Marcos Sanchez, M.D. v. Mehdi Nikparvar ( 2016 )


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  • J. A33007/15
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    MARCOS SANCHEZ, M.D.                          :         IN THE SUPERIOR COURT OF
    :               PENNSYLVANIA
    v.                       :
    :
    MEHDI NIKPARVAR, M.D. AND                     :
    INCARE, LLC,                                  :              No. 1407 EDA 2013
    :
    Appellants          :
    Appeal from the Judgment, April 17, 2013,
    in the Court of Common Pleas of Carbon County
    Civil Division at No. 11-0247
    BEFORE: FORD ELLIOTT, P.J.E., STABILE AND STRASSBURGER,* JJ.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED FEBRUARY 23, 2016
    Mehdi Nikparvar, M.D. (hereinafter “appellant” or “defendant”),1
    appeals from the April 17, 2013 order from the Carbon County Court of
    Common       Pleas   denying   his   motion       for   post-trial   relief    pursuant    to
    Pa.R.C.P. 227.1(a)(1),      following   a     jury       trial   verdict      in   favor   of
    Marcos Sanchez, M.D. (hereinafter “appellee” or “plaintiff”).2 We affirm.
    The trial court provides the following procedural history:
    * Retired Senior Judge assigned to the Superior Court.
    1
    For the purposes of this memorandum, “appellant” shall refer only to
    Dr. Nikparvar, unless otherwise noted, as InCare has not filed a concise
    statement    of  matters   complained    of  on   appeal   pursuant   to
    Pa.R.A.P. 1925(b). See infra.
    2
    Judgment was thereafter entered on April 17, 2013.
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    Plaintiff instituted this action on January 31, 2011,
    alleging, among other things, breach of contract and
    violation of the Pennsylvania Wage Payment and
    Collection Law.[3]      On March 22, 2011, default
    judgment was entered in favor of Plaintiff and
    against     Defendants.        Several   weeks   later,
    Defendants obtained legal counsel in the person of
    Attorney Gregory Moro who then in turn filed a
    petition requesting this Court to strike the judgment,
    or in the alternative open said judgment claiming
    they       were      never      served     with    the
    complaint.[Footnote 1] Thereafter a rule was issued
    upon Plaintiff as to why Defendants’ petition should
    not be granted and a hearing was scheduled on the
    petition. On September 12, 2011, the Honorable
    Senior Judge Stine granted Defendants’ petition to
    open judgment and required Defendants to file a
    responsive pleading thereafter.
    Three months later, on December 13, 2011,
    Attorney Moro filed a petition to withdraw as counsel
    with said petition being granted on January 17,
    2012. Thereafter, Plaintiff filed various motions to
    compel discovery to which Defendants failed to
    respond and failed to appear before the Court when
    hearings on the motions were held.
    After   a     pre-trial  conference,    whereby
    Defendants failed to appear, the matter was
    scheduled for trial to be held on February 4, 2013.
    Notice of the trial order was sent on August 14, 2012
    to Plaintiff and both Defendants to the addresses
    each party provided to the Court. On February 4,
    2013, the trial in this matter was held despite
    Defendants’ failure to appear for the trial. After
    Plaintiff presented his case-in-chief the jury found in
    favor of Plaintiff and against Defendants. The verdict
    was entered on February 4, 2013, and notice of such
    was sent to each Defendant. On February 12, 2013,
    Defendant, Nikparvar, filed a petition to strike or
    open judgment; however this Court denied such
    petition on the basis that said petition was
    3
    43 P.S. § 260.1, et seq.
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    premature since no judgment had been entered
    against either Defendant.
    On March 1, 2013, Defendants filed a post-trial
    motion and a hearing was scheduled for March 22,
    2013. At the hearing Plaintiff’s counsel objected to
    Defendants’ post-trial motion as being untimely
    claiming Defendants waived such right to assert any
    post-trial motion.      This Court however denied
    Plaintiff’s objection to ensure Defendants did not
    have a meritorious defense for their failure to appear
    at trial and on the underlying breach of contract
    action.     On April 17, 2013, this Court denied
    Defendants’ post-trial motion.        A month later
    [May 17, 2013] Defendants filed this present appeal
    of this Court’s Order of April 17, 2013.
