Hallacher, Jr., N. v. Schick, L. ( 2022 )

J-S30040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NEVIN HALLACHER, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LORETTA SCHICK : No. 63 MDA 2021
Appeal from the Order Entered December 22, 2020
In the Court of Common Pleas of Berks County Civil Division at No(s):
20-17755
BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JANUARY 14, 2022
Nevin Hallacher, Jr. (Plaintiff) appeals, pro se, from an order of the Court
of Common Pleas of Berks County (trial court) requiring Loretta Schick
(Defendant) to give him access to a house that they jointly own to retrieve his
personal property from that house. For the reasons set forth below, we affirm.
On November 13, 2020, Plaintiff commenced this action pro se by filing
a document titled as an emergency motion to gain access to co-owned real
property (the Emergency Motion). In this filing, Plaintiff alleged that he and
Defendant, his mother, are co-owners of a house from which she evicted him
and sought a court order requiring Defendant to give him access to the house
to retrieve his personal property that was still in the house. Emergency Motion
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* Retired Senior Judge assigned to the Superior Court.
J-S30040-21
¶¶3-12, 20-24, 30. Plaintiff did not file any complaint in this action seeking
an adjudication of his ownership rights in the house or seeking damages for
deprivation of those rights.
On November 18, 2020, the trial court entered an order scheduling a
hearing on the Emergency Motion for December 2, 2020. Trial Court Order,
11/18/20. Plaintiff served the Emergency Motion on Defendant on November
13, 2020, but did not send the order scheduling the hearing to Defendant.
Plaintiff’s Answer to Defendant’s Motion for Reconsideration at 3 ¶7. At the
December 2, 2020 hearing, Plaintiff appeared and Defendant did not appear,
and the trial court entered Plaintiff’s proposed order. Trial Court Order,
12/2/2020.
On December 3, 2020, Defendant filed a motion for reconsideration of
the December 2, 2020 order seeking to vacate that order on the ground that
she did not receive notice of the hearing. Defendant’s Motion for
Reconsideration ¶¶5-9. On December 11, 2020, the trial court entered an
order scheduling a hearing on Defendant’s motion for reconsideration. Trial
Court Order, 12/11/20. Prior to the hearing on the motion for reconsideration,
Plaintiff filed a response to the motion for reconsideration and two other
motions concerning his access to the house to obtain his personal property.
Plaintiff’s Answer to Defendant’s Motion for Reconsideration; Docket Entries
at 1-2.
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On December 16, 2020, the trial court notified the parties that due to
the Covid-19 pandemic, the hearing would be conducted on a virtual platform
and requested that the parties confirm their email addresses to which the link
for the hearing would be sent. 12/16/20 Email, attached to Plaintiff’s 1/4/21
Motion for Reconsideration as Exhibit A. Plaintiff confirmed his email address
and received the link for the hearing, but although he clicked on the link at
the scheduled time of the hearing and was placed in the waiting room, he was
reported as having left the waiting room at the time that the hearing started
and, as a result, the hearing proceeded in his absence. Plaintiff’s 1/4/21
Motion for Reconsideration ¶¶4-7; N.T., 12/17/20, at 2. At this brief hearing,
which lasted less than 10 minutes, the trial court emphasized to Defendant’s
counsel, who was able to successfully connect, that it was important that an
order be entered promptly that safely provided Plaintiff access to the house to
obtain his personal property. N.T., 12/17/20, at 2-6. The trial court did not
issue any order in Plaintiff’s absence, but suggested that, to expedite the
process, Defendant’s counsel could draft and submit an order giving Plaintiff
access to retrieve his belongings and Defendant’s counsel agreed to do so.
Id. at 4-6.
After the hearing was over, Plaintiff notified the trial court and
Defendant’s counsel that he had been on the computer but that he was not
let into the hearing. 12/17/20 Emails, attached to Plaintiff’s 1/4/21 Motion
for Reconsideration as Exhibits D, E, F, & G. Defendant’s counsel emailed a
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proposed order to Plaintiff and the trial court on December 18, 2020, and
Plaintiff on December 18, 2020 emailed Defendant’s counsel and the trial court
that he objected to the proposed order. 12/18/20 Emails, attached to
Plaintiff’s 1/4/21 Motion for Reconsideration as Exhibits H & I. On December
21, 2020, the trial court signed the proposed order and that order was entered
on December 22, 2020. This order vacated the December 2, 2020 order and
ordered that Plaintiff was granted access to the house at issue for up to two
eight-hour periods of time to remove his personal property and that Plaintiff
could bring a constable with him, at a cost to be shared by the parties. Trial
Court Order, 12/22/20.
Plaintiff filed motions challenging the December 22, 2020 order and
seeking a new hearing and the trial court scheduled an in person hearing on
these motions for January 14, 2021. Trial Court Orders, 12/31/20; Trial Court
Orders, 1/4/21. On January 11, 2021, before that hearing, Plaintiff filed the
instant appeal.1
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1 Plaintiff asserts that the December 22, 2020 order is appealable as a final
order. Because the proceeding in which the order was filed was a petition for
an emergency order to provide Plaintiff access to a house to retrieve his
personal property and not a complaint seeking to determine or enforce
ownership rights with respect to the house in question or seeking damages for
eviction or interference with those rights, we agree that the order disposed of
the entire proceeding and that it is therefore a final order under Pa.R.A.P.
341(b)(1). Although the trial court in its opinion states that this matter is
moot and Plaintiff agrees that the appeal is moot, but contends that this Court
should nonetheless hear the appeal, Trial Court Opinion at 2, Appellant’s Brief
at 15, we cannot conclude on the record before us that the appeal is moot.
