Kraft Concrete Products v. Dahlstrom, G. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KRAFT CONCRETE PRODUCTS, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GILBERT DAHLSTROM
Appellant No. 917 WDA 2015
Appeal from the Order Entered May 14, 2015
In the Court of Common Pleas of Venango County
Civil Division at No(s): Civil 1267-2012
Civil No. 1677-2004
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 21, 2016
Appellant, Gilbert Dahlstrom, appeals from the May 14, 2015 order
denying his motion to reinstate his post-verdict and appellate rights nunc
pro tunc. After careful review, we affirm.
The trial court summarized the facts and procedural history of this
case as follows.
[This case] involves litigation dating back to
2004, sounding in trespass, with many docketed
Opinions and Orders. Relevant to the current
appeal, [the trial] court held a trial in July 2014
regarding Appellant’s continued trespass on [the]
property [of Kraft Concrete Products, Inc.
(Appellee)] in violation of court orders. Following
the trial[,] the [trial] court issued [an] Order and
accompanying Findings dated January 22, 2015, and
filed [it] with the Venango County Prothonotary
January 23, 2015. The Order and Findings were in
favor of Appellee. On February 19, 2015 Appellant
filed a [Pennsylvania Rule of Appellate Procedure
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1925(b)] Concise Statement of Matters Complained
of on Appeal and Notice of Appeal, without having
filed post-trial motions.
By Order dated March 17[, 2015], the Superior
Court noted that Appellant had failed to follow proper
procedure by failing to file post-trial motions within
ten days, therefore preserved no issues for appeal.
The Order allowed for Appellant to address a letter to
show cause as to why the appeal should not be
dismissed. On March 25[, 2015], Appellant
requested an extension to respond to the Rule to
Show Cause, which the Superior Court granted
March 27[, 2015]. On April 6[, 2015], Appellant
again requested additional time, which was granted
by the Superior Court [on] April 10[, 2015], by Order
also noting that no further extensions would be
permitted. An examination of the Superior Court
docket does not indicate a letter ever being filed, and
on May 5, 2015, the Superior Court dismissed the
appeal sua sponte because issues were not
preserved for appeal by post-trial motions.
[Superior Court Order, 290 WDA 2015, 5/5/15, at
1.]
Following the Superior Court’s May 5[, 2015]
Order, Appellant filed Motion to Reinstate the
Defendant’s Post Verdict and Appellate Rights Nunc
Pro Tunc. In this motion, Appellant made no
representations as to why the deadline to file post-
trial motions was missed, why Appellant did not
write the letter to show cause requested by the
Superior Court, or the legal grounds on which post-
trial motions would lie. The motion only states [it]
would not prejudice Appellees, and requests the
[trial] court to permit Appellant to raise issues in
post-trial motions or on appeal. The [trial] court
denied the motion by Order dated May 13[, 2015,
and entered May 14, 2015].
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Trial Court Opinion, 11/4/15, at 1-2.1 On June 11, 2015, Appellant filed a
timely notice of appeal.2
On appeal, Appellant presents the following issue for our review.
Whether the trial court abused its discretion or erred
as a matter of law in denying [Appellant’s] motion
for an appeal nunc pro tunc[?]
Appellant’s Brief at 5.
This Court reviews the denial of permission to file a post-trial motion
nunc pro tunc according to the following principles.
The decision to allow the filing of a post-trial motion
nunc pro tunc is vested in the discretion of the trial
court. Korn v. Consol. Rail Corp., 512 A.2d 1266(Pa. Super. 1986). We will not reverse unless the
trial court abused its discretion. Id. at 1269.
____________________________________________
1
We note that the trial court’s opinion does not contain pagination. For ease
of review, we have assigned each page a corresponding page number.
2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
Moreover, we note that it appears Appellant is now deceased. On
February 18, 2016, during the pendency of this appeal, a letter from this
Court to Appellant was returned with the envelope marked on February 16,
2016, “return to sender deceased.” No party has filed an application to
substitute the personal representative of Appellant’s estate as a party
pursuant to Pennsylvania Rule of Appellate Procedure 502. Nevertheless, we
will address the merits of the appeal because Appellant’s death does not
moot this appeal as our decision may affect the rights of his estate. See
Shiomos v. Commonwealth State Employes’ Ret. Bd., 626 A.2d 158,
158 n.1 (Pa. 1993) (noting that the death of the appellant while the appeal
was pending “does not render the case moot as the outcome may have
relevance to his estate …[]”).