    By Order of Court dated May 17, 2013, and
    docketed May 20, 2013, this Court directed
    Defendants to file a concise statement of the matters
    complained of in the appeal within twenty-one (21)
    days from the date of the order being docketed
    pursuant to Pennsylvania Rule of Appellate Procedure
    1925(b).
    [Footnote 1] Defendants did file an amended petition
    to strike or open the judgment two days later.
    Trial court opinion, 6/12/13 at 1-3.4
    On June 3, 2013, InCare filed a petition of bankruptcy with the United
    States Bankruptcy Court for the Eastern District of Pennsylvania. InCare’s
    counsel filed notice of the bankruptcy proceedings with this court on
    June 14, 2013.    On October 7, 2013, in a per curiam order, this court
    4
    The trial court filed two opinions in this matter, on June 12, 2013 and
    July 31, 2015, because it was never notified of InCare’s bankruptcy
    proceedings with the Bankruptcy Court. (See trial court opinion, 7/31/15 at
    2 n.2.)
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    ordered a stay on all proceedings against both appellants while InCare’s
    bankruptcy proceedings were pending pursuant to 11 U.S.C. § 362. Upon
    petition of appellee, the bankruptcy court lifted the automatic stay on
    June 4, 2015, only as to Dr. Nikparvar. On June 15, 2015, this court lifted
    its stay on the instant appeal.
    [O]n June 10, 2015, only Appellant Nikparvar filed a
    Concise Statement of Matters Complained of on
    Appeal, pursuant to Pennsylvania Rules of Appellate
    Procedure 1925(b).      In this statement, Appellant
    Nikparvar raised the following two issues:
    1)    The Court erred in its February 7, 2013
    Order because InCare compensated
    Plaintiff/Appellee for all amounts owed
    under Plaintiff/Appellee’s employment
    contract and thus, neither Dr. Nikparvar
    nor InCare was liable under the Wage
    Payment and Collection Law.         See
    43 P.S. § 260.1 et seq.; and
    2)    The Court erred in its April 17, 2013
    Order because the verdict against
    Dr. Nikparvar     was     invalid     since
    Dr. Nikparvar did not receive notice of,
    and did not attend, the trial.         See
    Helper v. Urban, 
    518 Pa. 482
    , 484
    (1988) (opening judgment where, “the
    petition to open [is] promptly filed;
    (2) the failure to appear or file a timely
    answer [is excused]; and (3) the party
    seeking to open the judgment [has a]
    meritorious defense.”
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    Trial court opinion, 7/31/15 at 3-4 (footnote omitted). The trial court issued
    an opinion pursuant to Pa.R.A.P. 1925(a) on July 31, 2015.5
    Appellant raises the following issue on appeal:
    1.     Whether the Court erred in its April 17, 2013
    Order because the verdict against Appellant,
    Dr.      Nikparvar        (“[a]ppellant”      or
    “Dr. Nikparvar”[)]    was     invalid    because
    Dr. Nikparvar did not receive notice of, and did
    not attend, the trial, and was deprived of the
    opportunity to defend against the claims[?]
    Appellant’s brief at 4.
    Before we can address appellant’s issue on its merits, we must first
    determine whether appellant’s post-trial motion is timely. The Pennsylvania
    Rules of Civil Procedure require the following:
    (c)    Post-trial motions shall be filed within ten days
    after
    (1)    verdict, discharge of the jury
    because of inability to agree, or
    nonsuit in the case of a jury trial;
    ....
    Pa.R.C.P. 227.1(c)(1).     A trial court is free to either dismiss an untimely
    post-trial motion or ignore the motion’s untimeliness and consider it on its
    merits.   Ferguson v. Morton, 
    84 A.3d 715
    , 718 n.4 (Pa.Super. 2013),
    appeal denied, 
    97 A.3d 745
    (Pa. 2014) (citations omitted).
    “Whenever a party files post-trial motions at a time
    when the court has jurisdiction over the matter but
    5
    The trial court also questions the timeliness of the filing of the Rule 1925
    statement, but then addresses the issues raised therein.
