial
court. If the judge entering the order giving rise to the
notice of appeal ([]judge[]) desires clarification of the
errors complained of on appeal, the judge may enter an
order directing the appellant to file of record in the trial
court and serve on the judge a concise statement of the
errors complained of on appeal ([Rule 1925(b)]
Statement[]).
(1) Filing and service. The appellant shall file of record
the [Rule 1925(b)] Statement and concurrently shall
serve the judge. Filing of record shall be as provided in
[Rule] 121(a) . . . . Service on the judge shall be at the
location specified in the order, and shall be either in
person, by mail, or by any other means specified in the
order. Service on the parties shall be concurrent with
filing and shall be by any means of service specified under
[Rule] 121(c).
(2) Time for filing and service.
(i) The judge shall allow the appellant at least 21 days from
the date of the order’s entry on the docket for the filing and
service of the [Rule 1925(b)] Statement. Upon application
of the appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an
amended or supplemental [Rule 1925(b)] Statement to be
filed. Good cause includes, but is not limited to, delay in
the production of a transcript necessary to develop the
[Rule 1925(b)] Statement so long as the delay is not
attributable to a lack of diligence in ordering or paying for
such transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for the
10
filing of a [Rule 1925(b)] Statement or amended or
supplemental [Rule 1925(b)] Statement nunc pro tunc.[8]
....
(3) Contents of order. The judge’s order directing the
filing and service of a [Rule 1925(b)] Statement shall
specify:
(i) the number of days after the date of entry of the judge’s
order within which the appellant must file and serve the
[Rule 1925(b)] Statement;
(ii) that the [Rule 1925(b)] Statement shall be filed of
record;
(iii) that the [Rule 1925(b)] Statement shall be served on
the judge pursuant to paragraph (b)(1) and both the place
the appellant can serve the [Rule 1925(b)] Statement in
person and the address to which the appellant can mail the
[Rule 1925(b)] Statement. In addition, the judge may
provide an email, facsimile, or other alternative means for
the appellant to serve the [Rule 1925(b)] Statement on the
judge; and
(iv) that any issue not properly included in the [Rule
1925(b)] Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
Pa.R.A.P. 1925(b) (text emphasis added).
The trial court’s order clearly specified that Greco “shall file of record
a [Rule] 1925(b) [Statement] within twenty-one (21) days of the date of this [o]rder”
and that “[a]ny issues not properly included in said [Rule 1925(b)] Statement shall
be deemed waived.” Trial Ct. October 17, 2019 Order. Rule 1925(b) is mandatory.
“Pursuant to [Rule 1925(b)], an appellant must comply whenever the trial court
orders the filing of a [Rule] 1925(b) [S]tatement in order to preserve a claim for
appellate review. Commonwealth v. Lord, . . . 719 A.2d 306 ([Pa.] 1998).” Egan v.
8
As discussed above, although Greco filed an Application for Leave to File its Rule
1925(b) Statement Nunc Pro Tunc, which the trial court granted, the trial court erred by granting
the Application because Greco’s failure to file was not caused by non-negligent circumstances.
11
Stroudsburg Sch. Dist., 928 A.2d 400, 402 (Pa. Cmwlth. 2007) (emphasis added).
Consequently, Greco’s failure to file its Rule 1925(b) Statement with the trial court
prothonotary as directed requires this Court to conclude that the issues raised in
Greco’s Rule 1925(b) Statement were waived. Because Greco did not file its Rule
1925(b) Statement with the trial court prothonotary as directed, this Court is
constrained to quash Greco’s appeal.
For all of the above reasons, Greco’s appeal is quashed.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas J. Greco and :
G Net Commco., Inc., :
Appellants :
:
v. :
:
City of Wilkes-Barre and :
Redevelopment Authority of : No. 1425 C.D. 2019
City of Wilkes-Barre :
ORDER
AND NOW, this 2nd day of March, 2021, Thomas J. Greco and G Net
Commco., Inc.’s appeal from the Luzerne County Common Pleas Court’s September
9, 2019 order is quashed.
_________________________________
ANNE E. COVEY, Judge