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[T]he standard of review applicable to the
denial of an appeal nunc pro tunc is “whether
the trial court abused its discretion.” An abuse
of discretion is not merely an error of
judgment but is found where the law is
“overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill will as
shown by the evidence or the record.”
Freeman v. Bonner, 761 A.2d 1193, 1194-1195
(Pa. Super. 2000) (citations omitted).
Allowance of an appeal nunc pro tunc lies at
the sound discretion of the Trial Judge. More
is required before such an appeal will be
permitted than the mere hardship imposed
upon the appellant if the request is denied. As
a general matter, a Trial Court may grant an
appeal nunc pro tunc when a delay in filing [an
appeal] is caused by “extraordinary
circumstances involving ‘fraud or some
breakdown in the court's operation through a
default of its officers.’” [W]here an appeal is
not timely because of non-negligent
circumstances, either as they relate to
appellant or his counsel, and the appeal is filed
within a short time after the appellant or his
counsel learns of and has an opportunity to
address the untimeliness, and the time period
which elapses is of very short duration, and
appellee is not prejudiced by the delay, the
court may allow an appeal nunc pro tunc.
McKeown v. Bailey, 731 A.2d 628, 630 (Pa. Super.
1999) (citations omitted). Our Supreme Court has
made it clear that the circumstances occasioning the
failure to file an appeal must not stem from counsel’s
negligence or from a failure to anticipate foreseeable
circumstances. Criss v. Wise, 781 A.2d 1156 (Pa.
2001).
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Lenhart v. Cigna Cos., 824 A.2d 1193, 1195-1196 (Pa. Super. 2003)
(parallel citations omitted).
Here, Appellant plainly asserts that “[he] was not negligent.
[A]ppellant filed a timely appeal. … The extraordinary circumstances in the
present case are the livelihood of [Appellant].” Appellant’s Brief at 9.
Appellant does not provide any further analysis of how he was not negligent.
The trial court found that Appellant did not offer an excuse for his
complete failure to file a post-trial motion pursuant to Pennsylvania Rule of
Civil Procedure 227.1. Trial Court Opinion, 11/4/15, at 3-4. The trial court
reasoned as follows.
Appellant has failed to allege any sort [of]
fraud or breakdown in the court’s operations through
the actions of a court officer. Rather, in his motion,
Appellant has not articulated any reason at all for the
delay resulting in noncompliance with Rule
227.1(c)(2). In addition to failing to state a reason
for delay in the motion to reinstate, Appellant chose
not to avail himself of the opportunity to explain the
delay provided by the Superior Court, despite
receiving two extensions of time to submit the letter
to show cause. The [trial] court therefore cannot
compare the current factual situation to previous
instances where courts of this Commonwealth have
granted reinstatement of appellate rights nunc pro
tunc, as the factual situation is not on the record.
Appellant presents no extraordinary circumstances
warranting reinstatement of appellate rights.
Id. (citation omitted).
The trial court did not abuse its discretion by denying Appellant
permission to file post-trial motions nunc pro tunc. Appellant has repeatedly
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failed to offer any explanation of how his failure to file post-trial motions was
the result of anything other than his negligent noncompliance with Rule
227.1. In his previous appeal to this Court, he failed to reply to a rule to
show cause why the appeal should not have been dismissed for failing to file
post-trial motions, despite receiving two extensions of time to do so.
Superior Court Order, 290 WDA 2015, 5/5/15, at 1. Likewise, in his motion
to reinstate his appellate rights nunc pro tunc, he failed to disclose the
reason he did not file post-trial motions. Moreover, Appellant’s brief lacks
any analysis of how his failure to file post-trial motions was not negligent.
“The grant of nunc pro tunc relief is not designed to provide relief to parties
whose counsel has not followed proper procedure in preserving appellate
rights.” Lenhart, supra at 1197-1198. Therefore, Appellant’s attempt to
seek nunc pro tunc relief to excuse his failure to comply with Rule 227.1
fails.
Based on the foregoing, we conclude that the trial court did not abuse
its discretion or err as a matter of law in its denial of Appellant’s motion for
permission to file a post-trial motion nunc pro tunc. See id. at 1196.
Accordingly, we affirm the trial court’s May 14, 2015 order.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
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