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    outside the ten-day requirement of Pa.R.C.P. 227.1,
    the trial court’s decision to consider the motions
    should not be subject to review unless the opposing
    party objects.”     Mammoccio v. 1818 Market
    Partnership, 
    734 A.2d 23
    (Pa.Super. 1999) (citing
    Millard v. Nagle, 402 Pa.Super. 376, 
    587 A.2d 10
    ,
    12 (1991) affirmed, 
    533 Pa. 410
    , 
    625 A.2d 641
               (1993)). If the opposing party objects, then the trial
    court must consider the fault of the party filing late
    and the prejudice to the opposing party. 
    Id. Watkins v.
    Watkins, 
    775 A.2d 841
    , 845 n.1 (Pa.Super. 2001). Here, the
    trial court denied appellant’s post-trial motion on both procedural and
    substantive grounds.      Specifically, the trial court found that the post-trial
    motion filed by appellant and InCare was untimely because it was filed more
    than ten days after the jury verdict.        (See trial court order, 4/17/13 at
    1 n.1, citing Pa.R.C.P. 277.1(c).)     We could affirm the trial court on this
    basis; however, even in reviewing appellant’s issue, because the trial court
    held a hearing and denied appellant’s motion, we would grant no relief.
    On appeal, appellant avers that he never received notice of his
    February 4, 2013 trial, and that he has overcome the mailbox rule’s
    presumption of receipt.
    The mailbox rule provides that “depositing in
    the post office a properly addressed prepaid letter
    raises a natural presumption, founded in common
    experience, that it reached its destination by due
    course of mail.” Jensen v. McCorkell, 
    26 A. 366
    ,
    367 (Pa. 1893) (citation omitted).            As the
    Pennsylvania     Supreme     Court  noted:        “The
    overwhelming weight of statistics clearly indicates
    that letters properly mailed and deposited in the post
    office are received by the addressees.” Meierdierck
    v. Miller, 
    147 A.2d 406
    , 408 (Pa. 1959). Thus,
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    “[e]vidence that a letter has been mailed will
    ordinarily be sufficient to permit a [fact finder] to
    find that the letter was in fact received by the party
    to whom it was addressed.” Shafer v. A. I. T. S.,
    Inc., 
    428 A.2d 152
    , 156 (Pa.Super. 1981) (citations
    omitted).
    However, “evidence of actual mailing is not
    required.” Commonwealth, Dep’t of Transp. v.
    Brayman Constr. Corp., 
    513 A.2d 562
    , 566
    (Pa.Cmwlth. 1986)[]. The Superior Court has held
    that “when a letter has been written and signed in
    the usual course of business and placed in the
    regular place of mailing, evidence of the custom of
    the establishment as to the mailing of such letters is
    receivable as evidence that it was duly mailed.”
    Christie v. Open Pantry Food Marts Inc. of
    Delaware Valley, 
    352 A.2d 165
    , 166-167
    (Pa.Super. 1975) (citation omitted). To trigger the
    presumption of receipt, “the party who is seeking the
    benefit of the presumption must adduce evidentiary
    proof that the letter was signed in the usual course
    of business and placed in the regular place of
    mailing.” Geise v. Nationwide Life & Annuity Co.
    of America, 
    939 A.2d 409
    , 423 (Pa.Super. 2007)
    (emphasis added); 
    Shafer, 428 A.2d at 156
    . “A
    presumption that a letter was received cannot be
    based on a presumption that the letter was mailed.
    A presumption cannot be based on a presumption.”
    
    Geise, 939 A.2d at 423
    (citations omitted).
    Documentary evidence of mailing or testimony from
    the author that a document was mailed may
    establish the presumption of receipt.            See
    Commonwealth, Dep’t of Transp. v. Grasse, 
    606 A.2d 544
    , 546 (Pa.Super. 1992) (holding appellees
    met burden of proof of mailing by producing certified
    driving record which included document showing
    notice was mailed; cf. 
    Meierdierck, 147 A.2d at 408
              (holding that “[w]here the use of the mails as a
    means of acceptance is authorized or implied from
    the surrounding circumstances, the acceptance is
    complete by posting the letter in normal mail
    channels, without more.”).
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    Szymanski v. Dotey, 
    52 A.3d 289
    , 292-293 (Pa.Super. 2012) (emphasisin
    original).
    In the instant appeal, appellant cites two cases in which it was
    determined that the mailbox rule’s presumption did not apply because the
    requirements to meet the presumption were not met. See 
    Szymanski, 52 A.3d at 293
    ; Commonwealth v. Thomas, 
    814 A.2d 754
    , 759 (Pa.Super.