(Footnote Continued Next Page)
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Plaintiff argues in this appeal that the December 22, 2020 order must
be vacated because he was not present at the December 17, 2020 hearing
that resulted in the December 22, 2020 order and because the relief that the
December 22, 2020 order granted is allegedly inadequate. Before addressing
the merits of these issues, however, we must consider whether Plaintiff failed
to preserve any issues for review.
On February 9, 2021, the trial court entered an order pursuant to
Pa.R.A.P. 1925(b) directing Appellant to file and serve on the trial judge within
21 days a concise statement of errors complained of on appeal and stating
that any issue not included in a timely filed statement of errors complained of
on appeal “shall be deemed waived.” Trial Court Order, 2/9/21. In its March
5, 2021 Rule 1925(a) opinion, the trial court stated that no statement of errors
complained of on appeal had been filed and concluded that Plaintiff had
therefore waived all issues in the appeal. Trial Court Opinion at 1-2.
We agree that Plaintiff waived all issues in this appeal. The law is clear
that where the trial court has issued a Rule 1925(b) order and the docket
shows that it was sent by the court to all parties, the appellant’s failure to file
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The record does not show that Plaintiff has retrieved his personal property and
Plaintiff’s admission that the case is moot is based solely on the fact that the
trial court entered an order on February 9, 2021 vacating the December 22,
2020 order. Appellant’s Brief at 15. That February 9, 2021 order, however,
is of no effect, as it was filed after Plaintiff filed the instant appeal and more
than thirty days after the December 22, 2020 order and the trial court
therefore no longer had jurisdiction to grant reconsideration of that order or
to vacate it. Pa.R.A.P. 1701(a), (b)(3).
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and serve on the trial court a statement of errors complained of on appeal in
compliance with that order automatically waives all issues on appeal. U.S.
Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v. Hua,
193 A.3d 994, 997 (Pa. Super. 2018); In re Estate of Boyle, 77 A.3d 674,
679 (Pa. Super. 2013); Everett Cash Mutual Insurance Co. v. T.H.E.
Insurance Co., 804 A.2d 31, 33-34 (Pa. Super. 2002); Giles v. Douglass,
747 A.2d 1236, 1237 (Pa. Super. 2000). The docket entries in this case show
that copies of the trial court’s 1925(b) order were sent to the parties on that
date. Docket Entries at 2. The docket also shows that Plaintiff filed no concise
statement of errors complained of on appeal in the 21-day period after the
trial court’s Rule 1925(b) order. Id. Plaintiff does not contend that he timely
filed any statement of errors complained of in this appeal or that he did not
receive the trial court’s Rule 1925(b) order. Nor does he assert in his brief
that anything excused his failure to comply with the trial court’s Rule 1925(b)
order.
Moreover, even if Plaintiff were not barred by waiver, his appeal would
fail on the merits. Contrary to Plaintiff’s contentions, there was no improper
ex parte communication between the trial court and Defendant’s counsel and
Plaintiff was not deprived of the opportunity to be heard. While Plaintiff was
not present at the on-line hearing, that was the result of a computer problem
that led the court to believe that Plaintiff had left the virtual waiting room and
chosen not to participate, N.T., 12/17/20, at 2, not an intentional exclusion or
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any failure to give Plaintiff adequate notice of the hearing. The hearing was
transcribed and its contents were not concealed from Plaintiff.
In addition, Plaintiff was served with Defendant’s motion for
reconsideration of the December 2, 2020 order on December 3, 2020 and
responded at length to that motion on December 7, 2020, 10 days before the
hearing. Plaintiff’s Answer to Defendant’s Motion for Reconsideration.
Plaintiff’s objections to the vacating of the December 2, 2020 order had
therefore been presented to the trial court before the hearing. Plaintiff also
was given notice of the proposed order on December 18, 2020 and notified
the trial court that same day, before the trial court signed the order on
December 21, 2020, that he objected to the proposed order on the ground
that it limited his rights to access the house. Plaintiff’s 1/4/21 Motion for
Reconsideration as Exhibits H & I.
Plaintiff’s claim that the relief that the December 22, 2020 order granted
is inadequate is likewise without merit. This case was brought to obtain an
order allowing Plaintiff to retrieve personal belongings. The sole issue before
the trial court in this proceeding was Plaintiff’s emergency need to access the
jointly owned house to retrieve his personal property, not his ownership rights
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with respect to the house or whether Defendant had wrongfully excluded him
from the house.2
The relief granted in the December 22, 2020 order addressed that
limited issue of access to retrieve personal belongings and provided
reasonable and appropriate relief, up to two eight-hour periods of access with
the presence of a constable, with that expense shared by the parties. Trial
Court Order, 12/22/20. The fact that the order does not require Defendant to
provide unlimited access or impose all costs on Defendant does not make it
an unreasonable resolution of the limited issue of emergency need for access
to retrieve personal property or make it an abuse of the trial court’s discretion.
If Plaintiff wishes to assert claims that his joint ownership of the property
entitles him to access to the house other than to retrieve his belongings or
that he is entitled to compensation for expenses wrongfully caused by
Defendant, his remedy is to file an action to resolve the issue of ownership of
the house or to seek damages or other relief for violation of those ownership
rights, not to attempt to convert a proceeding to obtain access to retrieve
personal property into a litigation over the ownership of real property.
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2 Indeed, if this proceeding encompassed any claims beyond access to retrieve
personal property, the order of December 22, 2020 would not be a final order,
as it would not dispose of all claims, and we would be required to quash this
appeal. See Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. Super. 2003)
(“Generally, only final orders are appealable, and final orders are defined as
orders disposing of all claims and all parties”).
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For the foregoing reasons, we conclude that Plaintiff’s failure to file a
Rule 1925(b) statement waived all issues in this appeal and that even if it had
not, the trial court did not err in entering the December 22, 2020 order.
Accordingly, we affirm the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2022
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