    2002). Both cases are distinguishable from the present case.
    In Szymanski, the Civil Court Administrator testified that she was the
    author of a trial notice to be sent to David Szymanski, the appellant in the
    case. 
    Szymanski, 52 A.3d at 293
    . The Court Administrator did not testify,
    “that she placed the notice in her office’s usual place for outgoing mail, nor
    did she testify that she or any other employee mailed it via any method of
    mailing.” 
    Id. Moreover, the
    trial court in Szymanski found that the record
    did not reflect any documentary evidence indicating that the trial notice was
    mailed. In Thomas, this court found that testimony regarding the general
    practice of mailing hearing notices was not sufficient to establish the mailbox
    rule’s presumption of receipt. 
    Thomas, 814 A.2d at 759
    . The record also
    did not reflect any documentary evidence that the notice was mailed. 
    Id. at 760.
    Here, appellees did not introduce any testimony from any employee of
    the Carbon County Court of Common Pleas indicating that appellant was
    mailed a trial notice. Unlike Szymanski and Thomas, however, the record
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    in this case reflects that notice of trial was mailed to appellant. The case
    docket maintained by the trial court indicates that appellant was mailed a
    trial notice:
    183. 8/15/12 RCP (236)[6] NOTICE MAILED TO
    ATTY BERGSTEIN & DEFS (JURY TRIAL ORDER)
    Reproduced record at 8a.         This entry in the case docket provides
    documentary evidence that the trial notice was mailed to appellant, as
    contemplated by this court in Szymanski and by the Commonwealth Court
    in Grasse. Therefore, we find that the mailbox rule does apply in this case,
    and that the presumption of receipt has been met.
    Appellant next avers that even if the mailbox rule did apply, he has
    overcome the presumption of receipt. Specifically, appellant claims that the
    trial court’s reliance on Rothstein v. Polysciences, 
    853 A.2d 1072
    (Pa.Super. 2004), is misguided because the decision in Rothstein was
    primarily based on an attorney’s failure to comply with a local rule in the
    Bucks County Court of Common Pleas, which required the attorney to notify
    the Bucks County Court Administrator of any change in the attorney’s
    address. (Appellant’s brief at 16-17; 
    Rothstein, 853 A.2d at 1075
    .) While
    Carbon County does not have a similar local rule to the Bucks County rule at
    6
    The Pennsylvania Rules of Civil Procedure require the prothonotary to
    “immediately give written notice of the entry of . . . any . . . order or
    judgment to each party’s attorney of record or, if unrepresented, to each
    party.   The notice shall include a copy of the order or judgment.”
    Pa.R.C.P. 236 (a)(2).
    -9-
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    issue in Rothstein, we agree with the trial court that appellant, who had
    been represented by numerous counsel throughout the course of this
    litigation, had “a duty and obligation to notify the Court or Prothonotary of
    his change of address.” (Trial court order, 4/17/13 at 2 n.1.)
    Moreover, appellant provided no evidence other than his own
    testimony that he did not receive a notice of trial.     As noted by the trial
    court, mere testimony of lack of receipt is not enough to overcome the
    mailbox rule’s presumption.    Samaras v. Hartwick, 
    698 A.2d 71
    , 73-74
    (Pa.Super. 1997), quoting 
    Grasse, 606 A.2d at 545
    (“proof of a mailing
    raises a rebuttable presumption that the mailed item was received and it is
    well-established that the presumption under the mailbox rule is not nullified
    solely by testimony denying receipt of the item mailed”).        The trial court
    found appellant’s testimony regarding his lack of notice to be incredible.
    (See trial court opinion, 7/31/15 at 9.) We also join the trial court in finding
    it “puzzling how [appellant] can claim he did not receive any Court orders
    after May of 2012 or notice of the trial, yet he received notice of the jury
    verdict that was sent to the same Bloomsburg address as all previous Court
    orders.”   (Trial court order, 4/17/13 at 2 n.1.)      We therefore find that
    appellant is unable to overcome the mailbox rule’s presumption of receipt of
    the trial notice.
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    Judgment affirmed. Although this court has not found this appeal to
    be wholly frivolous, we do remand for a reward of costs to appellee pursuant
    to Pa.R.A.P. Chapter 27. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/23/2016
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